The Anti-Environmental Bill, HB 1100

Paralyzing State Agency Action

Under the executive branch, Indiana’s state agencies have experience in interpreting and enforcing Indiana’s laws. HB 1100 would significantly limit our state agencies’ ability to adopt timely and appropriate state standards to protect public health and the environment.

At its core, HB 1100:

Adds new burdens for agencies in adopting and renewing their administrative rules
Expands legislative involvement in the executive branch role in implementing state laws
Includes “no more stringent than” language that would prevent the state from adopting rules that are more stringent than corresponding federal rules

HB 1100 is astonishingly far-reaching with the potential to constrain all state administrative agencies, boards and commissions. This would no doubt limit executive branch authority to shape public policy on a variety of fronts and would require a part-time, citizen-led legislature to micro-manage state public policy on a vast scale. On the environmental front, limiting the authority of state agencies that play such a vital role in protecting public health, disadvantaged populations, and our environment is of particular concern.

“No More Stringent Than”

The term “no more stringent than” is not defined in the bill. This means there will be conflicting interpretations of how and when this restriction applies.

In many cases, federal regulations grant discretion to state agencies to craft state-specific rules. So, in instances where Indiana has been granted this discretion, it will be difficult if not impossible to determine which rule is “more stringent”.

Here are three environmental examples:

Narrative Standards: One example is Indiana’s water quality standards – which include both numeric and narrative water quality criteria, and together provide the foundation for the protection of Indiana’s rivers and lakes.
Designated Uses: Designated uses for waterways – which are the uses that the waterbody should support and are established by IDEM. These designations are Indiana specific, and best decided by Hoosiers and our state officials.
Storm water Pollution Plans: Storm water pollution prevention plans are also based on narrative criteria and Indiana-specific best practices for controlling storm water pollution.

A Timeline of House Bill 1100 Thus Far

January 4, 2022: Introduced and assigned to House Committee on Government and Regulatory Reform
January 12, 2022: Passed out of committee with a 8-2 vote
January 20, 2022: Referred to House Committee on Ways and Means
January 24, 2022: Passed out of committee with a 10-5 vote
January 26, 2022: Passed a floor amendment vote on the House floor
January 27, 2022: Passed the House with a 61-29 vote
February 2, 2022: Referred to Senate Committee on Commerce and Technology
February 9, 2022: We expect a committee hearing on HB 1100 to occur on February 17th.

The Right way Forward

Another administrative rulemaking bill – SB 264 – has passed the Senate and is awaiting committee assignment in the House. SB 264 was amended in committee to provide for creation of an administrative rules review task force to consider various state rulemaking processes and compare Indiana’s approach to other states. Instead of making hasty, ill-advised substantive rulemaking changes as proposed in HB 1100, it would be more prudent for legislators to proceed with a task force that provides a more comprehensive, deliberate review of rulemaking practices in Indiana.

TAKE ACTION NOW (as of 2/8/2022)

Contact your state senator: Encourage your state senator to oppose HB 1100, and to convey their opposition to Senator Chip Perfect (R-Lawrenceburg), Chairman of the Committee on Commerce and Technology
Spread the word: Share the threats to Indiana this bill poses with your family, friends, neighbors, and congregations. In addition to this page, HEC has created the below graphics to help you get the word out. Download them or share our Instagram post to help raise awareness about this damaging bill. Be sure to use the hashtags #ProtectIN #RedTape #NoToHB1100

Agency Oversight and Rulemaking Procedures

What impact would HB 1100 have?

Paralyzing state agency action

Indiana is granted considerable responsibility by the US Environmental Protection Agency to implement air and water quality plans as well as clean-up programs. The language of HB 1100 could paralyze IDEM in implementing such plans & programs — for fear that the agency would be sued.

Multiple checks and balances a...

Multiple checks and balances are already built into the Indiana rulemaking process

Indiana’s existing laws already ensure that Indiana does not act irresponsibly in enacting new environmental protection safeguards or other agency standards.

The Environmental Rules Board is required by law to study carefully whether each provision of a regulation that could be considered more stringent than the federal law specifically to assure the benefit to the State is worth the cost of being more stringent.
A rule must also be evaluated for its monetary impact on regulated parties, taxpayers and consumers.
The Indiana Office of Management and Budget must do a fiscal impact assessment for rules with an estimated impact of $500,000 or greater.
The Indiana Attorney General must ensure a rule is adopted with statutory authority.

Paralyzing state agency action

More Federal Involvement

The “no more stringent than” requirement ironically shifts more power to the federal government, including U.S. EPA. Inaction by state agencies due to this policy may trigger direct involvement by federal agencies, where before the federal government relied on state agencies’ discretion that is built into federal environmental law. This is an impairment of states’ rights, not an affirmation.

Multiple checks and balances a...

More Intervention by the Court...

More Intervention by the Courts and Greater Litigation

Given that “more stringent than” is not defined, this will lead to confusion and uncertainty in implementing regulatory requirements, which will result in administrative law judges or the courts playing a bigger role in agency regulation.

In other states that have adopted “no more stringent than” policies, the failure to define such terms has generated significant litigation.

More Federal Involvement

More Regulatory Uncertainty

Economic harm, not benefit

HB 1100 will do little to attract new business, create jobs, or promote economic growth in Indiana but could very well have the opposite effect. Indeed, study after study reveals that states with strong environmental policies have not inhibited their industries’ competitiveness, stifled employment, or hindered economic growth. Rather, the empirical data confirms that states that are more protective of their natural resources consistently out-perform states with weak environmental regulations by all economic measures.

What’s more, economic development officials at the state and local level, including the Indiana Economic Development Corporation, now recognize the essential role that quality of life and quality of place play in attracting and retaining talent, and in business recruitment. Hampering our state agencies’ ability to provide for public health and safety, and protect our environment and natural resources, will diminish our quality of life.

More Regulatory Uncertainty

Slower Responsiveness to Citiz...