July 24, 2013: The House and Senate members negotiating to resolve differences over the 2013 regulatory reform bill, House Bill 74, released a conference report this afternoon.
The twists and turns of regulatory reform over the last few years deserve a much longer discussion. For now, it is enough to say that many members of the General Assembly hate rules (or believe it politic to sound like they do), but the General Assembly has not figured out how to stop state agencies and local governments from adopting rules without also preventing them from doing things that need to be done to comply with federal law or to protect public health and safety.
That unresolved conflict surfaces again in the conference report on House Bill 74. The bill adds a section that puts a one-year moratorium on adoption of new local government ordinances that regulate something already addressed by state or federal environmental rules. The only exception would be for ordinances unanimously adopted by the local governing body. No limit on local government ordinances appeared in the versions of House Bill 74 that passed the House and the Senate, so its appearance in the conference report is something of a surprise. Language preempting local environmental standards did appear in a different Senate regulatory reform bill (Senate Bill 112); that bill proposed to permanently restrict local adoption of ordinances exceeding state and federal environmental standards with only limited exceptions. Although the conference report provision in House Bill 74 has a temporary effect, it would prevent adoption of any local ordinance dealing with an issue regulated under state or federal rules.
I am sure that the one-year moratorium to allow more legislative study of local preemption was intended to be a compromise of an issue the two chambers disagree on, but it creates two immediate problems for local government:
1. Many local ordinances deal with issues also regulated by state environmental agencies because state rules and environmental permits issued by the state for local government activities sometimes require adoption of a local ordinance.
2. Some of the most fundamental responsibilities of local government — such as addressing nuisance conditions, regulating development and maintaining public infrastructure — involve activities also regulated to some degree by state environmental agencies. In many cases, state rules and local ordinances use similar tools to solve entirely different problems. State stormwater rules have been adopted to protect water quality, but a local government may find it necessary to adopt stormwater standards to manage a local flooding problem. Under the House Bill 74 conference report, the existence of state stormwater rules would prevent a local government from adopting a local stormwater ordinance unless there was unanimous agreement on the content of the ordinance.
It is difficult to predict how big a problem the moratorium would be given the very different circumstances in cities and counties across the state, but it seems an unnecessary gamble. The legislature needs to take more time to understand how state environmental rules and local government ordinances relate to each other; a legislative study makes a lot of sense. But a study can be done without putting permits at risk and preventing local governments from addressing local problems.