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.