Introduction
Mr. Graddy indicated that we have a statute in Kentucky
that says that regulations to protect the environment
can be no more stringent than the national standards.
In other words, we have a law that says that we will protect
the environment as little as is required by federal law.
That is backwards. This law should be repealed and replaced
with a law that says we will search the nation to find
the highest level of protection that any other state has
and we will meet that level of protection. We should have
the highest quality environment, not the lowest quality,
lawfully attainable. – Marshall
Slagle, Northern Kentcuky Area Planning Commission
(1)
Although federal environmental regulations, such as the
Clean Air Act and Federal Water Pollution Control Act (Clean
Water Act), were meant to serve as baselines for state environmental
protection, many states have passed legislation that prevents
or restricts their ability to enact or enforce environmental
regulations more stringent than federal law. These state
“no more stringent” than federal law provisions severely
limit states’ ability to address serious environmental hazards
particular to, or extreme in, their state, and respond quickly
to new environmental risks. Faced with numerous federal
rollbacks in environmental protection, states – perhaps
more than ever before – need the freedom to enact laws protecting
the health of their population and their environment. Yet
today, more than half of the states have some type of “no
more stringent” regulations.
Some states have enacted broad, sweeping restrictions on
their ability to enact rules stronger than required under
federal law. Pennsylvania’s “Regulatory Basics Initiative”
(Order 1996-1) is a prime example. The Pennsylvania initiative
aims to identify “all regulations which contain standards
or requirements more stringent than Federal law” and amend
them to be no more stringent than federal rules.(2)
South Dakota law prohibits the adoption of rules more stringent
than federal rules regarding (a) environmental protection;
(b) mining, oil, and gas; (c) water rights; or (d) water
management, if there are corresponding federal rules or
federal rules “governing an essentially similar subject
or issue.” South Dakota’s law bans the adoption of rules
more stringent than federal even if following the rule is
voluntary.(3)
In New Jersey, a 1994 Executive Order, signed by then-Gov.
Christine Whitman, ordered state regulations to be no more
stringent than their federal counterparts.(4)
The result, according to a publication by the Environmental
Law Institute, was that “certain wastes formerly defined
as hazardous in New Jersey, such as PCBs and waste oil,
became mere solid wastes as a result of this casing of New
Jersey' s regulations.”(5)
Tennessee statutes allow the legislature to invalidate
any rule “that imposes environmental requirements or restrictions
on municipalities or counties that are more stringent than
federal statutes or rules on the same subject, and that
result in increased expenditure requirements on municipalities
or counties beyond those required to meet the federal requirements.”(6)
Other states that have passed broad “no more stringent”
regulations include Kentucky and Alaska. Wisconsin, Florida,
Okalahoma, Indiana, Ohio, and North Carolina have similar
restrictions that can be overridden where more stringent
rules are deemed necessary to protect health and environment,
or cost-benefit analysis has shown that the new rules are
achievable with current technology and not unduly burdensome
to state agencies.
Some states have enacted “no more stringent” restrictions
covering particular environmental regulations. Most often,
these address limitations on rules and pollutant limitations
more stringent than those outlined in the federal Clean
Air and Clean Water Acts. Ohio statutes, for example, confine
the Director of Environmental Protection to adopting ambient
air quality standards “that are consistent with and no more
stringent than the national ambient air quality standards
in effect under the federal Clean Air Act.”(7)
Oregon statutes bar the state’s Environmental Quality Commission
and Department of Environmental Quality from “promulgat[ing]
or enforc[ing] any effluent limitation upon nonpoint source
discharges of pollutants resulting from forest operations
on forestlands,” unless mandated under the federal Clean
Water Act.(8)
Other specific “no more stringent” state laws regulate
mining or hazardous waste regulations. Colorado, Montana,
New Mexico, Texas, and Virginia are among those that have
enacted restrictions particular to hazardous waste management,
storage, transportation, and/or corrective action. States
that restrict laws regarding surface and underground mining
include Illinois, Missouri, Kentucky, West Virginia, and
Wyoming.
Most of these specific regulations allow states to adopt
standards or rules more stringent than required by federal
law, if they demonstrate that such action is required to
address an immediate public or environmental danger evidenced
by “proven” scientific data, and feasible using existing,
cost-effective technology as decided by a commission. Although
such laws are preferable to state laws that do not permit
stringency beyond federal laws without exception, these
are still formidable restrictions on states’ rights. It
is often difficult to prove beyond all doubt that more stringent
regulations are necessary to protect health and environment,
or to demonstrate that conclusions are based on “proven”
science.
In 2002, the federal government took steps to dramatically
weaken environmental protections outlined in its own new
source review program under the federal Clean Air Act. Already,
in 2004, several U.S. states, recognizing these rollbacks
significantly impede efforts to protect human and environmental
health, have introduced legislation to ensure that their
clean air provisions be no less stringent than those of
the federal government and reinstate minimum air quality
standards to levels before the 2002 federal rollbacks. In
contrast, states with “no more stringent” regulations may
find themselves severely limited in their ability to take
steps to protect their population and environment. Lawmakers
in states with such regulations should act quickly to repeal
them, and those in states without such provisions should
be wary of “no more stringent” proposals that tie the state’s
hands when it wants to act to protect human and environmental
health.
If you would like more information on state “no more stringent”
laws, or would like to request a list of existing laws,
please contact SERC at info@serconline.org.
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