When the legislature reconvenes next month, one of the bills lawmakers will be considering is a measure that could change Kentucky’s regulatory landscape. And experts say the changes could be particularly problematic for the state’s environmental regulations.
It’s a piece of legislation that bill sponsor, Republican Rep. Kenny Imes, said is in the spirit of Gov. Matt Bevin’s Red Tape Reduction Initiative. That program targets regulations that state leaders deem outdated or unnecessary and eliminates them.
But Imes’ bill takes it a step further. House Bill 50 sets out a “sunset” provision for every administrative regulation to expire after seven years. For rules that predate 2012, regulators will have two years to evaluate the measures and decide how to proceed.
“The sunset review will be in statute,” Imes said. “After seven years, [the regulations] die unless they come bring something back. It’s an automatic sunset.”
Republicans in charge
This isn’t the first year bills have been introduced to remake the chapter of Kentucky’s law that deals with promulgating administrative regulations. In the past, the measures haven’t had much success in the Democratically-controlled House of Representatives. But this year, for the first time in history, Republicans control both chambers of the state legislature and the governor’s mansion.
“The only thing I’m trying to do [with the bill] is make [regulators] review [regulations] to make sure they’re accurate, up-to-date and are needed, more than anything,” Imes said.
But according to environmental experts, the wholesale sunsetting of Kentucky’s approximately 840 environmental regulations could have a few unintended consequences.
One is a lot of busywork for state employees, perhaps to the detriment of other programs.
“[The Department for Environmental Protection] will be doing very little between now and the end of Governor Bevin’s term but reissuing existing administrative regulations, some of which are minimum requirements for federally delegated programs,” said attorney Kathryn Hargraves. She practiced law for the Kentucky Natural Resources and Environmental Protection Cabinet — the current cabinet’s predecessor — for 22 years.
In order to keep current and necessary regulations on the books, state agencies will have to go through all the routine rule-making steps.
They’ll have to propose the regulation, take public comment, and send the regulation to the Legislative Review Committee. Then, the rule will have to go through two legislative committees — the Administrative Regulation Review Subcommittee and the committee of jurisdiction — before it becomes law. Even if either committee finds the regulation deficient, the governor can overrule that finding.
‘By and large, the regulations protect people’
That’s a lot of work — both for state agencies and the legislators tasked with evaluating those regulations. Democratic Rep. Mary Lou Marzian sits on the Administrative Regulation Review Subcommittee.
“It would be unworkable because there are thousands of regulations,” she said. “And there may be some that need to be tweaked or even abolished. But by and large, the regulations protect people.”
Besides being a huge workload for government employees and legislative committees, Marzian said the mindset that regulations are inherently burdensome is problematic. She said some regulations could merit review and possibly be abolished, but Imes’ bill goes too far.
“It’s going way overboard,” she added. “It’s trying to shoot something with a cannon when we could use a BB gun.”
With environmental regulations in particular, some are required under federal law. Kentucky is tasked with enforcing federal programs like the Clean Air Act and Clean Water Act. These regulations are reviewed every few years anyway, but the commonwealth has to have the laws on the books, or risk the federal Environmental Protection Agency taking over the programs.
Attorney Randy Strobo said the automatic sunset provision could place Kentucky in a position where there’s a regulatory lapse. Strobo is a legislative consultant for the Kentucky Conservation Committee, which opposes House Bill 50.
“Where I can see there being a problem with this proposed legislation is that when those seven-year sunsetting requirements in the bill interfere with the state administration of these federal programs, especially those that are intended to protect the environment,” he said.
And for other regulations, Kathryn Hargraves said forcing them to go through the entire process every seven years leaves the door wide open for the weakening of regulations and causes regulatory uncertainty.
“So gridlock for DEP, logjam for the legislative committees, a bonanza for the lobbyists, mass confusion for the regulated community, and in the midst of this, what’s going to get lost in the sound and fury is protection of human health, safety and the environment,” Hargraves said.
“To me, this weakens regulation. And the idea of weakening regulation also will weaken the ability of our government to protect the environment,” he said. “And I’m one of those people who believes a strong protection of the environment is critical to the welfare of the state and democracy in general. If you don’t have a healthy environment, you can’t have healthy communities. And this would be something that has an impact on that.”
Imes said his bill isn’t meant to weaken essential protections, and he’s open to discussing changes to the legislation.
“It’s just trying to be sure they’re up to date and up to snuff with what we’re really intended to do to overall protect the public and not be burdensome on businesses, workers or recruiting new industry,” he said.
Imes said he’s scheduled to meet next week with Kentucky Energy and Environment Cabinet Secretary Charles Snavely to discuss how the bill could affect environmental regulations. A spokesman said the cabinet is aware of the bill and is tracking it.