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Thursday, May 19, 2005

Environment - Wolkins' "no more stringent" memo may be less than billed

I've been able to obtain a copy of the much discussed Memoranum of Understanding between state Rep. David Wolkins and the Daniels administration.

[This entry does not mark a continuation of the Indiana law Blog, but rather a follow-up to an earlier promise to post a copy of the Wolkins memo. In my April 27th entry, I said that "I have received no response at all to my request via email to the Governor's press secretary" for a copy. Again today I emailed a request to the Governor's press secretary, but as of this writing again have received no response at all.]

Some readers will recall the April 27th ILB entry, quoting from Martin DeAgostino of the South Bend Tribune's story, headlined: "Stalled in committee, environmental bill resurfaces: Move to bar tougher pollution rules than feds' emerges as Daniels' policy statement."

Other stories on topic that have appeared since I stopped updating the ILB include this May 4th editorial in the Fort Wayne Journal Gazette. Some quotes:

A memo outlining an agreement for a rulemaking policy by the Daniels’ administration from Wolkins to Lt. Gov. Becky Skillman is cause for concern. The memo indicates that the governor would simply refuse to sign proposed rules that are stricter than federal standards. The result of the memo, if it is a reflection of administration policy, is a rare agreement between it and one legislator to circumvent the legislative process and enact legislation that failed in the General Assembly. It would create an administrative policy that is contrary to the will of the people elected to represent the public’s interests. * * *

Gard says she has not heard anything official from the Daniels administration, and until she does, she is willing to give the administration the benefit of the doubt. She is more inclined to think of the memo as an effort to end a stalemate rather than a slap in her face. She plans to take part in meetings this summer to discuss environmental issues. But she also says she can’t picture herself ever agreeing to sign a bill that would take away the state’s authority to create useful environmental laws in the best interest of Hoosiers. “I don’t feel any less strongly than I did two weeks ago,” Gard says.

The Munster (NW Indiana) Times had a story last week (May 10th) by Angela Mapes, headlined "Lawmaker refuses to let environmental bill die." Some quotes from that story:
Now, in a memo provided by the governor's office last week, Wolkins said he understood Republican Gov. Mitch Daniels would not sign any proposed rule that is more stringent than federal standards unless the rule could be justified by "a positive cost-benefit analysis and demonstrated benefits to the health of Hoosiers."

Friday, Daniels said he did not perceive the memo from Wolkins to be another end-run around the Legislature -- specifically around Sen. Beverly Gard, R-Greenfield, who adamantly opposes the no-more-stringent provision and used her influence as the Senate Energy and Environmental Affairs chairwoman to see that it didn't pass on her watch.

"I do believe Gard had the right side of the argument, that the hands of the state shouldn't be tied," Daniels said. "But I don't believe it will have any practical effect."

Gard said she has not had any communication from Daniels or Lt. Gov. Becky Skillman regarding the administration's position on the no-more-stringent rule.

"I don't know whether that (memo) reflects the administration's view or not, because it was not issued by the administration," Gard said. "I don't know if this is something that Wolkins concocted." If Daniels decides to take the matter into his hands, that's his call, Gard said.

However, she will always oppose the measure in the Legislature, she said. The state should be able to react in a timely fashion to public health concerns that can be addressed with environmental laws -- something Gard believes would be impossible with a no-more-stringent policy in place. "If talks are aimed at changing my mind, that's not going to happen," she said. "I think they found out I can be pretty stubborn."

Bowden Quinn, who represents the Sierra Club, the Izaak Walton League and Michigan City-based Save the Dunes Council, said Friday he did not believe the memo meant anything except that the governor's administration would enforce statutes put in place a few years ago that require IDEM to make a case for state laws that trump federal ones.

Sandra Flum, IDEM communications and legislative director, said the agency is moving forward slowly in addressing Wolkins' memo, which calls for IDEM Commissioner Tom Easterly, Director of Agriculture Andy Miller, Wolkins and Gard to meet and resolve the policy conflict "by the end of this year if possible."

"There was a lot of tension during the session, trying to figure out where the real intent is," Flum said. "I would hate to see this come up next session in the same manner that it did this year."

Today the Munster (NW Indiana) Times has an editorial on this issue, titled "Make it clear that Indiana won't be restricted by feds." Some quotes:
An ill-advised bill before the Indiana General Assembly this year was fortunately killed before it tied the state's hands on environmental regulations. * * *

Daniels wants Indiana to be a business-friendly state. That's good, but if federal regulations are weakened to the detriment of Hoosiers, state regulators need to be able to protect citizens here. Daniels needs to make that clear to them.

Here is the 4/25/05 Wolkins Memorandum. As I note in the heading to this entry, it may be, at least on its face, "less than billed."

Here are the problems I see. The memo says "Until this issue is resolved, the Governor will not signed any proposed rule that is more stringent than federal standards ...". To my mind, this issue was resolved when the General Assembly failed to enact Wolkins' language into law.

Second, I see the memo as meaningless insofar as future rulemakings are concerned, because in the real world no rule that the Governor doesn't want is ever going to be proposed by IDEM, much less passed by the Boards. I've never seen a Governor receive a rule he had to veto in the many years I've been following Indiana environmental rulemaking -- they just don't make it that far. The one I do remember that apparently almost slipped by was the pretreatment rule passed by the Water Board that was somehow perhaps "mislaid" by IDEM and never sent on to then-Governor Bayh. (But no one has ever been able to explain the problem with that particular proposal, which I believe was required by the feds to be enacted by the state, and which in fact was adopted as a rule several years later.)

Posted by Marcia Oddi on May 19, 2005 10:59 AM
Posted to Environment | Indiana Government