Like so many of us, I’m not a native of Massachusetts. I choose to live here because of our beautiful coasts, our rich history, and our culture of environmental stewardship. More often than not, we are at the forefront of environmental innovation. We lead the nation on energy efficiency, environmental justice, and community preservation. And what better illustration of our leadership is there than the 2006 trip to the U.S. Supreme Court we took in Massachusetts v. EPA to compel EPA to use its authority to regulate greenhouse gases for the first time. EPA is about to finalize and release its Clean Power Plan, which does just that – regulating greenhouse gas emissions from the nation’s enormous fleet of power plants.
Unfortunately, Massachusetts is now facing a crisis that has the potential to rollback regulations that have led to some of our most celebrated environmental accomplishments. Within his first 100 days in office, Governor Charlie Baker issued Executive Order 562, which could swing the pendulum towards undoing much of the regulatory trailblazing that I so readily identify with my adopted state.
E.O. 562 orders state-level executive agencies to conduct a comprehensive review of all Massachusetts regulations to ensure that they are clear, uncomplicated and efficient, in an attempt to preserve our competitive edge for business. That sounds like a completely logical and worthy effort. But the order goes too far, proscribing Massachusetts regulations that are more stringent than the relevant federal standards. For me, that’s where the order’s problems start, but hardly where those problems end.
Our nation’s environmental regulatory framework is squarely rooted in a system of federal delegation. The federal government provides the structure, and in broad strokes, provides funding for individual states to tailor and implement regulatory programs that meet their own specific needs. A key provision is that those state programs must be at least as stringent as the federal programs. States are free to issue regulations that are more protective than the corresponding federal programs, and historically many states including Massachusetts have done just that. Federal standards are intended to be a floor, not a ceiling.
A classic example of this framework is the federal Resource Conservation and Recovery Act (RCRA), which, among other things, regulates the handling of garbage and other solid waste. RCRA provides baseline standards, and delegates its enforcement to the states, whose programs must be at least as stringent as that federal baseline. Last year, Massachusetts tightened its state program by banning commercial organic waste. Organic waste is now diverted to composting and other reuses, which can also generate energy by capturing the methane gas released during decomposition. Massachusetts has gone a step beyond the federal RCRA baseline, and we’re leading the nation with our progressive approach to organic waste. By assuming that weaker regulations are more inviting to the business community, E.O. 562 could do away with commercial organic waste diversion, a program that is likely to boost the economy by fostering local composting, organic waste-to-energy conversion, recycling, and reuse businesses.
Additionally, E.O. 562 may improperly constrain the authority of the legislature, whose province it is to enact legislation, including some legislation, like the Global Warming Solutions Act or the Green Communities Act, obligating state executive agencies to issue regulations that are more stringent than federal requirements.
The order could also lead executive agencies to avoid the strictures and morass of E.O. 562 entirely by issuing guidance documents, which cannot be challenged in court, rather than issuing actual regulations that have been through a transparent public review and comment process. And one has to wonder how agencies that are now much leaner following Governor Baker’s early retirement initiative will have the staff resources to implement current regulatory programs, while concurrently committing significant resources to the arduous task of reviewing the thousands of regulations currently on the books before E.O. 562’s March 31, 2016 completion deadline.
In a letter to the Governor signed by a group of more than 75 organizations, which included Conservation Law Foundation along with other environmental, energy, business, labor, public health, public safety, consumers, social services organizations, we implored the Governor to ensure a transparent, inclusive, and fair regulatory review process.
I urge you to let the Governor know that you value Massachusetts’ suite of environmental regulations that have protected our precious natural resources and led the nation for decades. You can do so through the Governor’s new regulation review portal hosted by the Executive Office of Administration and Finance, the Governor’s lead agency on the regulatory review effort.
With robust public input, we can preserve our strong regulatory system that captures the progressive leadership and spirit of innovation that has drawn me and so many others to magnificent Massachusetts.