Holcomb pushes back on bill creating more legislative oversight over Indiana agencies

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Republican legislators want more oversight over Indiana's state agencies, making it more difficult for them to create new administrative rules.

But Gov. Eric Holcomb, also a Republican, and environmental groups are pushing back.

Under House Bill 1100 — authored by Rep. Steve Bartels, R-Eckerty — agencies will face new burdens for adopting rules. They will have to renew rules more frequently and also be required to submit to state lawmakers an economic impact statement and explanation of any penalty associated with a proposed new rule.

Even further, the bill says that none of those rules can be more stringent than corresponding federal rules. That raises serious concerns for state agencies, which are tasked with interpreting those federal rules and implementing them.

Environmentalists also fear the bill is aimed directly at them, because the state is given flexibility to create its own standards over business and industry — which could be more stringent — to protect natural resources.

Indiana Governor Eric Holcomb talks about precautions being taken ahead of an impending winter storm Wednesday, Feb. 2, 20221, at the Statehouse in Indianapolis.
Indiana Governor Eric Holcomb talks about precautions being taken ahead of an impending winter storm Wednesday, Feb. 2, 20221, at the Statehouse in Indianapolis.

“We’ve heard from many agencies that have concerns about House Bill 1100, its sweeping nature, and how it may interfere with the efficient delivery of services to Hoosiers and lead to unintended consequences," said Holcomb who rarely offers such sweeping critiques of legislation. "More time and evaluation are needed before implementing such significant changes.”

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Each year, state agencies pass dozens and renew hundreds of administrative rules. In a way, they are the nuts and bolts that keep the state running, covering topics from what all needs to be included in the rules for different Hoosier Lottery games to how administrative hearings should be handled when someone is accused of not paying child support.

Indiana has 49 agencies and more than 93,000 rules, Sen. Chris Garten, R-Charlestown, reminded the Senate Commerce and Technology Committee last week. In 2021, nearly 700 rules were approved or renewed, he said.

"Administrative rules have the binding authority of law," said Garten, the bill's Senate sponsor, "but they circumvent the Constitution and the lawmaking procedures."

The legislation also would require the attorney general to approve any emergency rules put in place by an agency before it takes effect. That provision could create some tension: Holcomb and both the current and past attorney general, despite all hailing from the same political party, have often been at odds over policy.

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Attorney General Todd Rokita, who routinely panders to the far right wing of his party, has been skeptical of most COVID-19 mitigation mandates, and questioned Indiana's COVID-19 data, pulled by the Holcomb administration.

This isn't the first bill to target the Holcomb administration. The conservative faction of the Republican party has focused on reigning in the executive branch's powers after Holcomb declared a state of emergency back in 2020 due to the COVID-19 pandemic, using it to at first shut down the state and later mandate masks.

Already Holcomb is entangled in a court battle with the General Assembly over the powers of the legislature, due to a bill lawmakers passed last year: House Bill 1123. That bill would allow lawmakers to call themselves back into a 40-day session during an emergency, a provision Holcomb has argued is unconstitutional.

Holcomb is awaiting a decision from the Indiana Supreme Court on the legislation.

Lawmakers also passed Senate Bill 263 last year, limiting local governments and Holcomb from restricting the right to worship in-person during an emergency.

Bartels, who previously emphasized the legislation is not meant to target any one person or agency, defended the necessity of his bill.

"I strongly believe the General Assembly, made up of elected representatives, should have more oversight over regulatory restrictions, penalties and fines to ensure state government operates in a way that best serves the people," Bartels said in a statement to IndyStar. "The bill is a proactive approach to government reform."

Stephen Bartels, Indiana Republican Representative, during the final scheduled day of the legislative session, Indiana Statehouse, Indianapolis, Wednesday, April 24, 2019.
Stephen Bartels, Indiana Republican Representative, during the final scheduled day of the legislative session, Indiana Statehouse, Indianapolis, Wednesday, April 24, 2019.

This legislation and its potential impacts extend far beyond the pandemic, and those in opposition argue it could hurt the state as a whole.

It would increase agencies' workloads by requiring them to readopt rules every four years instead of every seven years, as required now. The bill also contains the controversial "no more stringent than" language.

Many federal environmental programs are delegated to the states, according to an emailed statement from the Indiana Department of Environmental Management. That means each state is required to adopt statutes or regulations consistent with the federal law, IDEM said, but also includes discretion for each state to tailor its regulations and policies to "the specific needs of their state."

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The agency declined to say whether it supported or opposed HB 1100.

But Tim Maloney with the Hoosier Environmental Council worries that when a state exercises said built-in discretion, it will be seen as being more stringent. HB 1100 does not include a definition of "no more stringent" and it does not specify who gets to make those decisions.

"The only way to solve these disputes is if the parties go to court, and that's not functional," Maloney said. "If the legislature wants more certainty in regulation, then the 'no more stringent than' is going to give them more uncertainty."

Maloney said HEC has been fighting this issue for years. The state already has a 'no more stringent' law on the books that was passed in 2016 and primarily focused on IDEM. That law said that whenever the environmental agency proposes a rule that could be considered "no more stringent than" it has to notify the General Assembly and delay final adoption until a session has passed, giving the legislature the opportunity to respond.

Maloney said he has not heard any complaints about that law and doesn't know that it has ever needed to be used.

"So the question is why do this when we just adopted a compromise five years ago." he said. "Especially when it’s never failed in doing what it’s supposed to do."

It’s unclear which other state agencies would be impacted the most. Erin Murphy, Holcomb’s spokeswoman, didn’t respond to a question about which agencies have concerns.

Scott Manning, the Indiana Department of Transportation’s deputy chief of staff, said INDOT is neutral on the bill, because the agency doesn’t create new rules unless directed by state or federal law. Likewise, Stephanie McFarland, a spokeswoman for the Department of Labor, said the agency has rarely had a rule change, but she declined to comment further until a final version was passed.

The Department of Natural Resources — which regularly passes and renews rules related to recreation, wildlife, conservation and hunting also did not respond to questions.

Only one group, other than the authors and sponsors, have spoken in support of the bill during committee hearings: the Indiana Manufacturer's Association. That group has said during testimony that it supports the 'no more stringent' provision in particular.

Still, Maloney and others in opposition said they see a better way forward. Another bill about administrative rules, Senate Bill 264, would create a task force to look at various rulemaking processes and compare Indiana's approach to other states. Proponents of this bill say it provides a more comprehensive and deliberate review of the process rather than making abrupt changes to it.

That bill passed the Senate and is awaiting its third reading in the House.

Sen. Shelli Yoder, D-Bloomington, said that HB 1100 is a "massive overreach" and "hasty" in light of SB 264.

"If the General Assembly feels we need to adjust the way we establish rules and procedures to protect Hoosiers, we owe it to them to take the time to do it right," Yoder told IndyStar. She serves on the Senate Commerce and Technology Committee to which HB 1100 has been assigned.

"Our top priority as lawmakers needs to be safeguarding and supporting our citizens," she added. "HB 1100 would be a detriment to that goal."

HB 1100 has already been amended significantly since it was first introduced. Initially, it would have forced agencies to eliminate an existing rule every time they created a new one with a restriction or penalty. It also prohibited executive orders issued by a governor from being in effect for more than 180 days unless lawmakers approve an extension.

That provision was stripped out in the House, but Holcomb still has concerns.

The committee is poised to consider the bill on Thursday before it can move to the floor for a vote.

Call IndyStar reporter Kaitlin Lange at 317-432-9270. Follow her on Twitter: @kaitlin_lange.

Call IndyStar reporter Sarah Bowman at 317-444-6129 or email at sarah.bowman@indystar.com. Follow her on Twitter and Facebook: @IndyStarSarah. Connect with IndyStar’s environmental reporters: Join The Scrub on Facebook.

IndyStar's environmental reporting project is made possible through the generous support of the nonprofit Nina Mason Pulliam Charitable Trust.

This article originally appeared on Indianapolis Star: Indiana lawmakers push for more oversight over agencies after COVID-19