Senate Bill 9 says agencies must cut their use of phrases including “must,” “shall,” “require” and “prohibit.”
Ohio Republicans are again pushing for arbitrary cuts in “regulatory restrictions” with a bill that, if enacted, could significantly weaken consumer, environmental, and public health protections.
A similar bill died in December when the last legislative session ended without final votes after conference committee work. Sens. Kristina Roegner, R-Hudson, and Rob McColley, R-Napoleon, have resurrected the proposal this session as Senate Bill 9.
The two lawmakers are chair and vice chair of the Ohio Senate’s Government Oversight and Reform Committee, which has held three hearings on the bill so far. A fourth hearing is on the agenda for today’s committee meeting at 10:30 a.m. Eastern time.
“SB 9 is an across-the-board 30% reduction of ‘regulatory restrictions’ without any concern over their impact on clean energy or our environment,” said Trent Dougherty, general counsel for the Ohio Environmental Council Action Fund. “Unless there are amendments to this bill, Ohioans could see a 30% increase in pollution, 30% reduction in quality of life for Ohio communities and 30% more roadblocks to our clean energy economy.”
“I find this legislation deeply troubling,” said Sen. Hearcel Craig, a Democrat from Columbus and ranking minority member for the Ohio Senate committee. “This number was selected without any factual evidence that it would benefit Ohioans.”
In Craig’s view, “Ohioans should be concerned with the increase in air pollution and the potential impacts this bill would have on our climate if this bill were to pass.” He likewise worries about the bill’s implications for social justice.
“The Ohio Departments of Jobs and Family Services, Health and Medicaid have rules and regulations that keep Ohioans safe and healthy and ensure they are equitably treated,” Craig said. “These are policies that I am terrified will go away due to this trend toward regulation reductions. We have a duty to protect our most vulnerable populations, and this legislation could impact the health and quality of life for many Ohioans.”
Word games
Many, if not most, state agency actions are authorized by statute, so it’s unclear how feasible it would be for many agencies to meet their targets under the bill.
Like earlier versions, SB 9 defines regulatory restrictions based on the use of words such as “shall,” “must,” “require” and “prohibit.” In addition to the bill’s percentage target, it would mandate that any new regulatory requirements could only be adopted if two other rules are cut. An agency likewise could not adopt any new rule if it would “cause the number of regulatory restrictions to exceed the state limit.”
Roegner’s sponsor testimony described the accumulation of new laws and regulations over time as “sludge in the economic engine.” To support her claim of Ohio’s many “restrictions,” Roegner referenced a linguistic analysis from George Mason University’s Mercatus Center. The Center for Responsive Politics has linked the group to the Koch brothers’ network.
“This study did not look at the purpose of these regulations, including whether they set standards for food or building safety,” Craig said. Instead, the report counted how many times various words were used, including “shall,” “must” and so on. “Cutting regulations just because certain politicians think our laws include the word ‘must’ too many times is not good public policy,” he said.
Roegner also cited work by the Mercatus Center to claim that U.S. per capita income would be about $13,000 higher if regulations had been held at 1980 levels from then until 2012. Yet the U.S. Environmental Protection Agency’s data for the same period show that the country’s gross domestic product grew dramatically as emissions of six common pollutants fell. Environmental regulation played a significant role in driving improved air quality.
Roegner’s testimony acknowledged that some regulations can have a positive impact. And SB 9’s text does call for consideration of rules’ continued need and adverse impacts on businesses or other persons or entities. Yet nothing in the bill or in her or McColley’s sponsor testimony requires an explicit cost-benefit analysis of rules before any rescission.
Another provision in the bill would require agencies to consider whether Ohio rules impose “a more severe duty or liability than restrictions in neighboring states in order to accomplish the same goal.” The language might be read to discourage more protective levels of regulation that might provide greater benefits than those of other states.
New provisions in the bill acknowledge that the executive branch can review agency rules at any time under Gov. Mike DeWine’s Common Sense Initiative. This year’s version also lets agencies ask the legislature’s Joint Commission on Agency Rule Review for adjustments to the bill’s requirements. Unless the legislative commission agrees, however, lawmakers might be able to invalidate rules.
Business vs. consumers?
Supporters of the bill that have testified so far include the Ohio Chamber of Commerce, Greater Cleveland Partnership, Americans for Prosperity-Ohio and others.
“A comprehensive inventory of agency restrictions will give policymakers a clearer picture of the state’s bureaucratic red tape, and capping regulatory restrictions will force the state to prioritize any proposed restrictions more carefully,” said researcher Greg Lawson in his testimony for the Buckeye Institute.
Testifying against the bill, Ohio Consumers’ Counsel Bruce Weston emphasized the need for public utility regulations and called for a focused approach to any rule review.
“We know that some regulations, like those for creating so-called electric security plans, should be eliminated,” Weston said. “Those plans can hinder the competitive market that we support for power plants and other technologies that are emerging.” Nonetheless, he said, public utility regulation is necessary to protect Ohioans from monopoly power.
“In some instances that monopoly power shows itself in undue influence by utilities in this state,” Weston said. In particular, the scandal surrounding FirstEnergy and others over Ohio’s nuclear and coal bailout law “is an example of how undue utility influence can negatively impact Ohio utility consumers.”
Along those lines, though, Weston noted that “House Bill 6 is also an example of creating more government interference and regulation in the power plant market, instead of reliance on power plant competition. So, repealing House Bill 6 is consistent with reducing government regulation.”
The “reckless” SB 9 bill could threaten utility customers in other ways as well, Craig noted. Some years ago, the Public Utilities Commission found that Duke Energy had violated a winter heating rule, leading to the deaths of an elderly widow and her disabled son in 2011.
“Those rules exist to protect vulnerable Ohioans,” Craig said. “We cannot arbitrarily cut regulations. Ohioans could suffer.”