Last Friday Governor Doug Burgum signed Senate Bill 2327 into law. The bill creates a new cabinet level position from the already existing Environmental Health Section of the North Dakota Department of Health and elevates it to the stand-alone "Department of Environmental Quality". In a nutshell, think of it as North Dakota’s version of the Environmental Protection Agency (EPA).
During the debate, I found three fundamental issues at hand regarding SB 2327:
1. Was it necessary to elevate the already functioning Environmental Health Section?
2. Would it create more efficiency?
3. Would it maintain or create primacy?
In considering all three questions, I found the answers severely lacking.
First, as previously mentioned, the Environmental Health Section was basically already an agency functioning within an agency. There was nothing to gain by making it into its own department.
Second, Rep. Todd Porter (R – District 34) – who was a co-sponsor of the bill – admitted to Rep. Rick C. Becker (R – District 7) during the floor debate in the House that he didn’t anticipate there being increased streamlining or efficiency with the creation of the department.
And third, there was no compelling case for primacy. Rep. Becker pointed this out in his comments on the floor when he expressed that he could not see how the Federal EPA would suddenly recognize more primacy simply because the person currently reporting to the head of the Health Department would now report to the governor.
The bill signed by the governor actually answers the primacy issue. The very first section of the bills says this:
"When the chief of the environmental health section of the state department of health has assurance from the necessary federal agencies that the state will meet all the primacy requirements after the transfer of authority, powers, and duties to the new department, the chief shall certify the same to the legislative management."
When the state must seek "assurance" from the federal government that it will have primacy, is that true primacy? If so, then those that supported SB 2327 have a far different idea of primacy than I do. The very fact that we must seek approval from Washington in final creation of the department tells me where the true primacy lies.
So, what is the idea of primacy to supporters of SB 2327? It is, as the bill says, to have the ability, in some cases, to be "more stringent than corresponding federal regulations". Imagine that, a state environmental agency more stringent than the federal one. As if the EPA wasn’t scary enough.
As part of its development, the Department of Environmental Quality will also have a 13 member advisory board. Ten of those thirteen members will be appointed by the governor. And while the department is required "not take final action on any rule or standard without first consulting the council", there is no obligation on their part to accept recommendations from the advisory board.
The Director of the department will have enforcement capabilities. And in addition to that, they will also have some rule-making authority. Meaning, the ability to create bureaucratic rules and regulations.
What the legislature passed, and what Governor Burgum signed into law, is the creation of an additional state agency that has the ability to grow into a larger monstrosity than the one advocated for on the Senate and House floors. If history is any indication, we will look back in future bienniums and see that all that was accomplished with SB 2327 was contributing to the growing hands of a state government behemoth. I hope I’m wrong.