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Earth Night

Chairman Resor, Chairman Greene, and members of the Committee:

The Environmental League of Massachusetts opposes these two bills, which would effectively bring all environmental and public health regulation to a halt and cost the commonwealth untold millions in new staffing.

Both bills include requirements for additional cost-benefit analysis before new regulations can be proposed. The Environmental League of Massachusetts and our partners in the environmental and public health communities have consistently opposed bills requiring cost-benefit analyses for environmental and public health regulations. The only goal of these bills is to halt all protections for our health and natural resources - and the repercussions will be great if they are allowed to pass.

We view these proposals as entirely unnecessary: DEP and DPH already carry out thorough assessment and public review to ensure reasonable regulations that are both reasonable and protective of public health and the environment. Furthermore, both agencies already consider cost-benefit information submitted by any interested party in accordance with existing administrative law (MGL c.30A).

There are several reasons why specific cost-benefit requirements should not pass in Massachusetts. Before detailing our specific concerns, however, we should point out the broader implications of enacting such a statute in Massachusetts. Nationally, the impetus for cost-benefit and risk assessment requirements has come from opponents of environmental protection generally. If this bill passes, the message will be, "Even Massachusetts passed a cost-benefit analysis requirement." Our Commonwealth has long been a model for environmental protection, and it is precisely because we have not succumbed to efforts by industry to weaken our environmental protections. We should both maintain our own high standards, and discourage those advancing more harmful bills in other states.

This bill will increase bureaucracy and lead to increased litigation.

This bill runs counter to efforts to "streamline" the regulatory and permitting process at DEP, and will only slow action at DPH. Lawyers will spend time determining whether a given regulation falls under the bill's purview. Economists must be hired to carry out additional cost-benefit analyses. And the regulatory review process will be protracted as advocates on both sides argue over the methods and assumptions of analyses carried out under the bill's requirements.

These bills will weaken protection of the environment and public health.

DEP and DPH are charged with implementing a whole host of environmental and public health laws via regulation. They are already hindered in their efforts by lack of resources. The new requirements under these proposals will increase the degree of effort required to implement those laws. The real impact of this will be that important laws passed by the legislature will take longer to implement, and changes updating existing regulations will be less likely - in both cases halting regulation that protects the public from unnecessary health risks and environmental harm.

These bills are anti-democratic.

The bill is intended to rein in agencies that their critics say are too responsive to public opinion and not guided enough by "good science." Elected legislators should be very skeptical of arguments that government is too responsive to public will. The regulatory process is already open to any cost-benefit analyses or risk assessment any stakeholder wishes to offer beyond the agencies' own charge to look at all factors in developing new regulation.

These bills unfairly targets regulations for public protection.

Why limit the requirements of increased analysis to DEP and DPH rulemaking? Shouldn't MassHighway carry out cost-benefit analysis for proposed highway projects? Or the Education Department for its "reform" proposals? Whether intended or not, limiting the new requirements to these agencies sends the message that their decisions are particularly in need of greater scrutiny.

These bills take aim at a problem that does not exist.

Many legislators have asked, "What is wrong with the agencies asking questions like these when they face major decisions?" The short answer to that question is, of course, "Nothing." Of course it is logical to consider costs and benefits. But we ask a companion question: "What is wrong, in practice, with the way DEP and DPH regulate now?" Is there any substantial evidence that the agency either makes irrational choices about what to regulate or issues rules in less than a careful, open manner? If this were the case, environmental and public health advocates would be at the forefront of an effort to gain more analysis. It is not the case, however.

Massachusetts should focus its resources on remaining in the forefront of improving public health and the environment, not forcing agencies to perform needless exercises.

Senate bill 1213 includes an additional provision making it even more untenable, which states that any Department of Environmental Protection regulation, guidance, or policy should be considered a local mandate.

The Department of Environmental Protection uses guidance and policy in many ways. For example:

• The nature of science is that we are always improving our understanding of the way things work in the real world. For example, our knowledge of sustainable water management has evolved immensely, effectively outdating the existing statutes that govern water withdrawals. As our understanding evolves, DEP has developed new guidance to help towns to manage their own water resources. This guidance does not represent a "whim" of the agency, but rather provides concrete, immediate steps that can be taken to keep municipal water safe and plentiful.
• Guidance documents from the Department of Environmental Protection provide technical assistance to towns, and will continue to do so in the aftermath of layoffs at the agencies that will reduce the amount of person-to-person support that is currently provided.
• Pollution knows no boundaries. State-wide regulations protect all of our citizens' health, even if they live across town borders. Will we leave it up to one town to decide whether the neighboring town deserves clean air or water? Environmental protections are too wide-reaching to open the door to selective adoption by municipalities.
• Technical updates to regulations occur frequently. For example, the most recent regulatory changes to the state Wetlands Protection Act have been clarifications of law and geared toward smooth, consistent, timely application, putting a stop to recurring appeals and delays. Would these changes to the regulations render the entire Act a local mandate?

We understand that municipalities are faced with tough fiscal times, and know that many are looking for ways to cut expenses. Environmental protections are not the place to start, however. What is lost cannot be regained or rebuilt. Instead, we urge you to explore new ways to help municipalities implement environmental protections. For example, the Environmental League has advocated for increases in fees to cover DEP's cost of implementing and enforcing environmental laws. The same logic could be extended to cover costs at the local level. Municipal commissions should be allowed to charge fees to help them carry out their roles and provide timely and informed services for their citizens and regulated entities. Cooperation among neighboring municipalities (e.g., pitching in to hire a professional conservation agent) could also be a cost-effective way to protect natural resources at the local level.

We refer you to a report prepared in 2000 by University of Massachusetts Extension in cooperation with agencies, associations, and educational institutions that work with municipalities, "The Local Capacity Building Project." This report documents the need to provide more support and training to local boards and commissions across a range of issues, and provides additional ideas for how to bring it to them. A summary of that report has been submitted to the Committee staff.

Thank you for the opportunity to weigh in on this important issue. We urge you to reject these bills.