Legislative Pulse: New Hampshire Struggles with Federal, State Mandates

Published June 13, 2017

Editor’s Note: Four-term New Hampshire state Sen. Andy Sanborn (R-Bedford) is chair of the Ways and Means Committee and serves on the Election Law & Internal Affairs Committee. Previously, Sanborn chaired the Health and Human Services Committee and served on the Energy and Natural Resources Committee.

Burnett: On January 18, less than 48 hours before President Donald Trump took office, the Obama administration’s Environmental Protection Agency issued a new permit requiring New Hampshire and three other states to manage their rainwater runoff from private and public property in ways specified by the federal government. What does this rule mean for New Hampshire’s municipalities, businesses, and people?

Sanborn: Because New Hampshire is one of four states under the National Pollutant Discharge Elimination System that don’t have the delegated authority to run their own storm-water programs, it appears that our states have become a testing ground for the imposition of more-restrictive requirements based on new agency “policies,” rule interpretations that have not been adopted, and unsupported scientific claims.

After EPA delayed or blocked updates to New Hampshire’s water quality efforts for years, it is no coincidence this new permit—the last one was issued in 2003—was released on January 18, 2017, just before the change in administrations.

Beyond ignoring the 10th Amendment—which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”—these new requirements disregard established EPA protocols for updating regulations and ignore the justification for the rule in the Clean Water Act.

One part of the new rules imposes phosphorus-reduction requirements on stream discharges for all communities on the Merrimack River, even though the river is not identified by the state as nutrient-impaired and the imposed nutrient limits are based on calculations the EPA itself has previously declared to be inapplicable to such situations.

If these permits remain in place without correction or revision, the costs and burdens to the people of New Hampshire and the state’s economy will be staggering.

With a total annual state budget of $5.7 billion, these new requirements will require 41 of our local municipalities to expend between $5 [billion] and $8 billion in the next five to 10 years, and more importantly, this permit, which has an effective date of June 1, 2018, will prohibit economic development in these towns without preapproval of every development by both EPA and our [state] Department of Environmental Services, which begs the question: When did EPA gain the right to decide whether or not a local community approves a small housing plan or commercial building expansion?

Burnett: Since you think the rule is unjustified in law or as policy, what is New Hampshire doing in the short term and in the long term to reverse EPA’s decision?

Sanborn: In our efforts to protect our state’s rights, we are pushing back against federal overreach in several different ways. Twenty-one of the 41 municipalities have banded together, engaged counsel, and brought an action in federal court. Additionally, I have submitted legislation to require our DES to apply for delegated authority, allowing New Hampshire to run the [National Pollutant Discharge Elimination System] program, and we have formally requested both the president and new secretary of EPA suspend or pull back the permit and perform a formal review of it.

To highlight the difference between being a delegated versus a non-delegated state, while regional delegated states are operating under permits, which tend to be 30–40 pages long, our permit is 260 pages. Not only is this new permit a phenomenal enforcement overreach, it also shows a level of political malice.

Burnett: New Hampshire has adopted a renewable-energy mandate and, with eight other states, is part of the Regional Greenhouse Gas Initiative. Do you think adopting these policies was a wise decision?

Sanborn: Up here in New Hampshire, where we rank as one of the top four states with the most expensive energy costs in America—especially when one looks at electrical rates, where our consumers are now paying 17 cents per kilowatt—many of us recognize much of this is due to legislative action coming from both sides of the aisle.

While everyone desires to leave the world a better place than when we found it, specific policies enacted by New Hampshire’s citizen legislature, [which has] minimal knowledge of complex environmental science, have resulted in financial challenges.

During the past 20 years, every time the legislature has weighed into energy policy, it has cost the people of this state more money—from imposing strict regulations on electric power markets to deregulating the system then taking the electric power system back to a semi-regulated market again to enacting [the Regional Greenhouse Gas Initiative] and a renewable portfolio standard with little oversight and understanding of the complex issues involved. Despite a lack of verifiable data proving these programs work, time and time again the legislature has tried to rejigger the programs, creating higher costs.

In the end, these programs are nothing more than tax-and-bait opportunities, where only the most sophisticated of companies benefit financially on the backs of middle-class energy users and small businesses.

State legislators considering fiddling with energy markets should consider a quote by cartoonist Scott Adams before acting: “[Legislators] like to solve problems. If there are no problems handily available, they will create their own problems.”

H. Sterling Burnett, Ph.D. ([email protected]) is a research fellow at The Heartland Institute.