Legislative Approval of Clean Air Act State Implementation Plans

Jesse Heibel 6/22/2015

To comply with section 110 of the Clean Air Act, states must create a State Implementation Plan, or SIP, that consists of control measures that will be taken to ensure the state will meet National Ambient Air Quality Standards (NAAQS).

A number of states have statutes that require the legislature to approve or review section 110 SIPs before they are submitted to the U.S. Environmental Protection Agency for approval. 

These states fall into two categories:

  • States like Colorado, Maine and Wisconsin that have statues specifically mandating legislative approval of 110 SIPS.
  • States such as Idaho, Illinois and West Virginia that allow broad legislative veto powers over agency rulemaking through administrative procedures, effectively requiring legislative approval of all agency rules, including 110 SIPs.

Additionally, at least 19 states have limited state agency authority to adopt environmental rules and regulations more stringent than federal law requires. States also have required legislative approval or review of state plans to comply with the proposed Clean Power Plan, under section 111 of the Clean Air Act.

State Statutes Requiring Legislative Approval

Below are state statutes requiring legislative approval or review of Clean Air Act 110 State Implementation Plans.

Arkansas

Ark. Stat. Ann. §10-3-309

Requires a state agency to file final rules and regulations, as well as revisions, amendments and changes to regulations with the Bureau of Legislative Research. In addition, before any rule or regulation of any state agency may be revised, promulgated, amended or changed, a copy of the rule or amendment must be filed with the respective interim committees of the General Assembly or the Legislative Council. These bodies of the legislature may make nonbinding recommendations to an agency that it adopt a rule or regulation.

Colorado

Colo. Rev. Stat. §25-7-133

Requires the commission to report to the legislative council all changes to the state implementation plan adopted the prior year. Authorizes members of the General Assembly to request the chair of the legislative council to hold a hearing or hearings to review changes to SIPs contained in the report. Upon a request, requires the chair to conduct such review to determine whether the addition or change to the SIP accomplishes the results intended by enactment of the statutory provisions under which the addition or change to the SIP element was adopted.

Florida: Limited Scope Requirement

Fla. Stat. Ann. §120.541

Requires a proposed agency rule to be submitted to the Senate and House for ratification if a “substantially affected person” submits a proposal for a lower cost alternative and a “statement of regulatory cost” shows adverse costs or impacts that exceed certain established criteria.

Idaho

Idaho Code §67-5291

Requires the standing committees of the Legislature to review administrative rules and adopt a concurrent resolution approving or rejecting the rule.  

Maine

Rev. Stat. Ann. tit. 38, §585-A

Requires the department to meet with the joint standing committee of natural resources before making changes to the state implementation plan required by 110 of the Clean Air Act that would require new emissions reduction strategies.

Illinois

Ill. Rev. Stat. ch. 5, §100/5-110

Requires the Joint Committee on Administrative Rules to examine all proposed agency rulemaking. Requires the Joint Committee to look at alternatives to the rule.

New Jersey

N.J. Rev. Stat. Ann. §26:2C-8.14

Requires the Department of Environmental Protection to submit a semiannual report to the Senate Environment Committee and the Assembly Environment and Solid Waste Committee that summarizes the SIP and any amendments or supplements to that plan that have been made or proposed since the last semi-annual report was issued. The report is also required to analyze the compliance with the Clean Air Act.

South Carolina: Limited Scope Requirement

S.C. Code Ann. §1-23-115

Requires an assessment report and legislative committee approval for agency regulations that maintain compliance with federal law but are more stringent, have a substantial economic impact, and two members of the General Assembly request a report.

Tennessee

Tenn. Code Ann. §4-5-226

Requires administrative rules to be reviewed by the government operations committees of the Senate and House of Representatives. Requires the review to include a public hearing and a number of factors to be considered.

Wisconsin

Wis. Stat. §285.14

Requires the department to provide the standing committees of environmental matters with a report containing a new state implementation plan and supporting documents. Requires the secretary to respond to any comments from the chair of the standing committees. This subsection does not apply to a modification to a state implementation plan relating to an individual source.

West Virginia

W. Va. Code §29a-3-9

Any proposed agency legislative rule does not have full force until the authority is granted by an act of the Legislature. Creates the legislative rule-making committee that is tasked with reviewing all legislative rules of agencies.