Kentucky Senate to vote this week Senate Bill 178 – This bill would protect industries that want to avoid paying the full cost of controlling pollution at the expense of Kentuckians’ future health.
This bill would prohibit the Cabinet of Energy and Environment and the Cabinet of Health and Family Services from adopting any environmental or public health requirement that is more protective or broader than the minimum federal standards for air pollution, water pollution, lead poisoning prevention, hazardous and solid waste, coal and non-coal mining, drinking water protection, etc.
For any requirement without a federal counterpart, the bill creates new hurdles for regulation by requiring agencies to provide a high level of evidence of harm before taking action. In effect, the bill replaces the precautionary principle of using death tolls to avoid harm. This will make Kentuckians sicker and their health worse by delaying or preventing the protective measures needed to protect children, workers, people with compromised immune systems, and the public and environment from the risks of chemical exposure.
Well, you ask, there’s definitely an issue with this bill that needs to be addressed. Aren’t those agencies too rampant in the past, adopting unreasonable and unreasonable chemical exposure and other pollution control standards?
Well, no. In fact, of the more than 10,000 statutes proposed and revised by all state agencies in Kentucky over the past 20 years, approximately 40, or less than half of 1 percent of all statutes in effect, were deemed “defective” for any reason after review by two legislative committees and were subsequently repealed by the Legislature. And none of the cabinet rules were deemed flawed because the legislative committee found the pollution limits lacked a sound scientific or public health basis.
Surely, you ask, these new barriers must be necessary because there is no recourse if one of the two cabinets does come up with unreasonable chemical and pollution exposure limits?
Well, no. Indeed, pathways exist to challenge any regulation, whether new or existing, that is deemed arbitrary or unjust. Legislative committees have the power to request a re-examination of any existing statute at any time, and the courts are always open to legal challenges. There have been no instances in the past 20 years of a legislative committee doing so due to the standard’s alleged lack of scientific basis, and Kentucky court challenges to regulations based on a purported lack of scientific basis have been rare in the past 50-plus years.
There are certainly reasons for adopting a blanket “no tougher” policy and limiting agencies’ ability to set standards that protect the public. I mean, wouldn’t it be true that most legislators, who have family members living here, would be affected by state policy that we adopt absolute minimum requirements on air, land and water pollution control?
Therefore, they must have a compelling reason to vote against their own health and the health of their loved ones. Is it because the federal government is always smarter than us Kentuckians and can abdicate our authority to set standards that better protect our families and communities?
an enduring myth that has no bearing on reality
Well, unfortunately, you’re getting warmer. Congress directed in the Clean Air, Water, Coal Mining, and Drinking Water Act that minimum federal standards be adopted nationwide to end the “race to the bottom” among states and encourage states to do more if needed. However, Kentucky has turned the federal floor into a cap for some of our state’s mandated environmental programs by adopting a “no more stringent” policy on many of Kentucky’s environmental protection and workplace safety regulations.
SB 178 would extend “no more stringent than” straitjacket restrictions to all Kentucky environmental regulations that are part of an authorized federal program or similar regulations. The policy is based on a powerful myth – that strict environmental health and environmental protection standards are bad for business, and that taking the bare minimum is necessary to attract business and make us prosper. It’s a myth—an enduring belief unfettered by evidence. Existing empirical research has repeatedly demonstrated that sound and rigorous environmental protection programs and economic health can and do coexist. In fact, looking forward, states with the weakest environmental programs also tend to have among the worst-performing economies.
SB 178 will make “doing the bare minimum” our legacy for future Kentuckians, sacrificing the health of tomorrow for no reason to promote the short-term interests of those who profit from being able to avoid the full cost of controlling pollution.
Surely, you ask, in 2026, if these two Cabinets are trying to pass pollution limits ahead of or beyond what the federal government might do, there must be some special reason why the General Assembly suddenly feels the need to consider SB 178 and erect new barriers to these two Cabinets from adopting new environmental health and protection standards?
Well, now you get the idea. While the Cabinet rarely exercises the power to adopt more protective standards, they have that power over some state environmental and health programs, and the special interests that profit from using the public’s air, land and water as a dumping ground don’t want Kentucky to be able to adopt standards that limit its pollution or require them to clean up the mess faster or more rigorously than the federal government.
Need an example? Take the “forever chemical” PFA. Described as an “emerging chemical of concern,” PFAs are marketed and used in a variety of coatings and other consumer products, and millions of people are exposed to them. The U.S. Environmental Protection Agency (EPA) has now determined that PFA requires regulation due to adverse effects on human health.
The EPA has developed a strategy to address the PFA problem that will take years to fully implement, and in the meantime, the bill would block both state cabinets from taking action to protect Kentuckians by setting limits on sewage sludge used as fertilizer on farmland or establishing standards for cleanup of PFA-contaminated soil and groundwater. Neither cabinet was able to adopt new demands based on the precautionary principle, delaying action until actual harm was apparent and widespread.
And because all environmental regulations in Kentucky sunset and must be recertified every seven years, SB 178 could be read as applying to those regulations and would result in a significant diversion of agency resources to rejustify existing regulations that have already been reviewed twice before the existing standards can be re-adopted based on the new and unreasonable standards of scientific “demonstration” of harm in SB 178.
Kentucky has passed regulations to regulate NORM (naturally occurring radioactive material) in oil fields. It has adopted water quality standards to limit chloride to protect drinking water and aquatic life. Developed standards for cleanup of carcinogenic chemicals in soil from underground storage tanks and cleanup standards for Superfund hazardous sites. All of these standards were developed and adopted to meet the needs of Kentucky, are based on accepted science, and have been reviewed by legislative committees and found no deficiencies. None have a federal counterpart. Everyone could be at risk if it were reviewed again under the Act’s unreasonable standard of proof of harm.
SB 178 is a dangerous policy that places an unreasonable burden on the judgment of agencies trained and entrusted to protect public health and the environment.
If the General Assembly truly believes it can better control chemical exposure, set responsible pollution limits, and reduce contamination of air, land, and water by emerging pollutants from an unconsented, uninformed public, then abolish these agencies and get on with it.
Otherwise, for God’s sake, or more importantly, for your family’s sake, let these agencies do their job. SB 178 will make “doing the bare minimum” our legacy for future Kentuckians, sacrificing the health of tomorrow for no reason to promote the short-term interests of those who profit from being able to avoid the full cost of controlling pollution.
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