Governor Walker’s Proposal to Make the Natural Resources Board Advisory

Wisconsin’s largest business trade association, Wisconsin Manufacturers & Commerce (WMC) supports Governor Walker’s proposal to make the Natural Resources Board (NRB) advisory.
While WMC greatly respects the public service provided by many of the NRB’s current and former members, the time has come for reform.

The Department of Natural Resources (DNR) is a regulatory agency, and as such, imposes its policies through regulations that must follow strict public participation procedures prescribed in
Wisconsin Statutes Chapter 227 (Administrative Rules and Procedures). This process provides ample opportunities for public notice and comments. In addition, both the Governor and the Legislature must review and approve every regulation proposed by DNR, with the legislative review process providing additional public input through hearings and constituent
communications.
In many respects, this administrative rule making process is more open and transparent than the existing NRB structure, which is navigable to special interests like WMC or environmentalist
groups but not especially accessible to the general public. As successive Legislatures and Governors have added additional transparency and accountability to the administrative rules process through enactments such as 2011 Wisconsin Act 21, the need for an entity like the NRB has greatly diminished.
The NRB now adds little to the statutory process required to make DNR polices legally binding. In fact, the additional and unneeded approvals required of the NRB delay reform, create inefficiencies within the agency, and add no unique input that would somehow enhance the already vigorous public comment opportunities and oversight required by law. While we see little upside to maintaining the board’s current authority, there is a very real downside for business. The aforementioned delays can and do create significant costs for employers and don’t always result in corresponding environmental or public health benefits.
For example, the NRB held Wisconsin employers hostage to an unjustifiable and costly air regulation for nearly 25 years after it was repealed by the Environmental Protection Agency (EPA). This decades long obstinacy against Governors of both political parties, DNR staff, and the business community diverted precious agency resources away from regulations designed to actually protect public health and created substantial compliance costs for Wisconsin employers.This example, just one of many, serves as an unfortunate case study for why Wisconsin employers need reform at the NRB.
The Total Suspended Particulate Standard
The total suspended particulate (TSP) standard was a federal secondary air quality standard, promulgated into Wisconsin administrative code (Section NR 404.04(3), which essentially regulated dust particles. By definition, secondary air quality standards like TSP do not relate to public health, nor are they intended to protect public health. In 1987, the EPA revoked the federal TSP standard and replaced it with a health-based standard for particulate matter (PM10). Lacking either a federal mandate or scientific basis to justify the rule, DNR sought its repeal in 1989. The NRB rejected their attempt. During Governor Jim Doyle’s administration, both Secretaries Scott Hassett and Matt Frank sought to repeal the standard. In fact by that time, the passage of 2003 Act 118 (The Jobs Creation Act) created a statutory framework compelling the DNR to conform Wisconsin’s air standards to federal Clean Air At standards. In 2008, the NRB rejected the Doyle administration’s efforts to meet that statutory obligation, ignoring the clear will of the Legislature.
NRB’s Actions Hurt Employers and Cost Jobs
Compliance with the “Wisconsin Only” TSP standard proved to be very costly and time consuming for employers. Businesses were required to use predictive computer models to demonstrate theoretical compliance with the standard before new or renewed air permits were issued. This added significant costs and delays to the permitting process. WMC is aware of instances where businesses were forced to spend upwards of $500,000 to change the height of their stack to comply with a computer model for TSP. Incurring these costs did not result in an improvement to public health – they merely increased the cost of doing business in Wisconsin vis-à-vis other states.
NRB’s Actions Failed to Improve and may have Actually Harmed Public Health and the Environment
Governor Doyle’s DNR confirmed in a 2008 memo to the NRB that the repeal of the TSP standard would have allowed the State “to focus resources on particulate emissions which more directly affect public health.” The Department also noted the positive impact on permitting and staff resources that would have resulted from the repeal of the TSP standard: “If the TSP air standard is repealed, the review of air permit applications may be shortened, since the modeling and analysis for PM impacts would be focused solely on PM10 emissions.” Shortening the modeling analysis for air permits was also one of the specific recommendations from the Legislative Audit Bureau report on Wisconsin’s air permitting program released in February of 2004.
2011 and the Ultimate Demise of TSP
In order to compel the NRB to comply with their statutory obligation and repeal the TSP standard, WMC worked with the newly inaugurated pro-business majorities in the Legislature to see the rule suspended by the Joint Committee for Review of Administrative Rules (JCRAR). Even after this action by the Legislature, WMC was compelled to join the Great Lakes Legal Foundation in a petition to the NRB for repeal of the standard. After a dereliction lasting nearly 25 years that levied untold millions of dollars in unnecessary costs on Wisconsin employers, the NRB finally complied with its statutory obligations and repealed the TSP standard in June of 2011.
Reform is Justified and Necessary
The NRB’s actions relating to TSP are instructive. For two and a half decades the NRB acted not as a citizen advisory board but as a super legislature, defying the will of multiple Governors,
agency experts, and the Legislature. WMC believes that this Legislature must ask itself if it’s appropriate, given our constitutional separation of powers, to cede so much of its policy making
authority to an entity appointed by the executive branch and accountable to no one. Countless dedicated public servants have served honorably on the NRB over its long history and
we don’t dispute that some of their work has been beneficial to Wisconsin. Far too often, however, the NRB has been used as a weapon by special interests to attack their opponents when
those interests couldn’t achieve their goals through the Legislature. It’s a reoccurring problem that must stop. WMC respectfully requests that members of the Assembly and Senate retain
Governor Walker’s budget provisions to make the NRB an advisory body.
By Eric Bott, WMC Director of Energy & Environmental Policy