Pending in the Kentucky Senate, with a possible vote this week, is Senate Bill 178 — a bill that would trade Kentuckians’ future health to protect industries that want to avoid paying the full costs of controlling their pollution.
The bill would prohibit the Energy and Environment Cabinet and the Cabinet for Health and Family Services from adopting any environmental or public health requirement more protective or more broad than any counterpart minimum federal standard for air pollution, water pollution, lead poisoning prevention, hazardous and solid waste, coal and non-coal mining, drinking water protection and more.
For any requirements without a federal counterpart, the bill sets new barriers to regulations by requiring high levels of proof of harm before the agencies could act. In effect, the bill replaces the precautionary principle of avoiding harm with body counts. It will make Kentuckians sicker and less healthy by delaying or preventing adoption of protections that are needed to protect children, workers, those with compromised immune systems, and the public and environment from risks of chemical exposure.
Well, you ask, certainly there must be a problem that needs to be solved with this bill. Haven’t those agencies gone hog wild in the past and adopted unreasonable and unjustified chemical exposure and other pollution control standards?
Well, no. In fact, for the more than 10,000 regulations that have been proposed and amended by all state agencies during the past 20 years in Kentucky, around 40, or less than one-half of 1%, of all regulations that went into effect were found “deficient” for any reason after review by two legislative committees and were later nullified by the legislature. And none of these cabinets’ regulations have been found deficient because the legislative committees found the pollution limits to be lacking in sound scientific or public health basis.
Certainly, you ask, there must be a need to impose these new hurdles because there is no recourse if one of the two Cabinets does propose chemical and pollution exposure limits that are not justified?
Well, no. In fact, there are existing avenues for challenging any regulation, new or existing, that is believed to be arbitrary or unjustified. The legislative committees have the power to call up for a rereview any existing regulation at any time, and the courts are always open to entertain a legal challenge. There have been no instances in the past 20 years when the legislative committees have done so based on an alleged lack of scientific basis for the standard, and Kentucky court challenges to regulations based on lack of scientific basis have been few and very far between in the past 50-plus years.
Certainly, then, there must be a reason for adopting an across-the-board “no more stringent than” policy and hamstringing the agencies’ ability to set standards protective of the public. I mean, don’t most of the legislators have family members living here who will be affected by a state policy of doing the absolute minimum required of us for air, land and water pollution control?
So there must be a compelling reason for them to vote against their own health and that of their loved ones. Is it because the federal government is always smarter than we Kentuckians, so it’s OK to give away our power to ever set standards that are more protective of our families and communities?
A persistent myth untethered from reality
Well, you’re getting warmer, unfortunately. Congress directed in clean air, water, coal mining and drinking water laws that minimum federal standards be adopted nationwide to end the “race to the bottom” among the states, and it encouraged states to do more where needed. Yet Kentucky turned that federal floor into our state ceiling for some delegated environmental programs by adopting a “no more stringent than” policy that constrains many of the environmental protection and workplace safety regulations in Kentucky.
SB 178 would extend that “no more stringent than” straitjacket to all Kentucky environmental regulations that are part of or are similar to a delegated federal program. The policy is based on a powerful myth — that strong environmental health and environmental protection standards are bad for business, and that doing the minimum is necessary to attract business and make us prosperous. And it is a myth — an enduring belief untethered from the evidence. The empirical studies that are available demonstrate again and again that sound and rigorous environmental protection programs and economic health can and do coexist. In fact, looking over the horizon, the states with the weakest environmental programs also tend to be among the lowest performing economies.
SB 178 would make “doing the minimum” our legacy to future Kentuckians, trading away tomorrow’s health for no good reason to further the short-term interests of those who profit from being able to duck the full costs of controlling their pollution.
Certainly, you ask, there must be some particular reason, in 2026, for the General Assembly to suddenly feel the need to consider SB 178 and to erect new barriers to adoption of new environmental health and protection standards by these two cabinets if they try to adopt pollution limits before or to go above what the federal government might someday do?
Well, now you’ve got it. Even though the cabinets have very infrequently exercised their authority to adopt more protective standards, they have that power for some state environmental and health programs, and special interests who have profited from being able to use the public’s air, land and water as their dumping grounds don’t want Kentucky to be able to adopt standards to limit their pollution or require them to clean up their messes any faster or more rigorously than the federal government.
Need an example? Take PFAs, the “forever chemicals.” PFAs are known as an “emerging chemical of concern” which were marketed and used in a wide array of coatings and other consumer products to which millions have been exposed. PFAs have now been identified by the U.S. Environmental Protection Agency (EPA) as in need of regulation due to adverse health effects on humans.
EPA developed a strategy for addressing PFAs which will take years to fully implement, and meanwhile, this bill would hamstring the two state cabinets from acting to protect Kentuckians by setting limits on sewage sludges used as fertilizer on farmlands or from setting cleanup standards for PFAs-contaminated soil and groundwater. Neither cabinet would be able to adopt new requirements based on precautionary principles, delaying action until actual harm is manifest and widespread.
And because all Kentucky environmental regulations sunset every seven years and must be recertified, SB 178 could be read to apply to them and would cause substantial diversion of agency resources to re-justify existing regulations that have already been twice reviewed, against the new and unreasonable standards in SB 178 of scientific “proof” of harm before those existing standards could be readopted.
Kentucky has adopted regulations to regulate oilfield NORM — naturally occurring radioactive material. It has adopted water quality standards to limit chlorides in order to protect drinking water and aquatic life. It has established cleanup standards for carcinogenic chemicals in underground storage tank soil and for cleaning up superfund hazardous sites. All of these standards were developed and adopted to address Kentucky’s needs, were based on accepted science, were reviewed by legislative committees and not found deficient. None had federal counterparts. And all could be placed at risk if reviewed again against the unreasonable standards of proof of harm in this bill.
SB 178 is dangerous policy and imposes unreasonable burdens on the exercise of the judgment of agencies who are trained in and entrusted with protection of the public health and environment.
If the General Assembly truly believes it can do a better job of controlling chemical exposure, setting responsible pollution limits and curtailing the exposure on an unconsenting, unknowing public to pollution of their air, land and water by the emerging pollutants of concern, just abolish the agencies and have at it.
Otherwise, for goodness’ sake, or more to the point, for your family’s sake, let the agencies do their job. SB 178 would make “doing the minimum” our legacy to future Kentuckians, trading away tomorrow’s health for no good reason to further the short-term interests of those who profit from being able to duck the full costs of controlling their pollution.
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Written by Tom “Fitz” Fitzgerald. Cross-posted from the Kentucky Lantern.
Call the Legislative Comment Line at 1-800-372-7181
to leave a message for your elected representative about this bill.
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