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January 30, 2019

2019 Connecticut Environmental Legislative Update No. 6

by Christopher P. McCormack

Welcome to our Environmental Legislative Updates.

Throughout Connecticut’s legislative session, these updates highlight developments concerning environmental law and policy. The author prepares updates as Legislative Liaison of the Connecticut Bar Association’s Environmental Law Section. Pullman & Comley is pleased to offer them in this format to a wider audience.

As the session proceeds, early updates will alert readers to proposals on a broad range of issues concerning the environment, narrowing focus over time on bills that continue to progress, and concluding with a post-session wrap-up of bills that pass as well as noteworthy also-rans. Along the way they’ll summarize and challenge arguments pro and con, examine the policy and science behind proposals, and occasionally cast a side glance at the vicissitudes and vagaries of the process. The views expressed will be the author’s own, not necessarily those of Pullman & Comley LLC.

Questions, comments, requests and suggestions are always welcome. Please email me at cmccormack@pullcom.com.

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Say what you will about our elected representatives – they are not short on concepts for new laws. What accounts for this inexhaustible fecundity? Perhaps the fundamental principle of the legislative universe that we call the Tyranny of Good Ideas: confronted with any situation that is not totally perfect, a legislator cannot help but propose a legislative fix. And of course constituents and lobbyists can be relied upon to share ideas about how to form a more perfect Nutmeg State. Meliora.

All kidding aside (for a moment; we do that sometimes), there’s much to be said for HB 5999, concerning pesticide regulation. Pesticides run the gamut from over-the-counter retail products to genuinely nasty stuff that should only be handled with care and applied by appropriately trained people. But when the lawn guys leave those little yellow “pesticide application” signs behind, do we really know whether they did it right? All too often, according to a December 2017 report from the Council on Environmental Quality, we don’t – because regulatory oversight, monitoring and enforcement resources aren’t adequate. HB 5999 proposes to implement CEQ’s recommendations, including a dedicated fund paid for by pesticide registration fees, electronic permit and registration recordkeeping, enhanced public access to pesticide information, reinstatement of monitoring to assess pesticides in soil, water and wildlife, and restricting online purchases by uncertified persons. Maybe that would even keep pesticides out of stormwater runoff.

In the same vein, though in much more general terms, SB 595 proposes to amend licensing for landscapers to include training on use of natural products in lieu of chemicals. Yes, lush green suburban lawn, Long Island Sound is looking at you.

Speaking of which, the rearguard action against DEEP’s MS4 general permit continues with HB 5794. Municipal separate storm sewer systems are subject to the federal Clean Water Act, under which DEEP has delegated authority. There was quite a kerfuffle a couple years back when DEEP was working on a new general permit that would have expanded MS4 requirements to towns not previously subject to them. DEEP on one side reasoned that all Connecticut towns are within the watershed of Long Island Sound, an impaired water body; municipalities on the other side argued that to go beyond the federally-required minimum imposed an unfunded mandate they could ill afford. Like Tevye in “Fiddler on the Roof,” one could point to each and say, “You’re right … and you’re right.” Nonpoint source discharges are of course the last frontier in clean water regulation, and for many reasons the most intractable. Predictably, the final MS4 general permit did not satisfy the “federal minimum” side of the debate, so HB 5794 proposes to eliminate state requirements that go further. We’ll watch for a groundswell of enthusiasm. If none emerges this session, we’d be inclined to demote MS4 revanchism from “rearguard action” to “tilting at windmills.”

As sometimes happen, bills of interest attempt to sneak by with reference to committees other than Environment. We’re not about to fall for that. Even though we normally look to Commerce for brownfield bills, Appropriations will be the next stop for SB 188, which proposes to appropriate “the sum of ________ dollars” to DECD to fund the municipal remediation and redevelopment grant program under Conn. Gen. Stat. §32-763. The frisson of that blank check may fade when it comes time to decide what amount can actually be written in.

Speaking of waste – no, hang on, we’ll get to the plastic bag bills in a second – SB 234 proposes a pilot program for curbside collection of food waste to go to anaerobic digesters. This reflects a shift toward disaggregating the municipal solid waste stream. For example, much as we love the idea of “single stream recycling,” glass is a nightmare to deal with. Similarly, the “wet waste” (yuk) complicates handling the nonrecyclables. Plus separating the organics provides more feedstock for digesters, which then could end up being energy sources. We’ll get tired of all the winning.

Climate change, which does not exist in Florida, is the subject of bills in two categories.

HB 6021 tackles the issue of coastal impacts, calling on DEEP to study resiliency in the face of rising sea levels and report back in a year with recommended policy changes and issues on which local, state and federal authorities can collaborate.

A cluster of bills deals with teaching climate change in public schools. PA 18-181, Section 8, already authorizes instruction on climate change consistent with the “Next Generation Science Standards” (NGSS). HB 5011 calls generally to include climate change in the science curriculum beginning at the elementary level. But apparently the NGSS curriculum has its detractors – HB 5992 would prohibit use of NGSS entirely, as would SB 244, and HB 5995 would eliminate the “controversial area of information” concerning climate change. Healthy skepticism is of course essential to scientific inquiry; we await thoughtful scrutiny of how NGSS treats the theory of gravity.

Sort of in the climate change category is HB 6261, which proposes to declare water a public trust (which it, um, already is) but subject to protecting farmers and horticultural business during times of water restriction. But isn’t that sort of thing already covered by the state water plan? Or the drought preparedness plan adopted by the Water Planning Council late last year?

Benjamin Braddock, definitely look elsewhere: the tide of sentiment against plastic waste seems to be cresting. Plastic bags: House 6002 (ban); 6033 (tax incentives to eliminate); 6249 (ban); 6253 (ban); 6256 (prohibition); 6259 (use); 6260(ban); Senate 227 (prohibition); 236 (prohibition). Plastic straws: House 6258; 6259. Styrofoam trays: Senate 229 (ban in schools). At this point, we are inclined to suspend further effort attempt to note individual bills on this subject. We will continue to monitor them and report if we reach a point where every single member of the General Assembly has introduced or sponsored at least one, which at this rate definitely could happen.

And if plastic bags are here, can bottles be far behind? Nope: SB 589 joins multiple proposals to add nip bottles to the bottle bill, but adds sports drink bottles.

Electric vehicles: SB 409 would grant them access to HOV lanes. Oh, and speaking of driving, HB 5948 and HB 5949 join in favor of dealing with left lane bandits. We can call it a movement now.

Hemp production: SB 598 would authorize it.

Hydraulic fracking waste: SB 251 joins the parade to make the ban permanent.

Since this Legislative Update catches up several days, the Bonus Legislative Update is in three parts.

Part One is, for once, not comic. SB 639 calls for bonds to fund transient docks at the Canal Dock Boathouse in New Haven. We bet you will be as delighted as we were to learn about this public waterfront access project. Maybe Long Island Sound is worth protecting after all.

Part Two is a “what could possibly go wrong” proposition: SB 629 proposes to “ease traffic congestion” by permitting motorcycles to “operate between lanes of traffic.” That’s fine, but if we really want to ease congestion, what about letting motorcycles use embankments to jump over traffic? At least it’d provide entertainment for those of us stuck in the gridlock.

Part Three is in the category of Problems We Weren’t Aware Of But Now Sort Of Agree Something Ought To Be Done About. HB 5996 and SB 594 propose to ban certain kinds of contracts for the sale of dogs and cats. What … kind of contracts? we hear you asking warily. Well, apparently it’s possible to buy pets on time, with the pet as “security.” To paraphrase the question the Tom Arnold character in “True Lies” asks about the ice cube trays, what kind of person would go into the pet repo racket? But we have to admit – think of the reality TV potential. (“Nothing personal, kid. I got my orders. Fluffy has to come with me.” “MOMMMMYYYYY.”)

There is, believe it or not, much more than this on the Environment Committee’s list and on our tracking list, so look for an updated spreadsheet. And as usual, let us know if you think we’re missing something important.

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