Like the rest of the nation, state legislatures faced elections in November 2008, shaking the makeup of legislatures across the country. Obama's coattails definitely helped the Democrats, with the party gaining five legislatures to control 27 states, compared to the 14 controlled by the Republican party. The remaining state legislatures are split, with one party controlling the House and the other controlling the Senate.
These wins give Democrats control of 60 of the 99 legislative chambers (each state has a House and Senate, with the exception of Nebraska's unicameral legislature). Republicans control another 37. The Alaska Senate and the Montana House are tied chambers, with an equal number of Democrats and Republicans.
Factoring in the governors, Democrats control both chambers of the legislature and the governor's seat in 17 states; Republicans have total control in eight states; and 25 states split control between the legislature and governorship (see Figure 1).
[FIGURE 1 OMITTED]
That being said, overall the Democrats did not pick up a huge number of seats as they did in 2006. The seats they did win gave state governments larger Democratic majorities; however, Republicans did extremely well in Arkansas, Oklahoma, and Tennessee. Oklahoma and Tennessee saw--for the first time--Republican control of both legislative chambers. Although both of these states have Democratic governors who were not up for re-election, it has been speculated that if they had been running, both states would have seen full Republican control.
Six states did not have legislative elections in 2008: Alabama, Louisiana, Maryland, Mississippi, New Jersey, and Virginia. In several states, only the House had races or only a limited number of Senate seats were up for election. If senators in Ohio or Michigan, for example, were up for elections this year, it was expected that their Senates would shift from Republican to Democratic control (see Figure 2).
[FIGURE 2 OMITTED]
The big prize for Democrats was winning the New York Senate, which has been under Republican control since 1966. This gave the Democrats complete control in that state. The same holds true in Delaware, where the Democrats took the House to gain control of that state. This gave Democrats control of every east coast legislative chamber north of Virginia, with the exception of the Pennsylvania Senate.
Democrats also took control of the Ohio House, Wisconsin Assembly, and Nevada Senate, and earned a tie in the previously Republican-controlled Alaska Senate, where a coalition of the Democrats and three Republicans joined to select Senator Gary Stevens as the Senate President.
In the South, the GOP made significant gains, with the big wins in Oklahoma and Tennessee. In Tennessee the Republican wins switched control of both the House and Senate. Republicans also won back the Montana Senate, which had gone to the Democrats in 2004.
Texas bucked the trend, to some extent. After seeing Republicans make significant gains, winning control of the governor's office, the Senate, and the House in 2002, Democrats came within one seat of tying the House chamber in 2008. One race was so close that it took almost a month to determine the winner. Had the Democratic candidate won, the House would be split, 75 to 75. Instead, Republicans have a one seat majority, 76 to 74.
Environmental Health Policy in State Legislatures
With all this being said, the impact on state environmental health programs may be minimal. The fiscal gap (the difference between the amount of revenue vs. expenditures) in the states is $84.3 billion. Since no state (except Vermont) is allowed to run a deficit, that means one of three things: massive taxes, massive program cuts, or both. Or the fourth hope, that the $800 billion stimulus package will bail them out.
Regardless of funding, state legislatures have often found ways found ways to promote important issues, and environmental health is one of them, especially chemical reform policy and healthy housing. Mostly due to congressional and federal inaction on the topic, states (and to a large extent, local governments) are revising, amending, or adopting new policies on environmental health, by placing tighter controls on emissions, limiting certain consumer products, or reviewing chemical policies.
Fees are in favor with state legislatures, and programs that are fee based, requiring no state funds, are highly desirable. Environmental health programs that require fees to license contractors or permit activities will be more welcome before state legislatures, and agencies struggling to maintain staff will look to raising fees to cover programs, if allowed by the governor and legislature.
One area that states may begin addressing is chemical control policy. The federal Toxic Substances Control Act (TSCA) has never been favorably viewed by industry or advocates. The Food and Drug Administration's (FDA's) inability to protect consumers from toxic chemicals in toys and children's products simply added to the public's (and therefore, policy makers') frustration with current policy. Congress reacted by enacting laws forcing the FDA to act and seeking hearings on revisions to TSCA.
And state legislators, like their federal counterparts, are seeking approaches to better address chemical policy. The laws adopted in California, Maine, and Washington (mentioned in the last column) are being debated in other states. These laws place the burden of testing for carcinogens, endocrine disrupters, and other health hazards in chemicals on state agencies or, more likely, on other out-of-state organizations such as the European Union, the World Health Organization, or (in the case of Maine) on the California Office of Environmental Health Hazard Assessment or the Washington Office of Ecology. (Although such policies would be considered an illegal delegation of authority by most courts, legislatures pursue these policies nonetheless.)
Policies that place licensing and permitting requirements on contractors, such as in the case of asbestos, lead hazards, radon, and mold (at least to date in one state), may be seen as a method to raise revenue while protecting housing from these health hazards. In 48 slates, to inspect and mitigate asbestos hazards requires licensure and a permit. For lead remediation, over 40 states have licensing and certification requirements. Twenty states require licensing for radon inspection. And in Texas, a license is needed to inspect for and remediate mold.
Each of these licenses and permits requires a fee, which either goes into the state general fund or directly to the state program. Fees (and in the case of some states, enforcement fines and penalties) that are collected and kept by the specific state agency provides a secure form of revenue for that program. The majority of agencies must submit all their fee revenue and enforcement penalties to the state general fund, which must reallocate the funding to that program.
Will the economy thwart environmental progress?
With the slight gains seen by government-friendly Democrats against the onslaught of the financial crises, no major new initiatives or governmental programs are anticipated. But new requirements for governmental agencies and fees for business are expected, forcing everyone to bear the burden of ensuring that the public's health is protected from environmental harms.
Editor's note: The NEHA Government Affairs program has a long and productive association with the National Conference of State Legislatures (NCSL). The organizations have worked together on any number of legislative and policy areas that directly impact the environmental health profession. One of the keys to the successes of the NEHA/NCSL collaboration has been the recognition of the fact that often some of the most significant legislative and policy initiatives related to environmental health occur in state legislatures. The states have in a very real sense, been the innovators in developing new programs and practices. They serve as laboratories to test new programmatic approaches to some of our most pressing environmental health problems, and those successful state programs have often been the framework for subsequent national policy.
In recognition of this fact, we have asked Doug Farquhar from NCSL to provide an overview of state environmental public health legislative activity. The column highlights some of legislative work being done in topic areas that are of the most pressing public concern. It provides summary information in the areas of children's environmental health, indoor air quality, exposure hazards related to: lead, mercury, asbestos, and pesticides. Additionally, some of the newer legislative activities concerning radon, and bio monitoring are presented.
Doug Farquhar, program director for NCSL's Environmental Health Program, has worked with NCSL since 1990. Mr. Farquhar directs program development, management and research for the Environmental Health Program. These projects encompass consultation and policy analysis of state and federal policies and statutes, regulations, and programs regarding environmental health and related topics for state legislatures and administrative programs.
Doug Farquhar, J.D.…