On March 12, Indiana Governor Mike Braun signed Executive Order 25-38, for “Creating Opportunity Through Reduction of Excessive Environmental Regulation” (Order), prohibiting Indiana from adopting environmental rules, regulations, or programs more stringent than corresponding requirements under federal laws, such as the Clean Air Act, Clean Water Act, and Safe Drinking Water Act. Under this Order, the Indiana Department of Environmental Management (IDEM) must also ensure that any new rules or regulations do not impose unnecessary burdens on Indiana businesses and industries. Notably, the Order came the same day that EPA Administrator Lee Zeldin announced thirty-one significant actions to limit environmental regulations.

While the Order does not immediately repeal any existing Indiana law, it creates a plan for reevaluating Indiana’s current environmental laws. IDEM’s first task under the Order is to identify Indiana environmental regulations and policies that are unduly burdensome, are not supported by current law, or significantly raise Hoosier costs of living. By July 1, IDEM must report opportunities to revisit or rescind these identified laws to the Governor.

The Order provides one exception to its limit on the standards imposed by Indiana’s environmental laws: the standards can be more stringent than the corresponding federal standard if required by state law or found necessary by the Governor’s office. Given this exception, IDEM must review environmental rules and regulations that exceed an applicable federal standard by Oct. 31. By Dec. 31, IDEM must submit a report to the Governor and the Legislative Council discussing whether any higher environmental standard under Indiana law is necessary to protect human health and the environment.

Importantly, Indiana law already requires notification to state legislators and the public when a proposed environmental rule will be more stringent than a corresponding federal standard. See Ind. Code § 13-14-9-4. As a result, many Indiana environmental laws have already been scrutinized under the framework set forth in the Order.

Upcoming Changes to Indiana Environmental Law

In the wake of the Governor’s Order, Indiana may see changes in the following areas of Indiana environmental law:

1. Wetlands Regulations

Indiana’s State Regulated Wetland Law regulates wetlands that are no longer covered under federal jurisdiction due to Supreme Court rulings that narrowed the scope of Waters of the United States (WOTUS) under the Clean Water Act. See Ind. Code  ch.  13-18-22; Rapanos v. United States, 547 U.S. 715 (2005); Sackett v. EPA, 598 U.S. 651 (2023). Since Indiana requires state permits for activities that impact these wetlands, IDEM may be reevaluating these laws. See Ind. Code § 13-18-22-1(a); Ind. Code § 13-18-22-4; 327 Ind. Admin. Code 17-1, -4.

2. Hazardous Waste

While the federal Resource Conservation and Recovery Act (RCRA) sets the basic framework for hazardous waste management, certain Indiana hazardous waste regulations could be considered more stringent than their federal counterparts. For example, Indiana requires additional safety measures for hazardous waste containment and disposal for hazardous waste treatment, storage, and disposal facilities (TSDFs). Compare 40 C.F.R. 264, 265 with 329 Ind. Admin. Code 3.1-9-2. Indiana law also classifies additional wastes as hazardous that the federal government does not. 329 Ind. Admin. Code 3.1-6-3.

3. Air Regulations: Open Burning

While the Clean Air Act (CAA) regulates large-scale burning that contributes to air pollution, there are no federal rules directly prohibiting small-scale open burning. In contrast, Indiana prohibits most open burning statewide, subject to specific exemptions. See 327 Ind. Admin Code 10-1-2; 327 Ind. Admin Code 10-2-1.

4. Industrial Stormwater Permitting

Under the Clean Water Act, the National Pollutant Discharge Elimination System (NPDES) permit program regulates industrial stormwater, with most states implementing the program. Importantly, IDEM is transitioning its current stormwater permit by rule to a Master General Permit, the Industrial Stormwater General Permit (ISGP), which was scheduled to be issued this year. While the federal NPDES program requires periodic stormwater sampling and reporting, Indiana may require more frequent stormwater monitoring in the draft ISGP, so IDEM may revisit certain provisions of the draft ISGP as a result of the Order.

Other Movement on the Indiana Regulatory Landscape

In addition to the Order issued, other changes in Indiana environmental law are underway:

• Executive Order 25-37, issued the same day, prohibits IDEM from using environmental justice in its decision-making, such as when evaluating environmental risks or approving permits. Instead, all environmental permitting and enforcement decisions must be based on scientifically sound data.
• HB 1037, which prevents local governments from enacting more stringent stormwater management policies than those set by IDEM in its construction stormwater general permit (CSGP), is currently moving through the Indiana General Assembly.

Attorneys in Taft’s Environmental practice group are continuing to closely monitor developments in Indiana environmental law. For help navigating Indiana environmental regulations and permitting, contact Taft attorneys Frank Deveau, Will Gardner, and Tommy Sokolowski.