Companies have been working for years on new ways to recycle plastics, and they think they have a breakthrough concept: chemical, or “advanced,” recycling. If the technology is perfected, it has the potential to increase plastics recycling and decrease solid waste. 

Naturally, environmental activist groups hate it. 

In the Legislature this year, a popular, bipartisan bill to speed the development of advanced recycling in New Hampshire drew little opposition — except from some green activists.

Why? They prefer to abolish the production of single-use plastics. It’s a classic case of the perfect being the enemy of the good.

A General Accounting Office report last fall concluded that advanced recycling created tremendous new opportunities for:

  • Resource conservation. Chemical recycling can produce raw materials of virgin quality, thereby decreasing demand for fossil fuels and other natural resources.

  • Reduced landfill use. A significant amount of plastic waste ends up in landfills. New technologies could reduce the need for landfills, which may reduce the release of harmful chemicals into the environment.

  • New markets. Developing advanced recycling technologies could promote domestic business and employment. Chemical recycling creates a market for plastic waste and a new way to reuse some plastics.”

A New York recycling investment fund last year concluded that the technology had real promise for investors and as a recycling technology. 

A McKinsey study out this week concluded that advanced recycling “could satisfy 4 to 8 percent of total polymer demand by 2030….”

Obviously, there are no guarantees. Some advanced recycling plants have struggled to make a profit and have closed within a few years of opening. It might never achieve its stated goals, as is true of any expensive new technology.

Among its obstacles are state regulations, which tend to classify such facilities as solid waste disposal operations.

Senate Bill 367 classifies advanced recycling facilities as manufacturing, subjecting them to laws and regulations that apply to manufacturers rather than to solid waste disposal centers. 

The Department of Environmental Services supported the bill and testified in favor of it. 

At the request of the department, the bill authorizes state inspectors to “enter and inspect any advanced recycling facility to ensure compliance with all applicable statutes and departmental rules relative to air, water, waste, and land use and take any enforcement actions necessary.” 

The bill received a unanimous 4-0 “ought to pass” recommendation from the Senate Environment and Agriculture Committee and passed the Senate unanimously on a voice vote.

Sen. David Waters, a passionate environmentalist from Dover, co-sponsored the bill along with Sen. Kevin Avard, R-Nashua. Senate Minority Leader Donna Soucy, D-Manchester, also was a co-sponsor. 

In the House, however, opposition appeared. The House Environment and Agriculture Committee split on the bill, voting 4-3 in favor. The House passed it by 70-vote margin, but still 128 members voted against it. 

Some environmentalists worry that the new recycling process could cause unforeseen environmental problems. They don’t want it allowed until exhaustive testing and research can be done to guarantee safety. 

But that would delay the development of a promising new recycling technology indefinitely, and possibly smother it in the cradle. 

And that is exactly the point, for some activists. The Conservation Law Foundation opposed the bill, saying in a statement that it “disguises burning plastic as recycling and will spread toxic pollution into New Hampshire’s communities while keeping single-use plastic in production.”

The group’s stated goal is to end the production of single-use plastic. Making more of it recyclable is seen as an obstacle to achieving the end goal. 

As with natural gas power generation, some activists are hoping to block an incremental improvement to speed the arrival of a hypothetically perfect outcome. 

A GAO analysis of U.S. Environmental Protection Agency data from 2018 found that 75% of plastics wind up in landfills. Advanced recycling might have the potential to decrease that percentage substantially. But it can’t do that if environmentalists block it with a web of regulations.

Advanced recycling might not live up to its promise. But it definitely won’t if it’s never allowed to start. 

New Hampshire could become one of the earliest states to enable low-cost legal assistance by loosening occupational licensing regulations on the practice of law. If House Bill 1343 passes, paralegals would be able to provide limited legal representation to lower-income individuals in district, circuit and family court. 

Paralegals have some legal training but are not attorneys and do not have law degrees. They are prohibited from practicing law or representing clients in court. 

Restricting the practice of law to attorneys only, no matter how simple the legal matter, creates a shortage of legal representation and increases the cost of that representation.

As a result, 80%-90% of people who appear in family court in New Hampshire have no legal representation, bill sponsor Rep. Ned Gordon, R-Bristol, testified before the Senate Judiciary Committee last month. 

Only 13% of alleged domestic violence victims have legal representation in court, according to the Domestic Violence Task Force.

HB 1334 bill would let paralegals who are directly supervised by licensed attorneys represent lower-income clients in family, domestic, stalking and landlord-tenant cases. Paralegals could serve clients whose family income is no more than 300% of the federal poverty level.  

Testifying in favor of the bill, Chief Justice Gordon MacDonald said that allowing paralegals to represent clients in these types of cases would be “one of the most meaningful steps” the state could take to increase access to justice in the court system.

Other states have begun making similar changes for the same reasons. 

  • Arizona allows “Legal Paraprofessionals” to represent clients in family law and some limited civil, criminal and administrative law matters.
  • The State Bar of California is moving forward with a plan to allow “Legal Paraprofessionals” to represent clients in family, housing and some other limited legal matters. 

The push to remove needless barriers to the practice of law is not restricted to the United States. In the United Kingdom, barristers are attorneys who represent people in court, and solicitors generally do legal work for people outside of court. In 2020, the Legal Services Board approved a proposal to reduce the entry-level requirements for solicitors and broaden the number of people who can take the solicitor’s qualifying exam. 

In many countries, law degrees are offered at the bachelor’s level. The United States is an outlier in making graduate school the standard path to a law degree. 

HB 1343 would take a small step toward allowing people to purchase qualified legal representation at a lower cost than is available now. That it is supported by N.H. Legal Assistance and the N.H. Coalition Against Domestic and Sexual Violence shows a general consensus that such representation is needed. No law firm testified against the bill. 

If this small step passes, two obvious next steps could follow:

  1. Removal of the income restriction so that qualified paralegals can represent anyone. 
  2. The creation of a University of New Hampshire bachelor’s or master’s degree in legal studies that would lead to passage of the state bar exam. 

“While the talk is about free markets and private property—and it is more respectable than it was a few decades ago to defend near-complete laissez-faire—the bulk of the intellectual community almost automatically favors any expansion of government power so long as it is advertised as a way to protect individuals from big bad corporations, relieve poverty, protect the environment, or promote ‘equality.’”

— Milton Friedman, introduction to “The Road to Serfdom” 50th anniversary edition, 1994

 

The right-of-center movement in the United States is shifting toward statism in a way even many of its self-proclaimed liberty activists don’t realize. 

Responding to relentless left-wing provocation, people on the right think they’re defending liberty by using the state to block or punish private-sector actions they dislike. Instead, they’re expanding state control over private behavior. 

The “Live free or die” state is not immune to this shift. Here, lawmakers who believe themselves to be righteous champions of liberty are trying to extend state control over private contracts and decisions. 

To pick one example, consider House Bill 1210, relative to exemptions from vaccine mandates. The bill requires any employer that receives any public funds, including grants or contracts, to allow a “right of conscience” exemption from vaccination.

Framed as a defense of individual liberty, the bill actually would reduce liberty. 

If enacted, it would weaken the right of free individuals to associate only with others who accept their dedication to fighting infectious diseases through vaccination. 

Vaccination status is not an immutable characteristic like race or sex. It is a choice, and not a purely individualistic one. It can have profound, even life or death, consequences for others. 

Were the bill to pass, health care facilities such as nursing homes and hospitals would be required by law to hire employees who refuse to vaccinate themselves against any and all infectious diseases. The bill covers all vaccines, not just those for COVID-19.

The bill restricts freedom of association in the name of “bodily integrity.” But someone who refuses to vaccinate is making a choice to give up bodily integrity. 

A virus is a foreign living organism that invades a body and uses it as a host. Viruses cannot replicate by themselves. They infect host cells and use them for reproduction, usually killing them in the process. Vaccines are designed to protect cells against invasion and destruction by alien organisms. Their purpose is to preserve bodily integrity. 

Viruses aren’t libertarian. They’ll infect anyone they can. People have a right to choose to associate with others who agree to vaccinate. This bill would violate that right in pursuit of a non-existent right to join a group without agreeing to its terms.

Conservatives can easily see that it would be a violation of individual rights for the state to require religious employers or ideological organizations to hire anyone regardless of their beliefs. This bill violates the freedom of association in a similar way. 

Should HB 1210 become law, a cancer patient would be unable to seek medical care in New Hampshire in a facility with a fully vaccinated staff. That’s not protecting people’s rights. It’s forcing people to associate with others who might be a danger to themselves.

The libertarian saying that your rights end where my nose begins applies here. Going unvaccinated (or not) is not a lifestyle choice like getting tattooed or piercing one’s nose. It can have a direct, potentially catastrophic effect on others. And others have a right to protect themselves against that through their associations.

Like House Bill 1469, which seeks to restrict the free association rights of all New Hampshire businesses under the guise of regulating banks, HB 1210 would expand the power of the state to regulate economic transactions in new ways. 

Supporters of such market interventions honestly think they are taking steps to protect individuals. But they’re mistaken. Unwittingly, they are moving to empower collectivism and weaken the liberty of the individual. 

Using pressure tactics or government regulations, progressives have sought to banish from the market business activity they dislike. Some Republicans have responded in kind.

In New Hampshire, House Bill 1469 showcases a Republican effort to cement culture war preferences in law. It offers a case study in regulatory overreach.

The bill creates a list of “prohibited acts for banks, credit unions, and businesses.” The list is long, vague and broad. And despite the title, the bill regulates every New Hampshire business, not just the financial industry.

HB 1469 labels as “discrimination” many non-financial reasons for not doing business with someone. 

Among the prohibitions: No financial institution may “discriminate against, impose as a precondition, advocate for or cause adverse treatment of, any person, business, or organization in their business practices” based on “ideological, philosophical, or political views and opinions” or other enumerated non-financial criteria.

The non-financial criteria include “social media posts; Internet browsing history, dietary habits, medical status, participation or membership in any clubs, associations, or unions, etc.; political affiliation; or place of employment or source of legal income.”

The bill would write similar language into the state’s Consumer Protection Act. The Attorney General’s Office testified that this  would “regulate all businesses” in the state, something sponsors did not appear to intend.

Thus every decision not to transact business would be open to potential civil rights litigation on the grounds that it might have been tainted by a non-financial consideration. 

In going after “woke” global corporations, HB 1469 would treat small New Hampshire businesses the way the Colorado Civil Rights Commission treated a Christian cake baker — as pawns in a broader culture war. 

Such a sweeping regulation of private business activity could be seen as justified if Granite Staters had access to only one bank. But they can choose from hundreds of financial institutions. 

New Hampshire has 16 state-chartered banks, eight state-chartered credit unions and 34 state-chartered trust companies. That’s in addition to 783 federally chartered banks, including many that are online-only and process applications in minutes. 

If one or 10 or 50 banks decide not to do business with center-right customers in a center-right country, competitors would immediately take up that business. Fear that conservatives will lose all banking privileges is overblown.

There is no shortage of financial institutions willing to take Americans’ money. And there is no shortage of entrepreneurs who would be happy to get rich by lending money to gun owners, meat eaters and other practitioners of great American pastimes. 

But there is a shortage of states where legislators resist the temptation to let people resolve their differences peacefully in a free and open marketplace. New Hampshire is one of the few places where leaving people alone is a cultural value. Kill that here, and the consequences will be a lot worse than some bank deciding to lose money by shrinking its customer base. 

Some Republicans think they need a law to protect them from businesses run by Democrats. But the market already does that via competition. Expanding business regulations so broadly will only give left-wing activists another tool with which to control businesses once their allies return to power, which is inevitable.

When that happens, conservatives will want to be able to argue against such proposals on free-market grounds. Regulating the political motives of every business transaction will do more than topple Republicans from that moral high ground. It will amount to abandoning the hill and destroying it. 

The state banking commissioner testified that the department has received no complaints of political discrimination in banking. Given that, a less burdensome alternative is obvious, if lawmakers feel that they have to “do something.” Task the department with collecting consumer complaints about discriminatory practices and reporting those complaints annually to the Legislature. 

If financial institutions begin to systematically turn away right-of-center customers and business partners, this will show up in the data. If those customers are unable to find other institutions willing to take their business, then lawmakers could consider an appropriate legislative remedy. 

In the meantime, legislators might want to consider the wisdom of a recently departed Granite Stater who cautioned that “there are just two rules of governance in a free society. Mind your own business. Keep your hands to yourself.”

Granite Staters could gain a little more freedom this year to make extra money from home.

The COVID-19 pandemic has reshaped the American workforce, probably permanently. A Pew poll in February found that 59% of people who say their jobs can be done mostly from home are working from home all or most of the time, with another 18% working from home some of the time. 

What’s more, 61% of them say they are working from home by choice. 

A study published by Stanford University in March concluded that “about half of the US workforce currently works remotely at least one day each week.”

Millions of Americans are choosing to convert their living rooms, dens, bedrooms, play rooms, basements, etc. into home offices. 

But for those who don’t type on laptop computers all day, working from home is trickier. Regulations often prevent homes from being monetized in more traditional ways. 

Two bills in the Legislature would relax some restrictions that make it harder for people to generate extra income from their homes. 

RSA 143-A:12 allows Granite Staters to operate a “homestead food operation” from their kitchens. (It excludes foods the require refrigeration.)

To prevent these kitchen businesses from scaling up to full commercial operations, allowable sales are capped at $20,000. 

House Bill 314 would increase that cap to $35,000, letting people make a living, or at least a really strong side-income, from homestead food preparation. The bill would increase a homestead food operator’s maximum allowed weekly sales from $384.60 to $673.

For those who wish to monetize the rest of their home, Senate Bill 249 would prohibit municipalities from banning short-term rentals. 

According to a new analysis by the state Office of Planning & Development, 27 New Hampshire jurisdictions regulate short-term rentals in some way. These range from Franconia’s registration requirement to Bedford’s ban. 

SB 249 would allow short-term rentals statewide while authorizing municipalities to “generally regulate parking, noise, safety, health, sanitation” and apply “other related municipal ordinances” to short-term rentals. 

Municipalities could require registration, and they could revoke that registration if a property is associated with more than one ordinance violation. 

There is some concern that short-term rentals could raise rents and home prices. Studies have found that these rentals are associated with a short-term bump in prices.

But over the long run, short-term rentals have been found to stimulate housing construction.

A study released last fall looked at the effect of Airbnb rentals on housing construction over a decade. It found that a 1% increase in Airbnb listings led to a 0.769% increase in permit applications. 

The authors found that short-term rentals stimulate the construction of new housing units, leading to increased property tax revenue, and that “restricting STRs can have a significant, negative impact on local economic activity.”

It’s not surprising that people will try to build more housing if they can use it to generate extra income. 

These practical considerations aside, regulations on the use of property (particularly for generating income) have grown so strict that they’ve caused a significant erosion of private property rights. 

Historian Edmund S. Morgan wrote that “widespread ownership of property is perhaps the most important single fact about Americans of the Revolutionary period. . . . Standing on his own land with spade in hand and flintlock not far off, the American could look at his richest neighbor and laugh.”

Today, a Granite Stater standing on his own land looks at his neighbor and worries, as the neighbor can call the town planning department and report him for a dozen potential ordinance violations.

Instead of balancing competing private property interests, state and local regulations have long trended against property owners. Regaining that balance will take decades. It can start with small changes that grant a little more discretion to property owners while maintaining rules that allow neighbors to assert their own property rights. 

Until last week, it was legal to for small New Hampshire farms to sell raw (unpasteurized) milk, cream, cheese, butter, yogurt and kefir directly to consumers. But anyone stopping at a local farm and hoping for raw milk ice cream was out of luck. That product was illegal. 

Legislators discovered this omission in 2019 when Little Red Hen Farm in Pittsfield was cited for selling ice cream made from raw goat’s milk. Farmer Jill Fudala said she thought she could sell the ice cream since the state let her sell all the other raw milk products. 

But it turns out that legislators had left ice cream off the list of approved raw milk products. 

Rep. James Allard, co-sponsor of House Bill 95, to allow the sale of raw milk ice cream, said at a hearing last March that no one knew why ice cream was excluded. 

The bill, signed into law by Gov. Chris Sununu last week, limits raw milk ice cream servings to six ounces. (Farms where raw milk sales are allowed without a license are limited to producing no more than 20 gallons of raw milk a day.)

The size restrictions are to limit outbreaks. Unpasteurized dairy products are more likely to contain harmful bacteria. State officials reason that prohibiting large-scale production of raw milk products reduces the risk to the public while allowing small farms to deal in small quantities.

It’s a balancing act. After pasteurization became widely available, bans on unpasteurized dairy products followed. But modern farms are cleaner than their predecessors of a century ago. As  raw milk has become a trendy consumer product, many states have responded by carving out exceptions to the bans. 

In New Hampshire’s case, the exception made an exception of ice cream. 

This seemingly insignificant story offers three real-life lessons for thinking about public policy.

1. The details matter. Minor mistakes or oversights in writing rules and regulations can have real consequences. Because legislators left one dairy product out of a list, a small farm was cited by the state for doing something that aligned with the spirit, but not the letter, of the law.

2. Attempting to eliminate risk creates other risks. Banning raw milk sharply cuts the risk of bacterial infection. The tradeoff is that it puts small farms at increased risk of failure. Lawmakers opted to strike a balance by allowing limited raw milk sales at small farms and requiring labeling so consumers would know what they were buying. A co-sponsor of HB 95, Rep. William Marsh, is a medical doctor. He testified last March that allowing small-scale raw milk sales would carry some limited risk of illness, but the overall risk would be reduced because the state could then focus its inspection efforts on larger farms that carried much larger public health risks.

3. Every industry regulation attracts rent-seeking. HB 95 was a tiny change to allow tiny farms to sell tiny ice creams. And yet large dairy lobbyists tried to crush it. In April of last year, the National Milk Producers Federation (which sounds like a cartel from Star Wars) and the International Dairy Foods Association sent a letter requesting that legislators kill the bill. 

In a gesture of solidarity with Ukraine, Gov. Chris Sununu has ordered all Russian booze removed from the shelves of New Hampshire’s state liquor stores. No more of Vlad’s vodka for you. 

When it comes to state-run liquor stores, the government has total control over not only the products, but the layout, location, design, staffing and all other details. What might surprise Granite Staters is just how much the government controls such matters among food and beverage options in the private market as well. 

The commercial and cultural landscape in which we operate everyday is shaped in powerful ways by government regulations. A quick look at two popular trends of recent years helps show how.

Not long ago, New Hampshire had no small craft breweries. It wasn’t because New Englanders were hostile to locally made beer. Vermont had a nationally renowned craft brew culture for decades. New Hampshire lagged behind because outdated state laws did not allow small breweries here. 

After laws were changed several times to allow smaller and smaller brewing operations, craft breweries exploded across the state. But breweries are still constrained by absurd regulations. 

For instance, breweries classified as “beverage manufacturers” rather than “brew pubs” may not operate their own restaurants. They may only contract with third-party vendors for food, including food prepared and served on-site. 

Beverage manufacturers may sell beer samples on-site. But brewery owners say state regulators require them to use separate points of sale for those samples. Because beer served for drinking on-site is a “prepared food,” it is subject to the rooms and meals tax. Beer served in cans and bottles for consumption off-site is not. So regulators have required breweries to sell these items at two different cash registers, brewers say. 

House Bill 1556, introduced by Rep. Ross Berry, R-Manchester, would end this absurdity by letting breweries sell samples at the same register where customers buy bottles and cans. 

And beverage manufacturers may operate one — and only one — off-site retail outlet. That outlet must be able to produce beer. House Bill 1039, introduced by Rep. John Hunt, R-Ringe, would remove the production requirement so the retail outlet could be a simple store. 

Food trucks are popular partners for local breweries. They attract customers without the brewery having to open its own restaurant. (And beverage manufacturers use them to comply with the law requiring third-party food vending.) But regulations make it hard for food trucks to operate in New Hampshire.

As gourmet food trucks have emerged in cities across America, the trend has faltered in New Hampshire because of the way food trucks are regulated here.

The whole point of food trucks is that they’re mobile and can go where the customers are. But food truck owners who want to roll between, say, Portsmouth, Concord, Manchester and Nashua have to pay to be licensed in each municipality. 

That means paying multiple municipalities to conduct similar health and safety inspections. Then, once in town, another set of location restrictions dictates where, when, and how food trucks are allowed to operate. 

House Bill 1595, introduced by Rep. Matt Wilhelm, D-Manchester, would improve this system by creating a single state-wide food truck license issued by the Department of Health and Human Services. 

Municipalities would still get to use zoning and other ordinances to dictate where, when, and how food trucks can operate. But health and safety inspections and licensure would move to the state level.

In response to increased food truck demand, other states have begun passing similar laws. Rhode Island, Washington and Arizona have state-level food truck licensure.

HB 1595 would add New Hampshire to the short but growing list of states that have food truck freedom. But the bill received an “Inexpedient to Legislate” (kill) recommendation from the House Commerce Committee. 

Among committee members’ stated reasons for opposing the bill is that it would take revenue from municipalities and add a small cost (for a single staffer) at the state Department of Health and Human Services. 

New Hampshire has 175 licensed food trucks, according to the Department of Health and Human Services. A state food truck license would reduce financial and paperwork burdens, resulting in more food trucks. That would help our rapidly aging state attract more young people, and help our businesses attract more employees during this severe labor shortage.

But that probably won’t happen this year because some legislators think maintaining local food truck licensing revenue is more important than stimulating entrepreneurship and improving the quality of life of Granite Staters. 

Given the choice between losing a few thousand dollars in local licensing revenue (not remotely enough to trigger tax increases), or gaining more taco trucks, we’re pretty sure the vast majority of Granite Staters would go with the taco trucks.

This summer, when you wish there were more food trucks in New Hampshire, or that you could have fresh chili on the hot dog you just bought from that push cart vendor (sorry, it has to be pre-made chili in a single-serving package), you’ll know that it’s not because people don’t want to provide you that service. It’s because regulations make it harder than necessary for them to do it. 

 

“It is far easier to concentrate power than to concentrate knowledge. That’s why so much social engineering backfires….” 

— Thomas Sowell

In New Hampshire, Republicans tend to think of themselves as opposed to government regulations, especially ones that can be called “social engineering.” And yet Democrats don’t have a monopoly on such efforts. 

A recent example is House Bill 1469, which originally would have prohibited banks from using so-called “social credit scores.” An amendment improved the bill by tightening its prohibitions, but it remains a solution in search of a problem. 

The idea is that the state must protect individuals and groups from financial institutions that attempt to “discriminate” based on “ideological, philosophical, or political views and opinions.”

Yet in seeking to protect some rights, the bill violates others. 

It states that financial institutions may not “advocate for or cause adverse treatment of, any person, business, or organization in their business practices” for various political, ideological or philosophical reasons “unless such action is necessary for the physical safety of its employees.”

This wording would go well beyond prohibiting banks from turning away customers whose politics bank officials might dislike. It would constrain the ability of financial institutions to advocate or support particular charitable causes, make public statements on a range of issues, and even manage their own brand and contractors.

Such efforts to micromanage corporate business practices usually come from the political left. They create no fewer problems when they emerge from the right.

Republicans might see this overreach more clearly if it comes in a familiar form. House Bill 1538, for example, would mandate that laborers on public works projects be paid the prevailing wage. 

The assumption that legislators know enough to pick the correct wage for construction projects differs little from the assumption that legislators know enough to micromanage the business practices of financial institutions. 

A longstanding bipartisan example of legislators using power to replace others’ judgment is the state’s driver’s education mandate. This is not a classic market intervention, as setting the requirements for using public roads is appropriate government rule-making. But this law nonetheless involves legislators mistaking power for knowledge and wisdom. It doubles as a protection for a particular industry to boot.   

New Hampshire requires that minors take an approved driver’s education course before getting a driver’s license. The mandate is based on three presumptions: 1) there is tremendous value in driver’s education courses; 2) the public is too unwise to recognize this value; 3) legislators have enough expert knowledge to justify imposing this requirement on the public. 

None of these presumptions is true. 

Going back decades, so many studies on this topic found that driver’s education offers no significant safety gains for young drivers that this was long the conventional wisdom. The research is mixed, however, and some studies have found benefits. The trouble is that evaluating programs is difficult, and limitations on the quality of research have made it hard to determine a definitive answer. 

And yet the state forbids minors from getting a driver’s license without first taking an expensive course of questionable value. 

Ultimately, if a student can pass the state’s driver’s test, it shouldn’t matter who taught the student to drive. The test itself should be the ticket to a driver’s license. Yet the only legal pathway for a minor to get a license is through a professional driver’s education program.

House Bill 1208 would fix this disconnect between the research and the law by giving parents who possess a driver’s license the option of teaching their own children to drive.

It wouldn’t end private driver’s education instruction. It would just give families the option of providing it themselves rather than hiring someone else to do it. Teens would still have to pass the state driver’s exam. That seems reasonable given the cost of these programs and the lack of conclusive evidence that they make roads significantly safer. 

Not all regulations are harmful, of course, and sometimes legislators do make well-informed decisions. But as these examples illustrate, the impulse to impose a preferred outcome seldom comes with enough knowledge to conclude that the imposition is wise. 

One of the hottest beauty trends of the last few years is the blow-dry bar. These semi-salons offer rapid hair styling services for a night out or a special event. But their expansion in New Hampshire is restricted because of the state’s outdated occupational licensing laws. 

To open a shop that offers hair washing and drying, and maybe some makeup application as well, one must have a full cosmetology license.

The training requirements for those licenses are expensive, time consuming and entirely unnecessary for niche beauty services such as hair washing or makeup application. 

New Hampshire’s cosmetology license requires — by law — a minimum of 1,500 hours of training in a state-approved cosmetology school or 3,000 hours of training for at least 18 months under a licensed cosmetologist. And cosmetology school costs about $20,000.  

Those requirements are excessive. (Massachusetts requires 1,000 hours of training) They’re ludicrous for someone who just wants to apply makeup or wash hair for a living. Yet that’s the law. 

Rep. Diane Pauer, R-Brookline, wants to fix that. She’s introduced House Bill 1171, which would exempt niche beauty services from state licensing requirements. 

The bill would make it legal to offer “blow-dry styling” (which includes “shampooing, conditioning, drying, arranging, curling, straightening, or styling hair”), eyelash extension application, makeup application, and eyebrow threading without having to get an expensive state license.

These are safe, common practices that people do for themselves, their families and their friends every day. None involves chemical agents or specialty tools that require advanced training. 

The bill also would exempt makeup application and similar cosmetic beauty services from licensure when offered for demonstration (at a department store makeup counter, for example) or for theatrical, photographic, television and media appearances.

New Hampshire is one of only 10 states without such licensing exemptions. Every bordering state offers at least some of these exemptions. 

Vermont exempts makeup application for “theatrical and performing arts industries.”

Maine exempts makeup application for theater, movies, television, modeling and retail demonstration. 

Massachusetts exempts from cosmetology licensure anyone doing demonstrations of cosmetology products. It requires a separate demonstrator registration. 

Here’s an example of the absurdity of New Hampshire’s current cosmetology license requirements:

Bernie Sanders would not need a licensed cosmetologist to apply his makeup were he to perform in a Burlington, Vt., theater production of “Battleship Potemkin.” But he did need one to apply his makeup when doing a TV hit from the campaign trail in New Hampshire. 

It would be silly to claim that Bernie’s health and safety were put at risk by unlicensed Vermont makeup artists. But the health and safety claim is what has kept New Hampshire from carving out sensible exemptions for simple services such as applying powder for TV hits and makeup for actors, or hair washing services at a blow-dry bar.

Licensing regulations vary by state, sometimes by a lot, sometimes a little. New Hampshire law allows barbers and cosmetologists licensed in other states to practice here, provided that the other state’s license requirements are “substantially equivalent to or higher than” New Hampshire’s.

Pauer has a bill to change that too. HB 1560 would strip this subjective equivalency language and let practitioners licensed in other states practice here.  

New Hampshire requires 800 hours of training in an approved school, or 1,600 hours of training under a licensed barber, to obtain a barber’s license. That’s much less onerous than what is required in many other states, especially our neighbors. 

Maine, Vermont, and Massachusetts require 1,000 hours of training. Connecticut and Rhode Island require 1,500 hours. But some other states have hours requirements that might just miss being deemed “substantially equivalent” to New Hampshire’s. 

Oregon, for example, requires 746 hours of training, with 465 of those being in practical operations.

The subjective language in New Hampshire’s statute is unnecessary. Stripping it would leave the requirement that the applicant be “similarly licensed in another state,” which is sufficient. 

The changes proposed by both of these bills would remove license requirements that aren’t necessary and that can serve as a barrier to entrepreneurship (in the case of HB 1171) and the in-migration of licensed professionals (in the case of HB 1560). 

With New Hampshire’s severe labor shortage, reducing needless barriers to entering the state’s labor market is an easy call, and one that comes with a greater sense of urgency than it has in a long time. 

On Feb. 1, amid a critical shortage of health care personnel in New Hampshire, the licenses of 22,328 medical workers were set to expire. That’s 26% of health care workers licensed to practice in the state. 

In January, the state’s Office of Professional Licensure and Certification (OPLC) prevented that disaster by issuing an emergency rule to extend the licenses — for four more months. 

When that rule expires on May 31, all of those licenses will expire with it. 

Unless the Legislature acts before then, Granite Staters will lose access to tens of thousands of medical professionals, including 951 mental health counselors, 1,064 social workers, 1,114 psychologists, 2,104 Advanced Practice Registered Nurses, and 14,920 physicians. 

Many of those, such as psychologists, are offering services remotely. Others, including a lot of physicians, were licensed under bulk applications and might have few New Hampshire patients. Others, such as nurses, fill staff positions in New Hampshire.

All of them were granted temporary emergency licenses during the pandemic. Those licenses were extended through January, then again through May. Legislators so far have refused to pass a law to make these licenses permanent, or to grant permanent recognition of out-of-state health care licenses. 

A health care system in crisis mode

Nearly two years after the first COVID case was documented in New Hampshire, health care in the state is being triaged through a rolling series of emergency professional license extensions. 

“We get calls all day saying, ‘We need you to approve this license right away,’” Lindsey Courtney, executive director of the OPLC said. 

“It’s mostly hospitals or residential or long-term-care facilities. And often it’s because they’re bringing in travelers. They’ll call a staffing agency and they’ll be told, ‘I can get you five people, but they have to be licensed tomorrow.’”

Because obtaining a permanent state license can take months, quickly licensing those new hires is done under a stop-gap fix the Legislature passed last year. It lets the OPLC offer temporary, 120-day licenses to health care workers.

“I would say that’s how the bulk of the traveling nurses get licensed,” Courtney said. “They don’t even seek a permanent license because they’re going to be here less than four months. If they had to seek a regular license, I’m not sure where we’d be.”

In seven health care fields, more than a third of licensed practitioners hold emergency licenses, a review of state licensing data shows. In two fields, the percentage is close to two thirds.

Percentage of licensed health care practitioners who hold an emergency license: 

Licensed Alcohol and Drug Counselors    36%

Advanced Practice Registered Nurse        39%

Licensed Independent Clinical Social Workers     44%

Licensed Clinical Mental Health Counselor           45%

Marriage and Family Therapists         47%

Psychologists        63%

Physicians             65%

Courtney has pressed legislators to provide a permanent fix by simply letting her office recognize out-of-state health care licenses. 

It’s hardly a new idea. The Journal of the American Medical Association published a brief arguing for medical license reciprocity in 1899. But every time it is proposed in New Hampshire, licensing boards object. 

Dominance of state licensing boards

Professional licensing in New Hampshire is conducted by 54 different state licensing boards. Thirty-five of those regulate health care occupations. 

In theory, giving current practitioners the ability to license new entrants into their field raises quality. In reality, it reduces the number of practitioners and gives established license holders the power to restrict competition.

For health care occupations, that is bad for patients, said Morris Kleiner, the AFL-CIO chair in labor policy at the Humphrey School of Public Affairs at the University of Minnesota, and an expert on occupational licensing.

If New Hampshire doesn’t make these licenses permanent, it could harm Granite Staters by suddenly and sharply reducing access to care, he said.

“Not having the licenses, or revoking them, reduces the supply of labor and reduces access of patients to these important, healing occupations,” he said.

Senate Bill 277, sponsored by Sen. Erin Hennessey, R-Littleton, would offer another temporary fix by extending the 22,328 emergency health care licenses, set to expire May 31, for another two years. That would stretch these “emergency” licenses out for four years in total. 

At a Jan. 11 Senate hearing on the bill, the OPLC offered an amendment to have the licenses made permanent. The Board of Psychologists opposed the amendment, saying it would amount to “rubber-stamping the approval of an out-of-state license” and therefore diminish the quality of care offered to patients in New Hampshire. 

Currently, 1,114 psychologists hold a temporary emergency license to practice in New Hampshire. They far outnumber the 645 psychologists who hold a permanent license. If these emergency licenses were to be made permanent, it would increase the number of permanently licensed psychologists by 73%. 

During the state of emergency, New Hampshire granted licenses in bulk to Massachusetts health care providers who accepted Medicare and Medicaid. This ensured that New Hampshire patients could see their caregivers remotely. In some cases, a large health care facility made a bulk application on behalf of its employees who might have New Hampshire patients. Bulk submissions can cover a lot of providers who don’t regularly see New Hampshire patients, or who don’t intend to move to the state. (Many of the emergency-licensed physicians fall into this category.)

About 35% of the emergency licenses for psychologists were part of a bulk submission. The rest of the applications came from individuals. That represents “a significant increase in the number of people who were actually practicing,” Courtney said. “Those were probably people conducting a lot of telehealth services with patients, probably a lot of cross-border care.”

“Mental health is continuing to operate in a largely telehealth platform,” she added.

Another bill, Senate Bill 330, sponsored by Sen. Bob Giuda, R-Warren, would authorize the OPLC to license practitioners who work in other states in which the requirements for licensure are substantially similar to those in New Hampshire. 

Both bills have bipartisan support in the Senate. But hostility to SB 330 from some licensing boards and licensed professionals suggests that a permanent fix to the problem is unlikely this year. 

It’s an uphill battle, given the political strength of licensing boards, Professor Kleiner said.

“The only state that has extended the temporary licenses and made them permanent is your neighbor in Massachusetts,” he said. “Most other states have let the temporary licenses expire, and that’s unfortunate given the spike in the number of COVID cases we’ve seen.”

An outdated system

State licensing boards typically meet monthly and approve license applications at their meetings. Though modern technology allows instant online application submissions, New Hampshire’s licensing system operates on a 19th century schedule of in-person meetings and infrequent reviews. Getting an application approved through the regular process can take months.

“Vermont’s doing it in 24 hours, and we’re competing for the same licensed person,” Courtney said. “You have to keep up with the times, and people are not going to wait around 60 days.”

Vermont a few years ago overhauled its professional licensure process to make it easier and faster to get a state license. (The reform was funded by a federal grant received in 2018.) 

The Green Mountain state processes all applications online and offers fast-track recognition for professionals who hold out-of-state licenses in many occupations. Under Vermont law, three years of experience practicing a regulated occupation in another state is considered sufficient experience to qualify for licensure.

“Colorado and Vermont are among the most efficient in the country at getting licenses processed,” Professor Kleiner said. “Vermont’s very efficient.”

Arizona passed a universal license reciprocity law in 2019. Since then, 4,000 people have used it to obtain state licenses. 

Such comprehensive reforms have never gotten far in New Hampshire. Some state boards have made improvements, for example by passing rules to allow the OPLC to process license applications between meetings. Others, including the boards for psychologists and licensed alcohol and drug counselors, haven’t. 

“We have a psychologist who lapsed his license,” Courtney said. “He’s been practicing for 30 years. He also practices in another state. It took him a month. If he had had patients, that would’ve been problematic because he would’ve had to choose between cutting them off or committing a violation.”

No serious complaints

Licensing boards often object to automatic reciprocity by arguing that it would jeopardize public health and safety. The record of the last two years suggests otherwise. 

The governor’s emergency order recognizing out-of-state health care licenses in New Hampshire took effect on March 23, 2020. Since then, 22,328 emergency licenses have been issued. Yet the state has received only two complaints about emergency license holders, Sen. Hennessey testified during the Jan. 11 meeting of the Senate Finance Committee. 

Neither of those complaints was serious enough to go to a hearing, Courtney said.

The number of practitioners operating under an emergency license varies by field. They include a single acupuncturist, six midwives, nine optometrists, 25 dietitians, and 92 licensed alcohol and drug counselors. In fields with significant shortages, the numbers can be substantial. Emergency licensees include 1,064 licensed clinical social workers, 2,104 Advance Practice Registered Nurses, and 14,920 physicians.

Far from creating a public health problem, these emergency licensees likely saved numerous lives by providing services that would not have been offered otherwise. Hospitals and nursing homes in particular have relied on emergency licenses to stay staffed during the last two years. 

Even with these additional health care workers, some facilities have had to close rooms and limit services. Were it not for the thousands of additional staff made available through emergency licensure, these closures would have been much worse. 

Despite the stressful conditions and difficult working environment that has prevailed for two years, only a few complaints have been made against emergency licensees, and none was serious enough to bring to a hearing. The tiny number of complaints is powerful evidence that the safety concerns regarding large-scale license reciprocity are unfounded, according to Courtney.

“I think we’ve shown that the world doesn’t end and the sky doesn’t fall when we remove some barriers for licensure,” she said.