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Indiana joins other states challenging EPA regulatory authority

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Indiana has joined 11 other states in filing a lawsuit against the U.S. Environmental Protection Agency, taking the unusual tactic of challenging the federal government’s authority to regulate greenhouse gases rather than challenging the rule itself.

The complaint, filed Aug. 1 in the U.S. Court of Appeals for the District of Columbia Circuit, asserts the federal agency overstepped its authority by attempting to regulate greenhouse gases from existing power plants. At the center of the dispute is a section of the federal code which was passed by Congress and signed by the president without two separate amendments being reconciled between the U.S. House of Representatives and the U.S. Senate.

iplcoalplant-1-15col.jpg Indianapolis Power & Light’s Harding Street plant will stop burning coal in 2016. (IL Photo/Eric Learned)

That Indiana is among the states bringing this lawsuit is not surprising. The Hoosier State is heavily dependent on coal-fired power plants and is one of the highest consumers of coal among its neighbors.

Any EPA regulation tightening greenhouse gas emissions would mean higher electric bills for both industry and households in Indiana.

The states challenging the EPA’s authority have significant hurdles to clear. By arguing the agency is exceeding its authority, they

are trying to convince the court to take the uncommon step of stopping a proposed rule rather than a final rule. In addition, they are trying to persuade the court to hear their suit even though it was filed well after the deadline.

Still, Jeff Stemerick, associate at Taft Stettinius & Hollister LLP, was not quick to dismiss the states’ chances. Should they prevail, there would be serious consequences for the federal government.

“I think if (the states) win,” Stemerick said, “I don’t think the EPA could do much to curb emission from existing power plants.”

Source of the dispute

The lawsuit stems from a settlement agreement the EPA reached in 2010 with a collection of states, mostly from the Northeast, and environmental groups including the Sierra Club.

Under the agreement, the EPA proposed rules under Section 111(d) of the Clean Air Act for regulating carbon dioxide emissions from new and modified power plants. The agency also proposed rules under the same section for existing power plants.

coal-bars.gifIndiana and its co-petitioners contend regulating power plants already in operation was a step too far.

Specifically, the states argue the EPA is prohibited from regulating emissions from existing sources under CAA Section 111(d) because it has already placed limits on those sources under CAA Section 112.

“It’s a Hail Mary,” said Joanne Spalding, senior managing attorney at the Sierra Club, referring to the lawsuit.

Spalding expects the D.C. Circuit will dismiss the lawsuit “in the blink of an eye” because the court typically does not consider challenges to proposed agency actions. It is unlikely the court will stop the EPA from making the rule.

In addition, Spalding said, the states are attacking the settlement but, regardless of the settlement agreement, the federal agency has an independent legal obligation to follow the law. And the law requires the EPA to regulate new as well as existing sources of carbon dioxide.

Amy Romig, partner at Plews Shadley Racher & Braun LLP, said the states have made a solid legal argument in their lawsuit. The petition is asking the court to provide guidance to clear up confusion surrounding the Clean Air Act.

“I really do think that this will result in an important decision saying how the various sections of the Clean Air Act interact with each other,” Romig said.

The states argue for a plain reading of Section 111(d). They bolster their claim by citing the U.S. Supreme Court’s 2011 decision in American Electric Power Co. Inc., v. Connecticut. In a footnote, the court held the EPA cannot use Section 111(d) if the “existing stationary sources of the pollutant” are regulated under the “hazardous air pollutants’ program” of Section 112.

The conflicting interpretation of the Clean Air Act arises from 1990 amendments. Both chambers of Congress passed separate amendments to Section 111(d) but they were never reconciled during the conference committee. Both were enacted into law.

The Senate amendment excludes the regulation of any pollutant “included on a list published under Section 112(b).” Conversely, the House amendment excludes the regulation of any pollutant which is “emitted from a source category which is regulated under Section 112.”

The EPA maintains that since the two versions create an ambiguity, it may “reasonably construe” it has the authority to regulate greenhouse gases under Section 111(d).

Coal country

Indiana Attorney General Greg Zoeller said the state’s lawsuits against the federal government, including this one over greenhouse gases, are a way of preserving the balance between Washington, D.C., and state governments. In a letter sent to Indiana newspapers, Zoeller said the lawsuits are not policy debates but rather are testing whether the federal government’s actions are permissible under law.

The state’s residents might see the lawsuit as more of a pocketbook issue.

Although the economy and the increased use of natural gas have eaten into Indiana’s coal consumption, the state depends primarily on coal to generate electricity. According to statistics from the U.S. Energy Information Administration, Indiana gets more than 80 percent of its electricity from coal.

“To comply with carbon limits, no question that will cost money,” said Douglas Gotham, director of the State Utility Forecasting Group at Purdue University. “That will be reflected in higher electric rates than we would have otherwise.”

While consumers do not like paying more for utilities, many do not like the pollution that often pours from coal plants’ smoke stacks.

Recently, Indianapolis Power & Light responded to such criticism when announcing it plans to stop burning coal at its complex on Harding Street in 2016. The decision came after numerous complaints from residents and environmental groups over the pollutants which accounted for about 88 percent of Marion County’s toxic industrial emissions, according to The Associated Press.

Other plants around the state have been retired as they have outlived their usefulness, Gotham said. Also, retrofitting them to meet the current environmental regulations is too expensive.

Even with the closures, Indiana will still be a coal state. The amount of investment and money needed to significantly reduce Indiana’s dependence on coal “would be kind of astounding,” Gotham said.

Too late?

Before getting to its arguments over the EPA’s authority, the states have a significant procedural hurdle to clear. The petitioners filed their lawsuit well beyond the 60-day limit to comment on the 2010 settlement agreement.

Stemerick said the states made a “pretty good argument” in explaining their reason for filing beyond the deadline. They contend the issue ripened only when EPA announced its “flawed view of its Section 111(d) authority.”

Whether the lawsuit is too late to challenge the 2010 settlement is a close call, Romig said. Especially since the American Electric Power decision was not handed down until 2011.

Even if the lawsuit is dismissed, Romig said the fight against greenhouse gas regulation will not die. The final rule will likely be challenged, although the effort might be more limited because the rule will have been finalized.•

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  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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