ILNews

'No-more-stringent' measure stirring controversy

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

Editor's note: After this issue went to press, House Bill 1143 was killed in committee.

A bill winding through the Statehouse would alter Indiana environmental regulatory process by shifting most of the authority to enact new rules from the executive branch to the Legislature.

Rep. David Wolkins, R-Warsaw, has introduced his “no-more-stringent” bill for a decade or more in the Indiana General Assembly. The measure would prohibit the state from enacting an environmental rule or regulation that is stricter than the comparable rule from the federal government.

devoe DeVoe

The handful of times the bill has cleared the House of Representatives, it stalled in the Senate’s Environmental Affairs committee chaired by then-Sen. Beverly Gard. This time around, business groups are supporting the measure and Gov. Mike Pence’s administration has been quiet so far, which is fueling speculation that the bill could become law.

“I’m an anti-regulation guy,” Wolkins said. “I’m pretty far right. I want government doing only what they have to do.”

Opponents contend if House Bill 1143 ends up as law it will prevent the state from proactively enacting policies that could protect against the deterioration of the state’s air, water and land or against a large environmental disaster like the water contamination experienced recently in West Virginia and the coal-ash spill in North Carolina.

Wolkins pointed out that his bill does not outright ban all new regulations. Should the potential for a real disaster arise, he said, the Legislature could pass a law to prevent it and probably establish the law faster than the rulemaking process.

He maintained the General Assembly should make the rules rather than an “unelected bureaucrat.”

“I don’t want Indiana regulators to get carried away,” Wolkins said.

However, others disagree that the Legislature could respond. A primary concern is the General Assembly does not have scientific and technical experts like those that work in the regulatory agencies.

Also, opponents of the bill pointed out the irony that at a time when many states are pushing back against federal mandates, HB 1143 limits Indiana’s discretion to set policy.

Gard, now chair of the Indiana Environmental Rules Board, described the bill as bad public policy.

“For a state that puts such high value on states’ rights and self-determination, this proposal would take Indiana in the opposite direction,” she said.

wolkins Wolkins

Rep. Matt Pierce, D-Bloomington, said the Legislature already has the final word on any environmental rule and can pass a law that voids or rewrites a regulation devised by the administration. The advantage of formulating the rule outside the House and Senate is that the agencies tend not to get as mired in politics as the legislative bodies can.

“It makes no sense to limit the state’s discretion to enact environmental rules in a way that’s best for Indiana,” Pierce said.

To illustrate his point, Pierce pointed to the time when the General Assembly tried to pass a net metering bill. The measure allowed those generating electricity through wind turbines and solar panels to sell any excess energy back to the power company. This was seen as a way to encourage the use of renewable energy resources.

Disagreements developed over how much electricity could be returned to the grid. Republicans, like the utilities, wanted less kilowatt hours while the Democrats wanted a higher rate.

In conference committee, Pierce recalled no one making factual arguments about how much the grid could handle or any type of analysis. Rather the conversation resembled a pseudo-bidding process where legislators asked their colleagues if 20 kilowatt hours were too much, then how did they feel about 10 kilowatt hours.

Finally, the Indiana Utility Regulatory Commission took up the matter and wrote a net metering rule much to the relief of the Legislature.

Business and industry

Other states have “no-more-stringent” laws like the one being considered in Indiana. And companies, especially those that operate in multiple locations, prefer having to comply with a single set of regulations rather than navigating a patchwork of rules that change when state lines are crossed, according to environmental lawyers.

Compliance is a top priority for most businesses since violations can bring heavy sanctions including criminal penalties, said Curt DeVoe, partner at Plews Shadley Racher & Braun LLP in Indianapolis.

Environmental rules from the federal government can and have been changed, usually when a new president enters office. HB 1143, DeVoe said, will take away that second level of potential change that can happen at the state level.

Internal compliance systems, which companies have in place to meet environmental regulations, form what attorney James Spaanstra called the “backbone” of the laws that protect natural resources. Since regulatory agencies are hard pressed to inspect any more than a small percentage of the facilities, giving companies a uniform standard better enables them to comply with and manage environmental protection independently.

The concern businesses have about states making their own environmental regulations, said Spaanstra, a partner in Faegre Baker Daniels LLP’s Colorado office, is the danger that the process will become politicized by local disputes. The “not-in-my-backyard” attitude could prevail over science.

Jesse Kharbanda, executive director of the Hoosier Environmental Council, countered that “culturally and institutionally” Indiana is not a state where the executive branch runs amuck, implementing policy that would be costly for business.

The executive branch, Kharbanda said, has an “extraordinary number of checks” to ensure that policies are developed with prudence. Any proposed environmental policy would be reviewed by several entities such as the Indiana Office of Management & Budget, the Indiana attorney general and the governor.

Also, the rulemaking process provides for evaluating the proposal from a technological and economic perspective, and the costs have to be publicly disclosed, giving policymakers an incentive to choose the most cost-effective policy.

As for legislatures crafting environmental laws, Kharbanda and Spaanstra shared the same concern. Like Pierce, they noted legislators do not have the level of expertise that exists in state agencies. Moreover, the legislative process for formulating new environmental policy is not as methodical and deliberative.

“We shouldn’t put ideology above the health of Hoosiers and above the prospect of revitalizing communities that are stifled by severe pollution problems,” Kharbanda said.

Implementation

Wolkins worries that the state will establish rules without regard to how much companies would have to pay to comply. He sees a need for environmental regulations, but he wants the policies to be cost effective.

The Hoosier Environmental Council believes that HB 1143 would prevent the state from addressing serious environmental problems by removing the tools needed to avoid a man-made catastrophe.

With no action from the U.S. Environmental Protection Agency, the Indiana Department of Environmental Management established in 2011 a new policy regarding outdoor wood boilers which can dispense smoke ladened with particulate matter. Now the state has emission limits and restrictions on use.

If HB 1143 had been in place, Kharbanda said, Indiana would have had its hands tied to do anything to strengthen the regulations.

The bill does contain language, Wolkins said, allowing the state to devise rules on environmental matters when the federal government has no such policies.

Opponents pointed out that missives from the federal government are not always clear and can give states options or even require them to formulate their own rules. The National Ambient Air Quality Standards program is one example where states can adopt whatever rules work best for them.

This is also the case in the Great Lakes Restoration Initiative, Gard said. Washington gave guidance on meeting the goals but required the states to develop programs that were consistent with the federal directive. Here, Indiana had no set regulations to simply incorporate into state policy.

“If federal regulations or standards provide options for states in programs, how does Indiana determine which to use?” Gard questioned. “Must we adopt the least stringent even if it does not work as well for Indiana? Under this bill the answer is ‘probably.’”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

ADVERTISEMENT