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'No-more-stringent' measure stirring controversy

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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.

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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.’”•

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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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