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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.

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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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