2022 Indiana General Assembly Ends With Hard-Fought Wins for Indiana’s Environment
The gavel has come down on the 2022 Indiana General Assembly. The brisk session was consequential from an environmental and energy perspective, as we note in our 2022 End of Session Report.
The Hoosier Environmental Council (HEC), our environmental partners, and other key allies secured three major public health victories, four wins for the cause of the sustainable economy, and one critical success for the good of our land and water this legislative session.”Tim Maloney, HEC’s Senior Policy Director
HEC’s outgoing Executive Director, Jesse Kharbanda, for whom the 2022 legislative session will be his final one, praises colleagues internal and external to HEC:
Despite long odds, the public interest prevailed on several environmental fronts this session. Victories happened, more often than not, due to the encouraging alignment between public interest and business interests, and voices of diverse ideological backgrounds coming together. I am grateful for the indefatigable efforts of Tim Maloney and Dr. Indra Frank both as our Statehouse presence and as key coalition builders for HEC, for the swift, very helpful legal analysis and stakeholder engagement of HEC’s Senior Attorney Kim Ferraro, and for the focused and critical community organizing by Emily Plunkett and Delaney Barber on our Outreach Team.”
Check out HEC’s list of lawmakers who showed environmental leadership and opposition this Legislative Session.
Take a look back at HEC’s Bill Watch 2021.
Wabash Valley Resources intends to produce hydrogen fuel from petroleum coke, plastic waste, and biomass at a plant along the Wabash River and wants to inject the resulting CO2 emissions underground to sequester the carbon. The project will require a US EPA permit which has not been granted yet. Environmental, health, and property risks have not been fully disclosed or evaluated yet, so any grant of legal protection from damages is premature, and potentially harmful.
Unwarranted language to provide legal protection to a controversial carbon sequestration project in Terre Haute -- contained in HB1249 and SB 265 - may come back to life in the final week of session. SB 265 was defeated on the House floor and the House bill was never heard in Senate committee. There were indications that the language may be added in conference committee to HB 1103, a bill addressing various DNR matters, but the language ultimately was not added to the final version.
Thank you to everyone who has emailed or called your state legislators.
HB 1100 -- Agency oversight and rulemaking procedures -- would limit Indiana state agencies' ability to adopt timely and appropriate state standards to protect public health and the environment. Besides adding new burdens for agencies in adopting and renewing their administrative rules, and expanding legislative involvement in the executive branch role in implementing state laws, the bill also includes "no more stringent than" language that would prevent the state from adopting any rules that are more stringent than corresponding federal rules. This would eliminate our agencies' ability to craft environmental protection rules, for example, that are tailored to Indiana conditions and threats, or that fill in gaps where federal rules are silent.
HEC and our allies have opposed "no more stringent than" policies for many years. In 2016, the General Assembly amended IDEM's rulemaking procedures to require notice to the legislature any time the agency was proposing more stringent rules, and delay effectiveness for a limited time period while the legislature reviewed these rulemaking notices. However, this legislation did not prohibit state rules that were more stringent than federal rules. HB 1100, in contrast, directly prohibits more stringent Indiana rules, without defining the term or providing any flexibility to Indiana agencies to address Indiana-specific concerns and needs.
For additional information and updates on HB 1100, visit our dedicated HB 1100 page.
HB 1100 passed the House, but it was denied a vote in the Senate Commerce and Technology Committee. Thank you for your calls and emails.
While HB 1100 died in the Senate, language from the bill reappeared and was passed as a part of HB 1211. HB 1211 now includes:
- The requirement to update rules every 4 years (rather than every 7 years)
- The requirement that all emergency rules need to be vetted by the Attorney General
Update, March 16th: Thanks to your calls and emails, HEC's efforts, those of our partners', and the Holcomb Administration's own efforts, Governor Eric Holcomb vetoed HB 1211! Please thank the Governor for his foresight at email@example.com.
HB 1063 would alter the standards that govern the way a trial court reviews the decision of an administrative agency. Such decisions include rulings of the Office of Environmental Adjudication (OEA) and the Natural Resources Commission (NRC) that are charged with reviewing administrative appeals of IDEM and DNR permitting and enforcement decisions. Under current law, a party who seeks judicial review of an OEA or NRC ruling has the burden of proving that the decision is unlawful, the evidence is limited to the administrative record, and the trial gives deference to the agency's factual findings. This makes sense because it should not be easy to overturn the considered decisions of government agencies that have special expertise and have to make decisions in accordance with regulatory and procedural requirements. HB 1063 would change that by eliminating the deference a trial court gives to the agency findings of fact, would allow new evidence to be introduced that was not before the administrative agency when it made its decision, and in enforcement actions, the burden of proof would be shifted to the agency to defend its decision, instead of the current standard which requires the industry to prove that the agency's enforcement action is unlawful. These are dangerous changes to the judicial review process because they would allow regulated industries to exert even more undue pressure on IDEM and DNR to do industry’s bidding out of fear that industry will more easily prevail on judicial review. These changes would also turn administrative hearings before the OEA and NRC into an empty exercise that must be repeated in civil courts because the evidentiary record would have to be recreated all over again wasting significant time and resources. For this reason, HEC and industry stakeholders are in agreement that the bill is bad policy.
While HB1063 passed the House, it has been denied a hearing in the Senate. Thank you for your calls and emails.
- SB 248 - enables future solar owners to take advantage of traditional "monthly netting" when net metering is replaced by a new credit mechanism
- SB 314 - extends the life of net metering (beyond its expiration in the middle of 2022) and significantly increases the number of Hoosier homes, businesses, places of worship, and schools that could benefit from net metering
Indiana enacted a very controversial anti-solar energy law (SEA 309) in 2017, despite broad-based opposition from an array of public interest groups, renewable energy companies, and tech CEOs. In essence, SEA 309 eliminates net metering, which credits solar owners, at the retail rate, for any solar electricity that they do not use on-site. Since SEA 309's passage, lawmakers, on both sides of the aisle, are increasingly interested in ways to promote rooftop solar.
- HB 1196 - provides a path for prospective solar owners to be able to install rooftop solar in neighborhoods governed by a homeowner association that may have restrictions or prohibitions against rooftop solar
- HB 1304 - enables future solar owners to take advantage of traditional "monthly netting" when net metering is replaced by a new credit mechanism
- HB 1136 - extends net metering by three years; raises the cap on net metering from 1.5% to 3%; allows cities, counties, and schools to aggregate no more than 3 meters for net metering
- HB 1250 - requires each investor owned utility to establish community solar projects every two years
HB 1196 is set to become law! Thanks very much for your calls and emails. HB 1304, HB 1136, and HB 1250 were all unfortunately denied hearings.
SB 411 has to do with creating an opt-in program whereby in exchange for cities or counties agreeing to standards for solar and wind farm projects in their community, the State of Indiana would provide an incentive payment per megawatt-hour of energy generated.
The Hoosier Environmental Council is very supportive of renewables and very supportive of incentives to promote renewables. We are supportive of the renewable energy siting bill SB 411 (with one key caveat)..
It's so key that utility-scale solar farms are “built right”, from the vantage point of stormwater control, soil & water conservation, community pride, and more. These solar projects are very large – 1,000+ acres or more – and the total footprint of these solar farms, by the end of the 2020s, could be comparable to the size of Indiana’s entire state park system. Building these solar farms in a way that works with the topography, soil, drainage patterns, and more is so crucial. SB 411 does not prohibit local governments from enacting environmentally friendly solar ordinances, but it gives landowners -- for counties that opt into the SB 411 incentive program -- the power to "veto" such a county government requirement with respect to projects that they are involved in, as reflected on page 15, Section 11.
It is HEC's concern -- and that of other organizations that have reviewed this language (which did not testify on the bill) -- that landowners could exercise "the veto" on the worry that such environmentally-friendly/pollinator-friendly fields will contaminate adjacent agricultural fields with invasives or noxious weeds However, there is no overlap between the pollinator-friendly plants recommended by the Xerxes Society, the national leader in pollinator conservation, and the detailed noxious weed list maintained by the DNR.
If an environmentally-friendly or pollinator-friendly county solar project (arising from an ordinance’s groundcover requirements) was rejected by virtue of a landowner veto, it could mean building a solar farm – that could last 20+ years – in a way that is not in the best interest of the county, from the vantage point of stormwater control, soil and water conservation, wildlife protection, or the aesthetics of the county.
We had proposed an amendment to either a.) delete the "agreed to by the landowner" language (in Section 11 above) or b.) replace it with language that gives County Extension Agents or Soil & Water Conservation Districts a say in determining whether a pollinator seed mix could pose a serious crop yield risk to adjacent crop fields. Despite an array of efforts by HEC and our allies, these amendments were not adopted.
SB 411 is set to become law, but it was stripped of any incentive payment. It's unclear whether counties will participate in this program in the absence of an incentive payment.
SB 269 was amended in the House and now has a mix of good and bad.
Bad: This bill would reduce the number of significant hazard and low hazard dams in Indiana that are regulated (e.g. regularly inspected). Indiana's dams are aging and Indiana is receiving more precipitation and more extreme storms, which puts additional strain on dams. This is not a good time to be reducing dam regulation.
Good: The bill requires owners of high hazard dams to write and periodically update an emergency action plan. This provision in SB 269 is a significant step forward for dam safety in Indiana.
SB 269 bill has passed both the Senate and House and is headed to the Governor's desk to be signed into law.
Wake boats create large wakes even at slower speeds. If they are close to shore, the large wake can cause shore erosion and damage piers. In shallow water, the wake can churn up bottom sediments which encourages overgrowth of algae and harms aquatic fish and plants. Lake-friendly boating lets everyone enjoy Indiana's lakes, while protecting them.
SB 187 would have prohibited wake boarding or wake surfing between sunset and sunrise with some additional limits for smaller lakes. The bill passed the Senate but met with opposition in the House where it was not brought to the floor for a vote.
Please thank your state senator if they supported SB 187.
SB 85 will create a Drainage Task Force to examine the current responsibilities of landowners, state, and local authorities and to examine the balance between state and local authority when it comes to drainage. It has passed both the Indiana House and Senate and is headed to the Governor's desk to be signed into law.
Prior to the arrival of European settlers, 24% of Indiana’s land was wetland. The original wetlands were drained to make way for towns, roads, and farms. In the 1980s, the DNR estimated that 85% of Indiana’s original wetlands had been drained. If the drainage is stopped and the land is left to its own, it reverts back to wetland.
Over time, society learned that wetlands weren’t just a nuisance; they were essential. Wetlands can hold between one and one and a half million gallons of water per acre. While a wetland holds that water, it is soaking into the ground and recharging the aquifer, and it is slowing the rate at which stormwater runs downstream, thus reducing flooding. Wetlands also provide essential habitat for many species.
Our laws need to strike a balance between the need for agricultural drainage and the need for wetlands. At the statewide level, one of the questions we face is how much of the land can we drain and still have enough wetland?
We need the stormwater storage wetlands provide more than ever. Climate data compiled at Purdue University show that Indiana is receiving an average of 5.6 inches more precipitation per year now than it did in the 1890s.
HEC recommends that the new Drainage Task Force take the work of the Indiana Wetlands Task Force into consideration. SB 85 has passed both the Senate and the House.
Lead poisoning permanently damages a child's developing brain leaving them with lower intelligence and a higher risk of attention deficit and behavior problems. Currently, more than 2,000 Hoosier children per year are lead poisoned. That is a burden for those children, who won't achieve their full potential and an economic loss for society.
HB 1313 will require medical providers to offer lead testing for children 9 to 72 months who have not previously been tested. The requirement expires at the end of 2026. This will establish 3 years of additional testing and give the state data to better define which children are at the greatest risk.
The bill passed both the House and the Senate and is headed to the Governor to be signed into law.
Please thank your state representative and state senator if they voted to support HB 1313. See how they voted here:
Senate Bill 261 would create a special "right" for an "individual" to "grow, raise, produce, harvest, and consume the food that the individual chooses" and bars local governments from using their zoning authority "to prohibit or have the effect of prohibiting the growing or raising of food." While that language may seem innocuous, factory farms "produce" animals for food and, therefore, could be shielded from local zoning restrictions should SB 261 become law. Factory farms already enjoy unprecedented legal protections and special privileges in Indiana that allow them to cause harm with almost absolute impunity. There is no need to provide this industry with even more special protection.
SB 261 was assigned to the Senate Agriculture Committee, and it did not advance.
The Purdue Climate Change Research Center has forecasted that Indiana will be subject to increasingly severe and frequent flooding, reduced crop yields, threatened infrastructure, and more.
Indiana's lawmakers have a moral and fiscal obligation to protect Hoosiers from the increasingly higher costs of climate change on our people, infrastructure, economy, and environment. Senator Ron Alting (R-Lafayette) (in partnership with the youth leaders of the West Lafayette, IN-founded Confront the Climate Crisis) has introduced a climate resolution SCR 3 that aims to get lawmakers to formally acknowledge the key facts and key forecasts about climate change. Senator Alting also filed SB 255 which would have established a Climate and Environmental Justice Task Force that would methodically assess how Indiana can accelerate the reduction in greenhouse gas emissions, the adaptation of the economy to climate change, and the development of a vibrant sustainable economy.
SB 255 was denied a hearing in the Senate Environmental Affairs Committee.
Ask your State Representative and State Senator to convey to their respective legislative leaders that they want to see a "climate study committee in the fall of 2022".
HEC does not have a formal, overall position on nuclear energy technology. We are aware that the units themselves emit modest carbon-equivalent emissions per kilowatt hour and we are aware, at the same time, that such technologies cause real concern with respect to uranium mining & refining, and long-term spent fuel and radioactive waste storage.
We oppose SB 271 because nuclear power is not a cost-effective climate solution:
Nuclear power is more expensive than other alternative energy resources.
According to the Wall Street investment firm Lazard, a new nuclear plant will generate electricity at an average cost of over four times the estimates of new wind and solar energy plants, respectively. Keep in mind that a state like Iowa, with a robust agribusiness and industrial sector, is generating more than 50% of their power from intermittent renewable energy sources and maintaining reliable – and affordable -- power.
Nuclear power cost overruns are not a perception, they are a reality.
- The Vogtle nuclear plant on the Savannah River in Georgia was projected to cost $14 billion. That cost is now $30 billion. And counting.
- $9 billion was expended on a new nuclear plant in South Carolina and that project was eventually abandoned, creating one of the biggest scandals in South Carolina history’; there are 80% more abandoned projects than active projects globally
- Please keep in mind that both Vogtle and Summer relied to a high degree on modular AND factory-made components
Utility-scale renewables projects can be deployed much faster than SMRs.
SMRs are projected to have at least a 3-5 year timeline, taking into account fabrication and construction projects happening in parallel. In contrast, the comparably sized Riverstart solar project in Randolph County (200 Megawatts in size) was completed in less than 18 months. Less time means less risk of cost overruns.
Indiana, which has dramatically lost its energy cost competitiveness, is a state for which it would be especially unwise to roll out a costly technology like SMRs for which there are no commercial projects in the U.S.
Our current electricity mix leads us to be the 22nd most competitive state when it comes to electricity prices (as of 2017 data). Keep in mind that we were the 4th most competitive state fifteen years before.
So while HEC has no formal position on nuclear power, we do not believe that SMRs would be a cost-effective climate solution for Indiana based on the reasons above.
This bill is set to become law.
Indiana has been interpreting existing laws in a way that allows millions of tons of coal ash to be left in contact with groundwater and disposed of in floodplains. When coal ash gets wet, it contaminates water with toxic heavy metals. All the unlined coal ash disposal sites in Indiana have contaminated local groundwater with a variable mix of molybdenum, lithium, boron, arsenic, cobalt, antimony, radium, lead, selenium, and thallium. Leaving coal ash in contact with groundwater means the contamination goes on indefinitely. Getting it out of groundwater prevents contamination.
Flood-prone areas, like the floodplains of Lake Michigan and our major rivers, are among the worst locations for coal ash disposal, yet the majority of Indiana's coal ash is currently disposed of in floodplains.
The EPA made important clarifications of the federal coal ash rule on January 11, but that did not eliminate the need for one of these bills to pass. Passage would have put safe coal ash disposal in state law and that would have meant continued protection of Indiana's waters even if a future administration in Washington, DC, changed the federal rule.
Bills were introduced in both the Indiana House and Senate to protect Indiana's natural resources by getting coal ash out of groundwater and out of the floodplain: HB 1335 in the House and SB 412 in the Senate. Neither bill received a hearing in committee, so they did not move forward.
Please visit IndianaCoalAsh.org for more information on HEC's work to get safe coal ash disposal in Indiana.
Many people and organizations spent a lot of time in 2021 trying to stop a bill that reduced protection of wetlands. This year, there was a bill to help preserve more wetlands. HB 1334 would have given property owners a tax break if they preserved the wetlands on their property.
Learn more about the importance of wetlands.
HB 1334 did not have a hearing, so it did not move forward.
Let your state legislators know that you would like to see tax incentives for wetland protection in the 2023 legislative session.
Lead is toxic to the nervous system and is especially harmful for young children. HB 1378 would have required Indiana's preschools and childcare facilities to test their drinking water for lead and take action if the lead concentration was high.
Lead poisoning permanently damages a child's developing brain leaving them with lower intelligence and a higher risk of attention deficit and behavior problems. Currently, more than 2,000 Hoosier children per year are lead poisoned. That is a burden for those children, who won't achieve their full potential, and an economic loss for society in medical care, remedial education, and lost opportunity. In a recent Indiana study, 62% of the 915 school buildings tested had at least one tap or water fountain with high levels of lead. It's time to check the water in preschools and childcares.
If HB 1378 did not have a hearing in committee, so it did not move forward.
Learn more about how to protect the children in your life from lead.
The meat and dairy industries already enjoy unprecedented legal protections under Indiana law. Indiana's Right to Farm Act strips rural landowners of their property rights when a factory farm moves in next door. Indiana's environmental regulations place no restrictions on factory farm air pollution, no restrictions on pathogen contamination of surface waters by factory farms, and only meager protection for ground and surface waters from nutrient pollution. The meat and dairy industry also already enjoys a statutory right to engage in its "generally accepted livestock production practices," including factory farming. Apparently this is not enough--now the industry wants a constitutionally protected "right to harm." Senate Joint Resolution 2 would amend Indiana's Constitution to create a new, fundamental right to “engage in diverse farming and ranching practices” such that “any law” that abridges the “right of farmers to employ or refuse to employ effective agricultural technology and livestock production and ranching practices," i.e., factory farming, would be deemed unconstitutional. The Indiana General Assembly has repeatedly rejected similar measures introduced in recent years for good reason--creating a constitutional "right" to factory farm on par with our guaranteed freedoms of speech and religion would make it incredibly difficult to pass new regulations (state and local) for protection of food and worker safety, animal welfare, public health, and the environment.
The Farm System Reform Act is a federal bill that was introduced in 2021 by US Senator Cory Booker and Representative Ro Khanna. The bill would, among other things, halt the development of large CAFOs, provide a voluntary buyout option for farmers who operate an existing CAFO, require meat products to disclose the country of origin, and strengthen anti-trust laws so that they protect consumers from destructive, monopolistic business practices in the agricultural industry. To learn more about the Farm System Reform Act, click here.
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