[Date Prev][Date Next][Date Index]

E-M:/ Memo from the beast -- American Legislative Exchange Council

Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>

Here is an insider memo discussing legislative plans of the 
American Legislative Exchange Council, a right wing, industry-funded
outfit by which legislative sycophants do the bidding of industrial lobbyists
and then pretend it is good public policy.


Subject: NCEL ALEC Alert: Model bills report from ALEC's Annual Meeting



National Caucus of Environmental Legislators


ALEC Alert

September 1, 2005

TO: NCEL Participants
FROM: Adam Schafer
SUBJECT: Model bills report from ALEC's Annual Meeting 

NCEL staff attended the American Legislative Exchange Council's (ALEC) Annual Meeting last month in Grapevine, Texas.  NCEL was there to find out what model legislation the organization was planning to push in the 2006 legislative session.  ALEC is an organization of conservative state legislators and industry lobbyists who, together, craft model legislation on a variety of issues. Their energy and environment legislation, for the most part, seeks to limit government regulation and promotes the energy, forestry and chemical industry's agenda.  The following report summarizes the model bills that were discussed or distributed to ALEC members at the annual meeting.  If you have any questions or would like a copy of any bill, please contact NCEL at adam@ncel.net.

Adam Schafer, Program director 
National Caucus of Environmental Legislators 
7272 Wisconsin Avenue, Suite 300 
Bethesda, MD  20814 
301-941-1265 fax 

ALEC Model Bills from 2005 Annual Meeting

The following is a report on ALEC energy and environment model bills presented at the ALEC Annual Meeting in Grapevine, Texas August 3-6, 2005.  As is their procedure, both special interests and legislators participate in discussions and vote on proposed policy (separately).  This meeting focused on several pieces of model legislation discussed below.  Also, ALEC was addressed by President George W. Bush, former Speaker of the House Newt Gingrich, and Bjorn Lomborg, author of The Skeptical Environmentalist, among others.   If you have questions or would like a copy of any model bill, please contact NCEL at adam@ncel.net.

Proposed Model Bills 
The following model bills were discussed and voted on in the Environment, Energy, and Natural Resources Committee: 

State Implementation Plan for Ozone and Particulate Matter Attainment - Approved 
This model bill was introduced by Gene Trisko, who works for the Center for Energy and Economic Development, as a way for states to combat a proposal by environmental groups and state agencies that are pushing for state air rules that are stricter than rules set by the USEPA.  In particular, Trisko focused his remarks on the recently promulgated Clean Air Interstate Rule as it applies to 28 states.  He said that this model bill would stop efforts in the Great Lakes region and in the Northeast to go beyond the standards set by the CAIR. Trisko singled out such efforts by STAPPA/ALAPCO.   Should a state EPA consider regulations more stringent than federal requirements, those regulations must be subject to appropriate legislative oversight to assure they do not go too far, such as STAPPA/ALAPCO, Trisko said.  The bill also requires the state EPA to report to the legislature its plans to meet new ozone and PM standards in 2006 within sixth months of the EPA SIP filing deadline. Any proposals that go beyond the CAIR, which have been referred to as CAIR Plus, must be documented by analyses of energy use, electric reliability, economic development, utility costs and rates.  The bill requires legislative approval for any measures beyond CAIR.  

Trisko closed his presentation by referencing Bush?s visit to ALEC and said he was sure that if President Bush was aware of this model bill endorsing his air pollution rules, he would encourage ALEC legislators to introduce it.

The model bill was debated. ExxonMobil suggested that the bill be amended to apply to any state air regulations that go beyond federal EPA requirements.  This suggestion was also echoed by lawmakers in Western states who said that if CAIR only affects eastern states, this bill could not be an ALEC model bill promoted to all states. Trisko said he thought this would be a good amendment.  The bill was amended to exclude specific references to CAIR and applies to all proposed state air regulations that seek to go beyond federal rules or laws. 

An amendment was offered and adopted that limited the credit the original model bill language gave to the Clean Air Act for cleaning up the country?s air.  Comments were made that studies showed the air was getting cleaner at a faster rate before or since enactment of the Clean Air Act.  The legislators and private sector members were nervous about giving credit to the Clean Air Act. 


Protection of Homes, Small Businesses, and Private Property Act of 2005 (Kelo response) ? Sent to Subcommittee for further work

All private and public sector members agreed that the one issue all states will address in 2006 is the Supreme Court?s ruling in Kelo v. City of New London.  ALEC staff circulated a draft model bill to address this recent Supreme Court decision that said, in short, governments could exercise eminent domain powers to take private property from one owner for the private property interests of another if it served a greater public use.  

The model bill includes three sections. The first was the title ?Protection of Homes, Small Businesses, and Private Property Act of 2005.?  The second section included thirteen findings, including statements from the NAACP and AARP about how detrimental the Court?s findings were and statements from the Justices.  The third section was the heart of the bill and was only 17 lines long and included ??public use? shall not be construed to include economic development.?  

There was discussion and disagreement on how to properly define public use. ALEC staff handed out examples of how other states have defined public use.  Seeing that there was disagreement on how to proceed with the model bill and that legislators wanted more information, the model bill was placed in a subcommittee and a new draft will be presented to the committee at the December ALEC meeting.  It was suggested that the bill also be drafted so it could be used as a Constitutional Amendment if a legislator wanted to use it in such a way.  ALEC staff was directed to put together a packet of information outlining different options states could take or have taken to address the Kelo case.

A motion was made to use the ?findings? section of the bill to draft a model resolution that ALEC members could use to guide them when working on legislation while they await a re-draft of the model bill in December.  The new resolution states the thirteen findings and includes:

?Therefore be it resolved, ALEC recommends each state protect private property under the 5th Amendment by proposing legislation that would make the power of eminent domain available only for public use and ?public use? shall not be construed to include increased tax revenue or economic development as defined by your state.?

The Castle Coalition, a group that describes itself as a national coalition of citizens fighting eminent domain abuse, provided the committee with three options for possible language to limit eminent domain abuse.  The options are titled ?Requiring Eminent Domain for Public Use and Defining Public Use,? ?Prohibiting Eminent Domain for Private Business,? and ?Prohibiting Eminent Domain for Economic Development and Defining Economic Development.?

The Castle Coalition tracks eminent domain legislation introduced in the states, which includes bills introduced in response to Kelo.  The website is: <http://www.castlecoalition.org/legislation/states/index.asp>http://www.castlecoalition.org/legislation/states/index.asp.


State Electricity Transmission Authority Act - Defeated 
This model bill has been enacted in North Dakota and in Kansas. It was introduced but did not pass in Montana and South Dakota.  The bill would set up a state authority to finance and build power lines.   The bill was objected to by Edison Electric Institute because they believe it was setting up a bureaucracy that companies will have to fight against.  EEI argued that capital to build transmission, which at one recent point was not available, is becoming available. EEI argued that the bill would set up a government-run private transmission company that builds and funds transmission.

The bills only supporter was Peabody Energy.  Legislators felt that the bill went against ALEC?s principles and that there was not a need for the legislation.  The bill was voted down and will not be an ALEC model bill.

Existing Model Bills 
The following model bills were given to members of the Energy, Environment and Natural Resources Task Force.  The Model Legislation has been approved by ALEC at past conferences. 

State Standard for Federal Resource Management Act 
This model bill, which is modeled after Utah State Code subsections 63-38d-401 (6) and (7), was introduced in Wyoming in 2005 as HB11.  

The model bill lists 10 items that a state public lands policy coordinator must take into consideration in preparation of any policies, plans or programs relating to federal lands and resources on federal lands.  The findings include such items as the resource use; water rights; wildlife; forests; transportation to and across federal lands.  The model bill spells out six criteria that must be met before the state supports the addition of a river to the National Wild and Scenic Rivers System.   Five criteria are laid out for when the state will support designation of an Area of Critical Environmental Concern (ACEC).  

With regard to the Endangered Species Act, the bill requires the United States Fish and Wildlife Service to: 1) clearly demonstrate peer-reviewed science is present before any species listing; 2) consult with the state planning coordinator before any species listing; 3) consult with the state planning coordinator in all ESA consultations; 4) recognize the importance of agricultural operations in providing critical wildlife habitat; 5) consult with the state planning coordinator in setting population objectives and species habitat requirements early in the planning process to ensure recovery and delisting of any species.

The model legislation continues to set 17 additional standards for the state when dealing with federal lands.  The standards cover issues pertaining to oil and gas extraction, agriculture, mineral and timber production, recreation, off-highway vehicles, and school trust lands.  The final standard says that resource use and management decisions by federal land management and regulatory agencies should support state-sponsored initiatives or programs designed to stabilize wildlife populations that may be experiencing a scientifically-demonstrated decline in those populations.

Public Lands Policy Coordination Act 
This model bill, which was introduced in Utah in 2005 (SB239) and in Wyoming (HB11), creates a Public Lands Policy Coordination Office as a ?way to strengthen the cohesiveness of a state?s public lands policy, and keep competing state agencies? missions from negating the state?s voice in decisions involving federal land managers.? The bill works in conjunction with the Model State Standards for Federal Resource Management Act previously described.  The Coordinator is given a list of responsibilities related to the development of public lands policies.  

Verifiable Science Act 
This model legislation, introduced in West Virginia the past two sessions, would require state agencies to make publicly available any scientific reports, documents, or statistics when such information is used as the basis for regulations, guidance documents, policy statements, etc.  The legislation, it is presumed, is being pushed by ALEC to allow those who are unhappy with a state agency?s action another avenue to challenge or delay the rule or action with which they disagree.

Energy Efficiency Savings Act 
This model bill exempts from state and local sales and use tax certain appliances and products that meet federal energy efficiency standards under the ?Energy Star? program.  The tax holiday is for one month beginning October 1 and ending October 31.  

Promoting Sound Science in Climate Change Policy Act 
This model legislation requires state agencies, when adopting rules to reduce greenhouse gas emissions, to report on the amount of gas to be reduced and its benefit to the state as well as any costs to the state?s economy, including, but not limited to, price of gasoline, diesel fuel, electricity, heating oil, propane, and other energy related costs.  The report must state impact on state?s manufacturing, employment, and revenue base.  A watered down version of this bill was enacted in Maine in 2005.

The Right to Practice Forestry Act 
The model bill?s stated purpose is to ?assert that forestry may not be considered a nuisance if the forestry operation adheres to customary forestry management practices.? The bill lists a number of findings favorable to the forestry industry. The bill is an attempt to exempt forestry practices from public nuisance laws and to shield the timber industry from such law suits.  The bill also preempts local government from enacting ordinances that may ?hinder forestry operations that are in accordance with generally accepted forestry management practices.?

State Data Quality Act 
The model State Data Quality Act is generally thought to inhibit state agencies? abilities to develop regulations and act on information effectively, according to OMB Watch.  The following is an analysis of the bill from OMB Watch (<http://www.ombwatch.org/article/articleview/1393/1/1>http://www.ombwatch.org/article/articleview/1393/1/1):

?The <http://www.ombwatch.org/info/dataquality/statedq.pdf>model State Data Quality Act is clearly derived directly from the federal Data Quality Act and the <http://www.whitehouse.gov/omb/>Office of Management and Budget (OMB) guidelines instructing implementation of the Act. Similar to its federal counterpart, the state model language requires agencies to develop guidelines in order to maximize the quality, objectivity, utility, and integrity of information. Mirroring the federal data quality guidelines, the state data quality proposal orders state agencies to establish administrative mechanisms that allow affected parties to request corrections in information. 

?Even though the model state data quality bill has several similarities to the federal legislation, it is important to note that the state version is much more detailed then the federal legislation. In several important areas, the state model bill extends further than the original federal law. The federal Data Quality Act actually only amounts to a 15-line rider attached to an appropriations bill with generic and vague language. However, the state model data quality bill is four pages long with very detailed principles. Clearly, the state version incorporates the OMB data quality guidelines, which created the detailed set of policies and procedures that agencies were to adapt into their own information quality guidelines. 

?The model state data quality bill not only attempts to reinforce the federal law with state versions, but also attempts to codify aspects of the federal regulatory guidelines into state law. This would make the state data quality legislation much stronger and more binding then the federal law. Since the federal Data Quality Act is extremely limited in scope, it initially granted the regulatory process a great deal of flexibility in implementation. Unfortunately, OMB eliminated much of that flexibility with the overreaching and extensive guidelines. Even after the restrictive OMB guidelines were produced, agencies still had some individual flexibility in adapting the information guidelines because they were guidelines and not laws. The longer and more detailed state legislation eliminates much of the flexibility left to state agencies by locking many of the factors into law. 

?The model data quality bill extends the data quality policy to cover a number of areas that the federal version does not include. First, the definition of ?dissemination? varies significantly between the federal Act and the state bill. As stated in the state model data quality bill?s Principles, section 5.1, data quality standards apply to all information disseminated by an agency. The federal Data Quality Act specified in its definition of dissemination a number of exemptions including inter- and intra-agency communication, information only used by government employees, press releases, and a number of others from falling under data quality standards. The state definition of dissemination does not define any exemptions. This could mean that agencies would lose much of their ability to share information within and between state agencies. Additionally, the state data quality bill specifically states that its policies cover information disseminated by the state to the Federal government. These extensions in the scope of material and communication covered by the data quality process could greatly hamper agencies? effectiveness. Since September 11, the fast and efficient sharing of information within the government has been an important topic. It seems extraordinarily shortsighted to undercut those efforts with an overly restrictive state data quality law. 

?Another significant change from the language of the federal Data Quality Act is the state model?s Principle, section 5.5, which requires agencies to immediately stop disseminating any information that is found to be out of compliance with the guidelines or the Act. The agency is also responsible for correcting the information as soon as reasonably possible. Neither the federal Data Quality Act nor the OMB guidelines ever specifically stipulated what actions an agency should take if information is found to not meet the standards. At the federal level agencies are allowed to determine responses to each request for correction individually, including whether to stop dissemination or to correct the information. These examples expose the additional barriers that the model state data quality bill contains which would create further restrictions in how state agencies can use information."

Presentations to the Energy, Environment and Natural Resources Task Force 
During the Energy, Environment and Natural Resources Task Force meeting, presentations were made by: 

·       US Sportsmen?s Alliance, ?Hunting: Different Age Requirements Between States? - The Sportsmen?s Alliance, whose mission is to protect and advance America?s tradition of hunting and fishing, is forming Caucuses in states around the country. One issue they will be pushing is legislation to increase the number of hunters.  The option they are pushing is to get rid of age restrictions and hunter safety courses in favor of ?supervised? hunts.  

·       The Carpet & Rug Institute, ?Environmental Health? ? Jenn Mendez made a brief presentation to the task force making them aware of environmental health legislation moving in the states and cautioned the legislators to look for causation whenever they deal with legislation to ban a substance because it is reported to have a negative effect on human health.  Legislation highlighted was biomonitoring legislation introduced in California, Minnesota, New York and Oregon.  The creation of an Environmental Health committee in Illinois was discussed.  The presenter also made the task force aware of bills to ban brominated flame retardants. She gave the task force a list of ten questions to ask scientific experts, which can be found on page 48 of ALEC?s Energy, Environment and Economics booklet given to each legislator.   

·       Chlorine Chemistry Council, ?ChlorineTree.com? ? The Chemistry Council announced they have launched a new website that highlights the benefits of chlorine and encourage legislators to use it as a resource. 


Additional model legislation that seeks to restrict states' actions to control greenhouse gases can be found in ALEC's "Energy, Environment, and Economics" booklet. The model bills are at the end of the booklet and can be downloaded at: <http://www.alec.org/meSWFiles/pdf/ALEC_Energy_Book.pdf>http://www.alec.org/meSWFiles/pdf/ALEC_Energy_Book.pdf.

For More Information Contact: 
Adam Schafer, Program Director 
National Caucus of Environmental Legislators 
7272 Wisconsin Avenue, Suite 300 
Bethesda, MD  20814 
301-941-1920    adam@ncel.net 

Alex J. Sagady & Associates        http://www.sagady.com

Environmental Enforcement, Permit/Technical Review, Public Policy, 
Evidence Review and Litigation Investigation on Air, Water and 
Waste/Community Environmental and Resource Protection
Prospectus at:  http://www.sagady.com/sagady.pdf 

PO Box 39,  East Lansing, MI  48826-0039  
(517) 332-6971; (517) 332-8987 (fax); ajs@sagady.com

=============================================================ENVIRO-MICH:  Internet List and Forum for Michigan Environmental
and Conservation Issues and Michigan-based Citizen Action.   Archives at

Postings to:  enviro-mich@great-lakes.net      For info, send email to
majordomo@great-lakes.net  with a one-line message body of  "info enviro-mich"