Indiana Real Property and Environmental Law Report

Great Lakes Restoration: An Interactive Map of GLC Work

Jeff Lorenzo — Thu, 11 Apr 2013 13:00:00 -0500

The Great Lakes Commission (GLC) has released a new interactive map of the nearly 1,000 restoration projects being implemented under the Great Lakes Restoration Initiative (GLRI). The interactive map is available on the GLC website.

It includes map overlays of Congressional districts, and state and county boundaries. The website references restoration projects funded in fiscal years 2010-2012. It also includes searchable project table. 43 of the GLC projects are in Indiana.

When county or congressional district boundaries are turned on, the map shows what county a project is located in or which Member of Congress represents the district and the percentage of the district that lies within the Great Lakes Basin. The map also shows separate contaminated sediment cleanups implemented under the Great Lakes Legacy Act program.

The website does not include some projects focused on research, monitoring, public education and other broad-scale activities not focused at a specific site. The Commission has also produced state-specific factsheets showcasing how the GLRI is benefiting each of the eight Great Lakes states.

You can find the interactive map here.

More on SB 373: House Judiciary Committee Acknowledges First Amendment Issues

Jeff Lorenzo — Thu, 11 Apr 2013 07:30:00 -0500

The House Judiciary Committee tacitly acknowledged first amendment concerns about SB 373.

SB 373, originally an attempt to create criminal penalties for unauthorized videotaping of farm operations, has been assigned to the House Judiciary Committee. The committee held a hearing on Monday, April 8 and the bill underwent some major editing. It no longer mentions videotaping.

The Committee passed the bill and left in place language, inserted by the House Ag Committee, that makes those who falsify job applications in order to obtain employment on a farm for the purpose of photographing or videotaping that farm eligible for prosecution.

Some of the teeth have been taken out of the legislation, but overall it still offers Indiana farmers and farm organizations some protection from the media and activists. But it does it through the enhancement of trespass concepts.

Indiana Farm Bureau’s Bob Kraft says “At the end of the day, we are still confident we will have a bill that provides additional protection for Indiana agriculture from those who slip onto farms surreptitiously for the purpose of defaming or harming the operation.”

But it differs significantly from the originally drafted bill. Not quite what the major meat producers and farm organizations were looking for.

SB 373: Criminalizing Unauthorized Videotaping Down Home on the Farm

Jeff Lorenzo — Wed, 10 Apr 2013 07:30:00 -0500

SB 373 is a bill designed to protect Indiana farmers from unauthorized videotaping on their farms. But it is running into stiff opposition at the Statehouse. The authors of the bill are Sen. Eric Holdman, (R-Markle) and, (Rep. Bill Friend, R-Macy).

The bill would make it a misdemeanor for an individual to photograph or videotape what happens on a farm without the owner’s permission. In addition, it states that this punishment only occurs if the individual has the intent to harm the relationship between that farm and its customers. The bill further stipulates that, if the individual taking the photos or videos turns them over to the authorities within 48 hours as part of a complaint of animal abuse or other illegal actions, the person will not be charged. Only if the individual obtains the images without permission and releases them to the public with the intent of negatively impacting that operation, would the person be charged.

It passed easily through the Senate. SB 373 drew a standing room only crowd before the House Ag Committee two weeks ago. Media, environmental, and animal activist groups testified against the bill. Indiana media organizations expressed strong disapproval of the bill that they claim is in violation of their First Amendment rights. The media’s position is that the bill would inhibit undercover investigations of farms that are necessary because government regulatory agencies are not capable of overseeing agricultural operations.

The Indiana Broadcasters Association and Hoosier Press Association maintain the bill is unconstitutional. Other organizations against SB 373 include the Humane Society of the United States, Hoosier Environmental Council, Citizens Action Coalition, and IN CAFO Watch.

And as you would expect, the bill is supported by many farm orgaizations and food producers.

Decker v. Northwest Environmental Defense: Discharges of Stormwater Runoff from Logging Roads

Jeff Lorenzo — Tue, 09 Apr 2013 08:00:00 -0500

I wrote about this case in an earlier post.

Decker involves a challenge to a Ninth Circuit ruling that runoff from logging roads into ditches requires a stormwater permit. Petitioners argue that the Ninth Circuit should not have held that channeled forest road runoff is subject to NPDES permitting. Because the EPA interpreted the definition of point source, petitioners argue that the courts accord Chevron deference to the agency's interpretation.

According the NEDC, the EPA’s interpretation of its regulations is either (a) inconsistent with the text of the regulation, or (b) the regulation would be better read to require permits. Relying on §1365 of the CWA, the NEDC brought a citizen’s suit in an attempt to eliminate the exemption from the permiting process..

The EPA has previously interpreted the CWA as exempting certain logging activities that cause polluted water to run off of forest roads and into ditches, culverts, or pipes from the permitting process. The Petitioners argue that a citizen's lawsuit was impermissible in this case because of §1369 of the CWA. The parties also do not agree on the level of deference that the EPA should have been given in interpreting its regulations. Furthermore, the NEDC takes issue with the way EPA interprets several key phrases in the CWA, which affects the substance of the EPA’s decision.

Since passage of the Clean Water Act, the EPA has considered runoff of rain from forest roads - whether channeled or not - to fall outside the scope of the NPDES process, and not to require a permit as a point source discharge of pollutants. Under a rule first promulgated in 1976, the EPA consistently has defined as non-point source activities forest road construction and maintenance from which natural runoff results. And in regulating stormwater discharges under 1987 amendments to the Act, the EPA again expressly excluded runoff from forest roads. In consequence, forest road runoff long has been regulated as a nonpoint source using best management practices, like those imposed by the State of Oregon on the roads at issue here.

The EPA’s consistent interpretation of more than 35 years has survived proposed regulatory revision and legal challenge, and repeatedly has been endorsed by the United States in briefs and agency publications.

The Ninth Circuit rejected the EPA’s longstanding interpretation. This conflicts with other circuits and gives no deference to the EPA in interpreting the statute and regulations it has expertise in.

The Superme Court held.

Challenges to EPA action under 33 U.S.C. §1369(b) are not a jurisdictional bar, and does not prevent the District Court from entertaining a citizen's suit under §1365.

EPA's recent amendment to the Industrial Stormwater Rule did not moot the issue of the lawsuit. The controversy continues when respondent may face penalties for past activities under the old rule even if the new rule provides that a NPDES permit is not applicable.

The Court found that the pre-amendment version of the Industrial Stormwater Rule, as construed by EPA, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme and that the regulation is a reasonable interpretation of the statutory term “associated with industrial activity,” §1342(p)(2)(B).

When an agency interprets its own regulation, the Court, as a general rule, defers to it unless that interpretation is plainly erroneous or inconsistent with the regulation. The Court also found that another reason to accord Auer deference (519 U.S. 452, 461) to the EPA’s interpretation is that there is no indication that EPA's current view is a change from prior practice or is a post hoc justification adopted in response to litigation. The conclusions of EPA as to logging roads has been consistent over time.

The Court also noted that the CWA gives EPA discretion in the area of stormwater runoff, and EPA could have reasonably concluded that further federal regulation would be duplicative or counter-productive in light of Oregon’s extensive rules on the subject.

To the Court, the key to the case appears to be the language of §1342(p)(2)(B), associated with industrial activity. It held that it was reasonable for EPA to conclude that the conveyances at issue are “directly related” only to the harvesting of raw materials, rather than to “manufacturing, processing, or raw materials storage areas at an industrial plant.” 40 C.F.R. §122.26(b)(14).

Consent Decree Lodged: Settlement between USEPA and Dominion Energy

Jeff Lorenzo — Mon, 08 Apr 2013 10:00:00 -0500

The Department of Justice entered into a Consent Decree with Dominion Energy requiring the company to pay a $3.4 million civil penalty and spend nearly $9.8 million on environmental mitigation projects to resolve Clean Air Act (CAA) violations.

2348294-v1 Dominion Energy.PDF

The settlement is designed to result in reductions of nitrogen oxides, sulfur dioxide, and particulate matter by more than 70,000 tons per year, across three of the utility’s coal-fired power plants, including the State Line plant near Hammond.

Under the settlement, Dominion must install or upgrade pollution control technology on two plants, and permanently retire a third plant. Dominion will be required to continuously operate the new and existing pollution controls, and will be required to comply with stringent emission rates and annual tonnage limitations.

The actions taken by Dominion to comply with this settlement will result in annual reductions at the Brayon Point and Kincaid plants of sulfur dioxide (SO₂) and nitrogen oxides (NO_x) emissions by 52,000 tons from 2010 levels. The retirement of the State Line plant will result in an additional reduction of 18,000 tons of SO₂ and NO_x.

The settlement also requires Dominion to spend $9.75 million on projects that will benefit the environment and human health in communities located near the Dominion facilities. A total of $9 million will be spent on such projects as 1) wood stove changeouts, including $2 million for changeouts in southeastern Massachusetts, Rhode Island, and eastern Connecticut; 2) switcher locomotive idle reduction for Chicago rail yards, 3) land acquisition and restoration adjacent to, or near, the Indiana Dunes National Lakeshore, 4) energy efficiency and geothermal/solar projects for local schools and food banks, and 5) clean diesel engine retrofits for municipalities and school districts. Dominion must also pay a total of $750,000 to the United States Forest Service and the National Park Service, to be used on projects to address the damage done from Dominion’s alleged excess emissions.

Reducing air pollution from the largest sources of emissions, including coal-fired power plants, is one of EPA’s National Enforcement Initiatives for 2011-2013. SO₂ and NO_x are two key pollutants emitted from power plants.

The settlement was lodged in the U.S. District Court for the Central District of Illinois. There is a 30-day public comment period and final court approval.

See www.epa.gov/enforcement/air/cases/dominionenergy.html

Monsanto v. Bowman: Supremes to Decide on Patent Exhaustion

Jeff Lorenzo — Sun, 07 Apr 2013 08:00:00 -0500

The United States Supreme Court recently heard oral arguments in the case opposing a farmer (little guy) against Monsanto (big guy) on the issue of patent exhaustion in patented seeds. The Supreme Court is expected to reach a decision sometime this spring.

The case revolves around the issue of patent exhaustion. The issue that the US Supreme Court has to decide is, “Whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies?”

Vernon Hugh Bowman v. Monsanto Company was originally brought by Monsanto, which sued the farmer for infringement of its patented technology. Bowman acquired a mix of commodity soybeans seeds from a local grain elevator containing Monsanto patented seeds. After spraying his field with the herbicide glyphosate to which Monsanto “Roundup-ready seeds” are resistant, he harvested the seeds and replanted some of them, thus infringing the patent, according to Monsanto. Bowman also bought high quality seeds every year from Pioneer Hi-Bred Limited, which commercializes Monsanto patented soybeans according to its amicus curiae brief.

The Supreme Court took the case after a ruling by the Court of Appeals for the Federal Circuit, which ruled in favor of Monsanto. The patents in the technology expire in 2014.

The biotech industry is concerned about a weakening of IP protection if the Supreme Court rules in favor of the farmer.

At the heart of the problem are products that are self-replicating, such as seeds. The industry is also worried about other areas such as vaccines and stem cells, some even introducing the idea that the case could have possible repercussions on copyright law.

The Bowman v. Monsanto case is interesting because it lies at the intersection between patent law which provides exclusionary right to a patent owner to keep others from making, using or selling the patented technology, and the access to those agricultural products. It is a difficult question because of those competing dynamics.”

An audio recording and a transcript of the hearing is available on the Supreme Court website. The SCOTUSblog summary is here.

Indiana Is Now Ranked 20th Among States Generating Electricity from Wind Power

Jeff Lorenzo — Wed, 20 Mar 2013 09:00:00 -0500

In May 2011, Indiana enacted a voluntary Clean Energy Portfolio Standard (CPS), that sets a goal of 10 percent of the state’s electric generation to come from clean energy sources by 2025. At this point, with 12 years to go, we are at 2.8% from wind power - ranking us 20th in the nation. We have a way to go.

Indiana's CPS goals are part of the national program defined by the Department of Energy.

In a total of 14 states, American wind energy provides 5 percent or more of generation. But in 2012, Iowa and South Dakota reached generation levels greater than 20 percent across their states.

Overall, Texas uses the most electricity and relied on wind energy for 9.2% of its electrical generation last year. Texas now uses more wind power than any other state, with more than 12,000 megawatts installed – over a fifth of the 60,000 MW in the United States at the end of last year.

The U.S. wind energy industry had its strongest year ever in 2012, installing over 13,000 MW of electric generating capacity. The industry experienced 17 percent growth last year, and produced more than 10 percent of the electricity in nine states, up from five states in 2011.

Here's a chart from the American Wind Energy Association:

Percent of electric power from wind generation by state/Top 20 States during 2012

Rank	State	% Wind Generation in 2012	Rank	State	% Wind Generation in 2012
1	Iowa	24.5%	11	Texas	7.4%
2	South Dakota	23.9%	12	New Mexico	6.1%
3	North Dakota	14.7%	13	Maine	5.9%
4	Minnesota	14.3%	14	Washington	5.8%
5	Kansas	11.4%	15	California	4.9%
6	Colorado	11.3%	16	Montana	4.5%
7	Idaho	11.3%	17	Illinois	3.9%
8	Oklahoma	10.5%	18	Nebraska	3.7%
9	Oregon	10.0%	19	Hawaii	3.6%
10	Wyoming	8.8%	20	Indiana	2.8%

Drought Conditions in Indiana End - For the Time Being

Jeff Lorenzo — Fri, 15 Mar 2013 19:00:00 -0500

Indiana, one of the eastern Corn Belt states also including Ohio, and southern Illinois, is now officially out of the drought; however much of the western Corn Belt is still in a drought, according to the March 5 Drought Monitor.

As the map shows, Iowa, southern Minnesota and most of the Western Corn Belt remain in drought. This relates to how analysts deal with winter snowfall. Significant precipitation has fallen across Minnesota and Wisconsin during the past 90 days, but most of it is sitting on top of the frozen ground, locked away in the snowpack, the March 5 report said. Accordingly, no changes were made across the region.

With the eastern Corn Belt officially out of drought and the outlook looking better for the rest of the Corn Belt, it should confirm farmers’ hopes for a better year.

The US Seasonal Drought Outlook's March 7 outlook through the end of May is showing expected improvement in the eastern third of Iowa and Minnesota, western Wisconsin and northern Illinois.

The western half of Minnesota and Iowa along with North Dakota, South Dakota, Nebraska and western Missouri are classified as “drought ongoing, some improvement,” while Kansas down to Texas and states further west are expected to see persistent or intensifying drought conditions.

For the time being, Indiana has returned to its normal soil moisture content. But we see a great many farmers spending heavily on irrigation systems — investments fueled by high grain prices and land values of $8,000 to $11,000 per acre.

Indiana's Endangered Pastimes: Hunting, Fishing, and Farming

Jeff Lorenzo — Wed, 13 Mar 2013 09:30:00 -0500

In yesterday's post, we looked at legislation that is most likely to remain dormant in this session.

But one piece of legislation is moving along quite nicely, thank you very much - SJR 7. Addressing that highly contested issue - the right of Hoosiers to hunt, fish, and farm - SJR 7 is designed to take a proposed constitutional amendment to the electorate.

For most of us who hunt, fish, or farm - we didn't know we had an issue, let alone a controversial one. No one that I know of is threatening to take away our right to hunt, fish, or farm. And not likely to do so.

This is the language the General Assembly proposes:

"The people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, poultry, or dairy products, which is a valued part of our heritage and shall be forever preserved for the public good, subject only to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly. Hunting and fishing shall be the preferred means of managing and controlling wildlife. This section shall not be construed to limit the application of any provision of law relating to trespass or property rights."

Pandering to one constituency or another is nothing new to the Indiana General Assembly, or any other state's legislature from what I can tell, but creating a constitutional amendment to serve specific industries takes this to a new level - one fraught with difficult constitutional issues.

I'll have more on this topic in future posts.

Indiana General Assembly: Pending Legislation on Life Support

Jeff Lorenzo — Tue, 12 Mar 2013 10:00:00 -0500

The following bills were introduced in the House or Senate at the start of the session.

HB 1269 -- Environmental coverage.

HB 1202 -- Lawn fertilizers containing phosphorus.

HB 1489 -- Grants for green industry jobs.

HB 1514 -- Insurance for environmental claims.

SB 0358 -- Regulation of sewage backflow.

HB 1209 -- Environmental review of hydraulic fracturing.

HB 1021 -- Prohibition against Agenda 21.

SB 0157 -- Confined feeding operations and CAFOs.

HB 1475 -- Environmental rules.

SB 0113 -- Local air pollution control agency contracts.

Each was referred to one committee or another in early January. Sort of like Purgatory. You wait, you wait, you hope for a good outcome. But not likely. Unless the language resurfaces in other legislation, these bills are destined to move no further. Salvation is unlikely.