Despite meeting the qualifications for a valid petition as dictated by Indiana law, board chair Beverly Gard felt the petition was “devoid of merit” and decided not to take action on the request. Even when board member Tom Anderson said he felt the petition did have merit and offered a motion to grant the hearing, his motion found no second and died as quickly as it was born.
“When we submitted the petition to the ERB in June,” said Rosemary Spalding, President of Earth Charter Indiana. “It was inconceivable to us that ERB members could conclude that ECI’s petition is ‘plainly devoid of merit.’”
So what does “devoid of merit” mean exactly?
“Devoid of merit means devoid of merit,” says William Weeks, Director of the Conservation Law Center. “And it seems to me the proposal that is in front of the Environmental Rules Board does meet that standard and that accordingly it ought to set the proposal for a hearing.”
But Gard says the proposal didn’t have merit in the context of the board. “It is out of our jurisdiction,” says Gard. “The Rules Board’s responsibility is to implement public policy that has been established by the state legislature or the EPA (Environmental Protection Agency). The Board establishes the rules to implement that policy, but we don’t make policy itself.”
But Weeks disagrees.
“The (Indiana) Code is clear that rule-making can be a policy making endeavor, bounded by the authority that the legislature prescribes for the Board,” stated Weeks in his letter to the Rules Board, dated November 10. “The ERB has not only the authority, but a statutory obligation under IC 13-13-8-5 to ‘adopt rules consistent with the purposes of this title.’”
Indiana Code Sec. 13-14-8-5 allows a citizen or group to petition the board for the adoption of a new rule. The law requires the citizen or group to acquire at least 200 petition signatures. Unless the petition is “completely devoid of merit,” or in other words is a totally crazy idea or not an issue the board would even deal with, a hearing is granted to discuss the petition.
ECI and Youth Power Indiana began their proposal process in the spring of this year. Their request to the Environmental Rules Board asked for the adoption of a rule “setting forth the process for and requiring the development and implementation of a comprehensive, state-wide Climate Action Plan.” The necessary signatures were acquired through an online petition drive via Change.org. ECI officials researched and put together a statement of reasons detailing the reality of global climate change; its effects on health, quality of life, and economic viability; and how a Climate Action Plan can be an effective mechanism for responding to climate change. The proposal even included a statement of support from Carmel Mayor Jim Brainard.
Rosemary Spaulding presented the proposal request during the open forum segment of the Environmental Rules Board Meeting on June 11, 2014. As expected, the matter was tabled for formal discussion until the September 10 meeting giving ERB members time to review the notebook of materials laid before them. When the Environmental Rules Board met in September, they had two citizen petition to consider. Nancy King, Branch Chief of the Rules Development Branch Office of Legal Counsel for the Indiana Department of Environmental Management explained to the board, at their request, her interpretation of the “not plainly devoid of merit” standard that the board had to consider in order to accept the petitions and grant a hearing. King’s explanation to the board (according to the meeting summary created from IDEM staff notes) stated it was the decision of the board to determine of the petition has merit, if it is of interest to the board, or if the board wants to hear more information from the people presenting the proposal.
The board didn’t take up any of the three choices presented by Ms. King, but instead stated they felt the proposal was outside of the board’s jurisdiction.
Stunned by the board’s non-action, Earth Charter Indiana went to the Conservation Law Center to double-check to see if they were in the wrong. Weeks, says ECI was right and the ERB was incorrect in their assessment.
“This statute is meant to encourage the board to hear public proposals for rules,” says Weeks. “I know that it was meant to do that because it sets a very, very low standard for board holding a hearing for a public proposal for a rule.”
Weeks argued that point and others in a letter to every member of the ERB as well as in person when ECI went before the board during the open forum period again during the November 12 meeting.
“Holding a hearing doesn’t mean that you agree with the proposal, it doesn’t mean that you think it’s wise,” says Weeks. “You don’t know anything until you hold the hearing. But the law says you’re supposed to hold a hearing on any proposal that’s not plainly devoid of merit.”
Several supporters of the proposal attended the November ERB meeting in the hopes of persuading the board to change their position and grant the hearing. Students from Project Libertas, an independent private school in Indianapolis, attended the meeting and two student members of Youth Power Indiana offered testimony on why they felt Indiana needed a Climate Action Plan.
“Climate change is real and something needs to be done now,” says 13-year-old Cora, an eighth grade student at Eastwood Middle School. “Recycling isn’t enough anymore.”
Cora says the board meeting was disappointing and testifying was rough but she’s glad she did it.
“After the meeting, none of the board members would look us in the eye. They just looked down and quickly walked past us,” says Cora. “To me, if you can’t confront someone, then you didn’t make the right choice and deep down you know it.”
Gard says she suggested Earth Charter Indiana find at least one Republican and one Democrat in both the House and Senate to draft and sponsor a bill in the General Assembly to create that policy. Once upon a time, Gard herself would have been the one to approach with such a proposal. Gard spent over 20 years in the Indiana State Senate representing the 28th District. At the time of her retirement, Gard was the chair of the Senate Energy and Environmental Affairs Committee.
According to Barry Sneed, public information officer for the Indiana Department of Environmental Management (IDEM), the legal staff at IDEM believes neither IDEM nor the ERB have the authority to do what ECI’s petition asked. Their interpretation of the petition was for the ERB to put together some sort of panel to come up with a proposed climate action plan and somehow implement it. However, according to Indiana Code, an independent third party not employed by the state is supposed to be appointed to the ERB as Legal Counsel with the specific task of advising the board on legal matters and its legal responsibility. That post is currently vacant.
According to Weeks’ interpretation of the law, a hearing should have been held in order for all of that to be hashed out.
“Given that thirty-four other states have adopted and/or implemented climate action plans,” noted ECI Executive Director Jim Poyser, “we believed that our proposal was reasonable and very well-supported. In addition, we had well over 200 signatures, along with almost 90 signed statements of support from scientists, doctors, educators, attorneys, parents, and even an Indiana mayor.”
Poyser says ECI is looking into possible legal options in regards to the ERB’s failure to act in response to the petition and to hold a public hearing.