Critics question legislative process for two environmental Senate bills

Duke Energy receives a quick bailout; wetlands targeted

By: - March 24, 2023 6:45 am

Consumer advocates decried the legislative process for two Senate bills this week. (Photo courtesy of Michigan Advance)

Environmental activists decried the legislative process for two bills Thursday, saying they clearly benefited some of the state’s most powerful while harming the average Hoosier. 

“It’s shocking the extent to which the monied special interests are controlling the legislative process right now and dictating the outcomes,” said Kerwin Olson, with the Citizens Action Coalition. “We are allowing the investor-owned utilities and others to run amuck at the Statehouse, all to the detriment of consumers, our environment and the public interest in general.”

On Wednesday, a House environmental committee opted to add controversial wetlands language to a Senate bill on sewage systems. Because the topic was unrelated and no notice was given, opponents had limited opportunity to give public testimony — a critical part of the legislative process. 

Meanwhile, the state’s biggest utility – and frequent campaign donor – Duke Energy already called upon a court to review a crucial ruling less than 24 hours after the House passed and Gov. Eric Holcomb signed a bill to recover “unexpected” additional costs from customers.

What happened with wetlands?

The original Senate Bill 414 detailed the storage of residential sewage but Wednesday’s wetlands addition closely mirrors a 2021 bill that activated environmental groups, who rallied to defeat the proposal.

The 2021 bill had to be watered down after it attempted to narrow the definition of wetlands and reduced protections to the resource, prompting even state regulatory officials to push back.

Wetlands at the Crooked Lake Nature Preserve. (From the Indiana Department of Natural Resources)

But Wednesday’s amendment came “so late” that Democrats said they didn’t have time to review it, despite its controversial nature – as detailed in a story from the Indianapolis Business Journal.

Shortly after the meeting concluded, Democrats on the committee fired back and criticized the move in a joint statement. In particular, they targeted Rep. Doug Miller, R-Elkhart, who offered the amendment in committee. He is a member of the Indiana Builders Association. Builders and developers previously supported bills to decrease Indiana’s wetlands, which they say limit their construction abilities. 

“It’s clear Republicans are beholden to special interests and want to line their pockets no matter the cost,” the joint statement said. “They want to build, to enrich without care for drinking water quality, flood mitigation or critical wildlife habitat.. (and to) do this at the end of the legislative process so that that provision can pass through with little public input or oversight.”

The amendment also runs counter to findings from the Indiana Wetlands Task Force Final Report, which the legislature convened. That group found the following:

“Despite the diversity of views and perspectives on the task force there is a consensus that isolated wetlands do need prioritization at the state level. The functions and values that wetlands provide are clear and significant, and Indiana is at a point where the cumulative loss of wetlands is having a measurable negative impact on residents, particularly from a water quality and flooding standpoint.

“Members heard professional and public testimony on the real-life impacts of increased frequency and levels of flooding and the loss of agricultural income, damage to infrastructure, and significant economic hardship. The data and scientific evidence presented was compelling and concerning.”

How is this supposed to go?

For a typical bill, the legislative process is designed to allow for public testimony so lawmakers can weigh how their constituents might react. A notice for a hearing on a bill is posting giving those interested in a specific topic ample time to prepare to appear and testify. But in this case the amendment wasn’t publicly available, meaning there was no notice to be present.

Sen Pro Tem Rodric Bray, R-Martinsville, said he couldn’t comment on the specific amendment because he hadn’t read it but that heftier revisions should be introduced in time for public consideration.

gop leadership
House Speaker Todd Huston, right, and Senate President Pro Tem Rodric Bray share a laugh before a May legislative meeting. (Photo by Monroe Bush for Indiana Capital Chronicle)

“From time to time, committees will make an amendment as they see fit. What you hope to have is that more substantive amendments are things that are in writing,” Bray said Thursday. “I recognize that we all work under a timeframe here so sometimes the chairman might feel a need to move something more quickly.”

Bray noted that the bill, which just passed committee, will still need a second and third reading in the House as well as a concurrence from both chambers before heading to the governor’s desk.

“”It’s not as though the process won’t touch it at all because it certainly will,” Bray said. 

House Speaker Todd Huston, R-Fishers, said he didn’t know about the lack of public hearing and didn’t comment on the process. 

“I heard an amendment went in, I didn’t hear about how the process went,” Huston said. “I’ll see what it looks like and then we’ll have an opportunity on second (reading) to hear more about it.”

What’s up with the other Senate bill?

Another bill making waves among environmentalists and consumer advocates is Senate Bill 9, which was changed to allow for utilities to recover “unexpected” additional costs from their customers. 

When Duke Energy paid more than it budgeted for during coal ash cleanup when trying to meet new federal regulations, it asked the Indiana Utility Regulatory Commission (IURC) to raise its rates for 2019.

The agency approved the increase but the state Supreme Court rejected it, saying it was “retroactive ratemaking” and the utility lost $212 million.

Testimony explicitly named Duke Energy, which serves approximately 890,000 Hoosiers, as an example of why utilities should be able to push these costs onto ratepayers.

Under the new law, which originally was designed to slow the retirement of coal plants, the IURC can approve retroactive rate increases.

On Thursday, less than 24 hours after Holcomb signed the bill, Duke Energy filed a petition for a rehearing of the Supreme Court case, “in light of the Legislature’s guidance.”

On Twitter, Citizens Action Coalition Program Director Ben Inskeep called the bill “Another blank check to utilities and more rate increases to consumers.” 

Searching the Indiana Election Division’s campaign finance portal for Duke Energy’s political contributions prior to Jan. 1, 2021 provided too many results and resulted in an error. Since that date, the utility has contributed $163,400 to various candidates, including bill authors Sen. Jean Leising and Sen. Eric Koch as well as bill sponsors Rep. Ed Soliday and Rep. Ethan Manning.

Contributions went to a bipartisan slate of candidates in both the House and Senate as well as past donations to politicos like Holcomb, gubernatorial candidate Lt. Gov. Suzanne Crouch and Attorney General Todd Rokita.

Petition for Rehearing


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Whitney Downard
Whitney Downard

A native of upstate New York, Whitney previously covered statehouse politics for CNHI’s nine Indiana papers, focusing on long-term healthcare facilities and local government. Prior to her foray into Indiana politics, she worked as a general assignment reporter for The Meridian Star in Meridian, Mississippi. Whitney is a graduate of St. Bonaventure University (#GoBonnies!), a community theater enthusiast and cat mom.