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4 Ways the Supreme Court Made It Harder to Protect the Environment
By limiting the power of federal agencies and extending the statute of limitations for challenging agency actions, these rulings introduce uncertainty and could provide an avenue for winding back regulations.
Aug 15, 2024
The U.S. Supreme Court recently issued decisions in four cases that could profoundly weaken the administrative state, foreshadowing widespread dysfunction for federal agencies and the vast regulatory regimes they oversee, including federal protections safeguarding public health and the environment.
The U.S. federal government has more than 439 agencies and subagencies, each with its own sphere of responsibility and expertise. These agencies are responsible for implementing, applying, and enforcing a wide array of regulations across areas such as air quality, clean drinking water, education, energy, financial markets, food safety, and healthcare—regulations that greatly impact American lives.
These Supreme Court decisions will undoubtedly be used to restrict the ability of federal agencies to interpret, apply, and enforce the laws and regulations crucial to the real-life, day-to-day implementation of our federal government’s most important functions.
Supreme Court Decisions Impacting Federal Agencies
The Supreme Court issued four decisions this past term (2023-2024) that challenge the authority of federal agencies:
- Loper Bright Enterprises v. Raimondo: Overturned the longstanding Chevron doctrine, which gave deference to federal agencies. Courts will no longer be required to defer to the specialized technical expertise of federal agencies and their reasonable interpretation of ambiguous statutory terms or unclear definitions provided by Congress.
- SEC v. Jarkesy: Ruled that the Securities and Exchange Commission (SEC) must provide defendants with a jury trial in enforcement actions seeking civil penalties, limiting the agency’s anti-fraud enforcement capabilities.
- Corner Post v. Federal Reserve: Extends the statute of limitations for challenges to agency actions, leading to prolonged legal uncertainty, even for decades-old regulations.
- Ohio v. EPA: Halted enforcement of the Environmental Protection Agency’s (EPA) “Good Neighbor” rule—which aimed to implement ozone air pollution standards—because the agency had not provided an adequate explanation of its plan. This case signals the Supreme Court’s willingness to hinder federal agency efforts to regulate pollution on a nationwide basis.
Chevron Deference and Its Demise
The advent of the doctrine of Chevron deference, established in 1984 through Chevron. v. NRDC, and its demise in Loper Bright Enterprises v. Raimondo both concern environmental regulation.
Chevron v. NRDC addressed the EPA’s interpretation and application of a regulation promulgated under the Clean Air Act. The Supreme Court upheld the EPA’s interpretation of an ambiguous provision of the law and, in doing so, held that courts must defer to an agency’s reasonable interpretation of ambiguous statutory terms—enter “Chevron deference.” For the past 40 years, Chevron deference has been the cornerstone of administrative law, and Chevron v. NRDC has been cited no less than 18,000 times in other court decisions.
Without Chevron deference, the Supreme Court will have the final say over policy questions and, in the words of Justice Kagan, becomes the country’s self-appointed “administrative czar.”
The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo abruptly ended Chevron deference, significantly shifting power from federal agencies to the judiciary. The case concerned the regulation of the commercial fishing of overfished Atlantic herring pursuant to the Magnuson-Stevens Fishery Conservation and Management Act. The Supreme Court considered the narrow question of whether commercial fishers of Atlantic herring can be made to shoulder the cost of hosting government fisheries monitors on board their vessels.
In its decision, the Supreme Court ruled that courts—not agencies—are to determine all questions of law, including the single best interpretation of ambiguous terms, even if those terms are scientific and technical. Justice Elena Kagan’s dissent warned that the majority decision would leave courts to determine questions far outside their expertise, including issues of environmental protection, such as how to define a “distinct population segment” of endangered “vertebrate fish or wildlife” pursuant to the Endangered Species Act.
Shifts in Power and Ongoing Impact
The removal of Chevron deference fundamentally shifts power from Congress and the executive to the judicial branch. By upsetting the long-held equilibrium stewarded by the Chevron doctrine, Loper Bright Enterprises v. Raimondo will restrict the federal government’s operations and hinder environmental regulation.
Presidents depend on the administrative state to apply their policy preferences, and Congress enacts statutes with the understanding that agencies will utilize their experience and expertise to reasonably interpret ambiguities. Without Chevron deference, the Supreme Court will have the final say over policy questions and, in the words of Justice Kagan, becomes the country’s self-appointed “administrative czar.”
Loper Bright Enterprises v. Raimondo is already having a profound impact: As of August 5, 2024, 59 courts have cited the decision, and litigants in 120 other cases have cited it in court filings. The decision is being used to stymie ESG investment regulation, reopen federal waters after an emergency closure to protect North Atlantic right whales, contest solar power facility certifications as a qualifying source of alternative energy, challenge requirements for water heaters to meet efficiency standards, and defend against the use of a tire manufacturing chemical whose runoff caused a “taking” of protected fish species.
Not only does Loper Bright Enterprises v. Raimondo present a serious obstacle to the application and interpretation of federal environmental protection rules, but, together with SEC v. Jarkesy, it will also limit the ability of agencies to enforce those rules.
Climate Disclosure Rules and ESG Investing after Loper Bright Enterprises v. Raimondo and SEC v. Jarkesy
Loper Bright Enterprises v. Raimondo and SEC v. Jarkesy will influence the ongoing challenge to the SEC’s Climate Disclosure Rules, currently pending before the Eighth Circuit Court of Appeals. The SEC’s Climate Disclosure Rules—albeit insipid—require larger companies to disclose material Scope 1 (direct) and Scope 2 (indirect) emissions information. These rules have been challenged by 25 states, two Big Oil trade groups, and the U.S. Chamber of Commerce.
The primary basis for the challenge to the rules is that it represents an unauthorized expansion of the SEC’s statutory rulemaking authority, making it ultra vires (beyond its legal powers). In overturning Chevron deference, the Supreme Court held that rulemaking agencies, such as the SEC, must demonstrate unambiguous congressional authority to create a rule, increasing the burden on these administrative agencies to prove they have the authority to implement such regulations. This poses a problem for the SEC, which adopted the Climate Disclosure Rules under the investor protection legislation of the Securities Act and the Securities Exchange Act. The SEC must demonstrate that it has unambiguous statutory authority to make climate-related regulations under these laws.
The EPA is one such agency that, until SEC v. Jarkesy, could impose civil penalties in administrative proceedings when environmental protection regulations have been violated, but it now faces limitations due to the decision.
Even if the Eighth Circuit upholds the Climate Disclosure Rules, their enforcement faces additional obstacles due to SEC v. Jarkesy. Failure to disclose material Scope 1 or 2 emissions could violate the Climate Disclosure Rules and potentially constitute securities fraud under SEC Rule 10b-5. The SEC can seek civil penalties for securities fraud, and since the Dodd-Frank Act, it could do so in the agency’s administrative courts.
In the SEC v. Jarkesy case, the SEC brought an enforcement action against investment adviser George Jarkesy, Jr. for securities fraud, resulting in a civil penalty of $300,000 and a disgorgement of $685,000 imposed by an administrative law judge. However, the Supreme Court ruled that the U.S. Constitution’s Seventh Amendment entitles defendants to jury trials for any statutory claim that is legal in nature—even those brought by the government—and impacts the defendants’ private rights. The SEC v. Jarkesy decision significantly limits the SEC’s ability to combat securities fraud involving misleading and deceptive climate disclosures by removing the option of administrative proceedings and requiring enforcement actions be litigated through the lengthy and expensive jury trial process.
The decision seriously undermines the ability of not just the SEC to bring enforcement actions, but, as noted by Justice Sonia Sotomayor in her dissent, SEC v. Jarkesy will also restrict the enforcement capabilities of over two dozen other federal agencies that can impose civil penalties in administrative proceedings. The EPA is one such agency that, until SEC v. Jarkesy, could impose civil penalties in administrative proceedings when environmental protection regulations have been violated, but it now faces limitations due to the decision.
The Last Nail in the Coffin? An Extended Statute of Limitations for Challenging Agency Rules
The Administrative Procedure Act provides that a party has six years to challenge an agency regulation, and it was typically presumed that the six-year limitation began to run when the agency issued the regulation. However, in Corner Post v. Federal Reserve, the Supreme Court held that the limitation period starts when the party challenging the rule is actually injured by it. Accordingly, instead of the clock starting at publication, it starts at a different time for each potential litigant.
This decision means that longstanding agency regulations may now be subject to challenges by parties who have only recently been impacted by the rule. The Corner Post v. Federal Reserve decision dramatically expands the universe of existing regulations vulnerable to legal challenges by eliminating existing time restrictions on when court challenges to regulations can be brought.
Corner Post v. Federal Reserve will precipitate legal uncertainty and undermine the predictability of the law and agency regulations.
Good Neighbors No More: Ohio v. EPA
While the focus has been on the above mentioned cases, another decision has received less attention but is just as significant for federal environmental regulation. Ohio v. EPA inhibits the EPA’s ability to regulate air pollution on a national basis.
Under the Clean Air Act’s “good neighbor” rule, the EPA required 23 states—under a single implementation plan—to reduce air pollution traveling to downwind states, thereby requiring big polluters in upwind states to reduce emissions.
In Ohio v. EPA, the Court provided a preview of the post-Chevron difficulties courts will confront in grappling with technical questions best left to agency experts.
The court’s majority recognized the harm that increased ozone levels can cause, including triggering and exacerbating health problems and damaging vegetation, but held that the plan was likely “arbitrary or capricious” because the EPA had not “offered a ‘satisfactory explanation for its action[,] including a rational connection between the facts found and the choice made.’” According to the majority, the EPA failed to explain how the plan’s cost thresholds and emission limits were impacted by the number of states included in the plan.
The court split five-four. Justice Amy Coney Barrett—a reliable member of the court’s conservative clique—dissented and observed:
Given the number of companies included and the timelines for review, the court’s injunction leaves large swaths of upwind states free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years…
An application for a stay was granted, pending the final determination of the merits of the case. Significantly, Justice Barrett noted that Ohio v. EPA is “fact-intensive and highly technical” and—somewhat at odds with the majority opinion she joined in Loper Bright Enterprises v. Raimondo—that the court “should proceed all the more cautiously in cases like this one with voluminous, technical records and thorny legal questions.”
Indeed, in Ohio v. EPA, the court provided a preview of the post-Chevron difficulties courts will confront in grappling with technical questions best left to agency experts. Justice Neil Gorsuch, the author of the majority opinion, demonstrated that judges are not best placed to determine highly technical non-legal questions: He was clearly confused about the pollutant in question. The original opinion referred to “nitrous oxide” (laughing gas) five times instead of “nitrogen oxide,” an air pollutant that the EPA’s policy aimed to reduce. After the error gained traction on social media, the court issued a corrected opinion.
Uncertainly for U.S. Environmental Regulations
The Loper Bright Enterprises v. Raimondo and SEC v. Jarkesy decisions mean that federal agencies will not receive deference in interpreting their enabling legislation and no longer have the ability to enforce those regulations before administrative law judges. After Corner Post v. Federal Reserve, it is unclear when—or if—agency regulations will be free from potential legal challenges. And, in Ohio v. EPA, the Supreme Court inhibited the EPA’s ability to regulate air pollution on a national basis.
These recent Supreme Court decisions represent a seismic shift in the regulatory landscape and pose a particular threat to the federal government’s environmental protection regime. By limiting the power of federal agencies and extending the statute of limitations for challenging agency actions, these rulings introduce significant uncertainty and could provide an avenue for winding back environmental regulations that are already on the books. The full impact of these decisions will unfold over time, but their immediate effect is a substantial weakening of federal regulatory power and a suite of new tools for those seeking to challenge federal regulation.
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Air Force Dodges PFAS Water Cleanup in Arizona, Citing Supreme Court Chevron Ruling
"The floodgate begins to open," said one observer. "The U.S. Air Force refuses to clean up their toxic chemical contamination citing the termination of the Chevron doctrine by the corrupt Supreme Court."
Aug 12, 2024
The United States Air Force has so far refused to comply with an Environmental Protection Agency order to develop a cleanup plan for drinking water in Tucson, Arizona, citing the U.S. Supreme Court's June ruling that overturned the Chevron doctrine, The Guardianreported Monday.
Air Force bases contributed to the contamination of the drinking water with toxic per- and polyfluoroalkyl substances (PFAS), often known as "forever chemicals" because they accumulate in the body, breaking down only very slowly. The compounds, which were introduced by chemical companies in the mid-20th century, are associated with a wide range of serious health conditions, including cancer.
In late May, the EPA ordered the Air Force and the Arizona Air National Guard to clean up the PFAS contamination of groundwater at a 10-square-mile site in Tucson, giving them 60 days to develop a plan.
In late June, the Supreme Court eliminated the Chevron doctrine, also called Chevron deference, which gave federal agencies latitude to interpret laws and establish regulations, and required judges to generally defer to their expert judgment. The landmark ruling, brought by the court's right-wing majority, cut away at the executive branch's ability to regulate pollution.
Progressive advocates warned that it would lead to corporate-backed legal challenges to environmental and health rules. As it turned out, corporations were not the only organizations ready to take advantage of the ruling. On July 18, the Air Force's lawyers wrote to the EPA arguing that the May order should be withdrawn due to the elimination of the Chevron doctrine; Arizona Public Media service AZPMreported that the Air Force formally requested that the order be dropped.
The Air Force's challenge is a unique one in that it pits one arm of the U.S. executive branch against another, and won't go to the courts, but both scientists and legal experts warned that it could be a sign of the hard-nosed approach that polluters could take following the Chevron ruling that favors them.
"The floodgate begins to open," Chris Nagano, a former scientist at the Center for Biological Diversity and the U.S. Fish and Wildlife Service, wrote on social media in response to The Guardian's article. "The U.S. Air Force refuses to clean up their toxic chemical contamination citing the termination of the Chevron doctrine by the corrupt Supreme Court. I thought the Air Force was supposed to protect the American People?"
Deborah Ann Sivas, an environmental law expert at Stanford Law School, told The Guardian that the new ruling shouldn't affect the EPA's order and the Air Force seemed to be seeking to expand its scope to block regulatory action.
"It's very odd," she said. "It feels almost like an intimidation tactic, but it will be interesting to see if others take this approach and it bleeds over."
Legal experts say that, despite the Air Force's claim, the Supreme Court's recent ruling pertaining to Chevron shouldn't affect the EPA's enforcement actions, such as the May order—it should only affect the agency's rule-making process, The Guardian reported.
The order called for the Air Force and the Arizona Air National Guard to establish a filtration system designed specifically to remove PFAS, the estimated cost of which would be $25 million, or 0.1% of the Air Force's annual budget, the newspaper reported.
The affected 10-square-mile site is beneath Tucson International Airport, Air Force Plant #44, and the Morris Air National Guard base. It's been known to be extraordinarily polluted since long before the presence of PFAS was found—in fact, it was designated a Superfund site in the 1980s due to the presence of contaminants from solvents and degreasers.
Since 2016, samples from the site's groundwater have shown extraordinarily high levels of PFAS—as much as 53,000 parts per trillion, when the allowable legal limit for drinking water is between just 4 and 10 ppt, depending on the type of PFAS. However, a series of measures, including filtration, water diversion, and the closing of wells, have been taken so that such contaminated water is not in the local drinking supply.
There was a close call in 2021 in which contaminated water nearly breached the Tucson water supply, the EPA's order says, and though the city's water is currently safe, the issue remains concerning for locals, USA Todayreported in June. It's also creates added costs.
"When we have an area where the water quality is impacted and we're not able to serve that to customers, that is an added cost. It really diminishes the resource that we have available," Natalie DeRoock, a spokesperson for Tucson Water, the local utility, told USA Today. DeRoock said that while Tucson pumps in some water from the Colorado River, it depends largely on groundwater, a finite resource.
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Be Afraid: Here’s What ALEC Is Cooking Up at Its 51st Annual Meeting
State lawmakers, right-wing operatives, and corporate lobbyists are descending on the Rocky Mountain state to vote on model policies and resolutions that impact the environment, education, elections, fundamental human rights, and more.
Jul 26, 2024
The American Legislative Exchange Council, or ALEC, is holding its 51st Annual Meeting in Denver this week at the four-star Hyatt Regency Denver at Colorado Convention Center. ALEC state lawmakers, right-wing operatives, and corporate lobbyists are descending on the Rocky Mountain state to hear presentations and vote on model policies and resolutions that impact the environment, education, elections, fundamental human rights, and more.
Colorado Gov. Jared Polis (D), Iowa Gov. Kim Reynolds (R), Oklahoma Gov. Kevin Stitt (R), Liberty Energy CEO Chris Wright, and GOP pollster Scott Rasmussen are slated to speak at the conference. Polis is the first high-profile Democrat to speak to the ALEC faithful in recent years.
The annual meeting officially kicked off Tuesday night with an anti-abortion “late night dessert and coffee reception” with national abortion ban proponent Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, and “pre-recorded remarks” from pollster Kellyanne Conway, former U.S. President Donald Trump’s former senior counselor, to coach legislators on “how to communicate” about abortion during this fall’s campaign season. ALEC plotted its post-Dobbs strategy at its annual meeting last summer, and at least 684 state lawmakers affiliated with the group have voted to prohibit abortion access, a Center for Media and Democracy (CMD) analysis found.
Tuesday morning, the “Christian ALEC” (officially the National Association of Christian Lawmakers)—which circulates anti-abortion model legislation among its members—hosted a prayer breakfast for attendees.
ALEC Ramps Up Its Election Work
In June 2021, ALEC CEO Lisa Nelson wrote in Real Clear Politics, “ALEC doesn’t have ‘template legislation’ on voting because ALEC doesn’t work on voting issues.” CMD exposed that claim as a lie, revealing a Council for National Policy meeting video where she described the work ALEC was doing on the issue in targeted states and admitted to outsourcing model voting legislation to the Honest Elections Project (HEP).
ALEC has held at least three voter suppression summits with HEP, a voter suppression project of Leonard Leo’s 85 Fund, and last summer passed a model bill pushed by HEP banning ranked choice voting, the process by which voters rank candidates in order of preference on their ballots rather than simply voting in favor of a single candidate.
This week, ALEC members will consider model policies that align with HEP priorities laid out in its 2024 “Safeguarding Our Elections” report: the Citizen Only Voting Amendment and Only Citizens Vote Model Policy. While the voting amendment is targeted at prohibiting municipalities from allowing noncitizens to vote in local elections, the model policy covers state and federal elections—even though it is already illegal for noncitizens to vote in either. That push is part of what The New York Timesdescribes as a wider GOP campaign designed to promote Trump’s baseless claims of widespread voter fraud and “echoes the racist ‘great replacement’ conspiracy theory.”
In January, the ostensibly “nonpartisan” ALEC announced that it is joining forces with Run GenZ to try to draw young voters to the GOP.
“In recent months, the specter of immigrants voting illegally in the U.S. has erupted into a leading election-year talking point for Republicans,” Politicoreported. Republican-controlled legislatures in Iowa, Kentucky, Missouri, North Carolina, Oklahoma, South Carolina, and Wisconsin have placed constitutional amendments to ban noncitizen voting on the ballot this November as a way of driving GOP turnout.
ALEC is also offering a workshop on the nonissue of noncitizens voting, called “States Must Do: Protecting the Vote.” The description of the training claims “the threat of noncitizen participation in our U.S. elections is real.”
ALEC may claim this, but the facts prove otherwise. “Every legitimate study ever done on the question shows that voting by noncitizens in state and federal elections is vanishingly rare,” the Brennan Center reported. As the Brennan Center points out, even the Charles Koch-founded and funded Cato Institute determined that “noncitizens don’t illegally vote in detectable numbers.”
Meeting attendees will also debate on whether to approve The School Board Election Date Act, which would politicize school board elections across the country by requiring candidates to indicate a “political party designation” beginning in 2026 and mandating that they coincide with November elections every four years. In its Safeguarding Our Elections report, HEP recommends consolidating school board election dates with general elections in November.
Another workshop, called “Foreign Influence in American Campaigns,” will consider “options” state lawmakers have to “prevent foreign influence on state campaigns.” In the same report, HEP advises lawmakers to “ban foreign influence in ballot measure campaigns.”
In January, the ostensibly “nonpartisan” ALEC announced that it is joining forces with Run GenZ to try to draw young voters to the GOP. At the meeting, ALEC members can attend a “Boomer to Zoomer: Run GenZ Informational Meeting” to learn more about the right-wing youth candidate training partnership.
ALEC Steps Up Attacks on Strategies to Address Unfolding Climate Emergency
Meeting attendees will once again consider a number of pro-fossil fuel and climate-harming policies at the meeting this week.
Since the summer of 2021, CMD has repeatedly documented ALEC’s consideration and promotion of multiple model bills punishing companies and public entities that embrace environmental, social, and governance factors (ESG) in their business and investing practices.
Consumers’ Research Executive Director Will Hild, an anti-ESG zealot, has become a regular speaker at ALEC meetings since it became a major sponsor, and ALEC has, in turn, promoted his attacks. Hild is again scheduled to speak at this week’s meeting and is likely the sponsor of the workshop, “America Runs on Energy: ESG and Grid Sustainability.” The description of the training claims that “activism in investing is far from new, but the push to give outsized importance to ESG scores has a deleterious effect on our nation’s power grid.” Of course, it mentions nothing about the unfolding climate crisis and its impact on the grid.
One bill, the Act to Define Clean Energy, would replace references to “renewable energy” with “clean energy,” so that “power generation supplied by nuclear fuel” can be promoted in green energy policies.
Model legislation up for a vote at the conference relates to the power grid. The Equitable Escalation of Electricity Demand Act, for example, blames rising electrical costs on electric vehicles (EVs) and Big Tech, and seeks to pass the increased costs on to EV owners and technology companies that manage large data centers.
Another model bill, the Electric Ratepayers Affordability and Reliability Advocacy Act, claims that consumer utility boards have been co-opted by “green energy” advocates and proposes the creation of a new statewide position, a “Ratepayer Affordability and Reliability Advocate” with the “singular mission” of advocating for “the most reliable, [lowest] cost form of electricity in a service area.”
ALEC members will also vote on a related bill, the Electricity Trajectory Management Act, which would stop the decommissioning of power plants that use coal, natural gas, water, or nuclear for energy generation and require building new ones in order to meet the increasing power demands EVs and data centers place on the grid.
Under ALEC’s draft Resolution Urging States to Not Allow the Use of IRIS Assessments to Inform its Rulemakings, state regulators would not be allowed to use the Environmental Protection Agency’s Integrated Risk Information System (IRIS) “as the basis of hazard assessment or risk assessment decisions or as the basis to establish air, water or waste rulemaking.”
The Natural Asset Company Prohibition Act would ban this type of corporation. In 2023, the Securities and Exchange Commission (SEC) floated the idea of including “Natural Asset Companies” (NACs) on the New York Stock Exchange, but then backtracked. NACs are a new type of corporation that put a market value on ecosystems and natural resources and are organized to “actively manage, maintain, restore (as applicable), and grow the value of natural assets and their production.”
The State Financial Officers Foundation (SFOF), the ALEC-tied group of Republican state treasurers, auditors, CFOs, and others weaponized to fight “woke capitalism” and ESG, and American Stewards of Liberty, the group tasked with upending Biden’s 30×30 executive order to help tackle the climate crisis, worked together to drum up opposition to NACs.
ALEC is also seeking to redefine terms used to promote sustainable energy to include traditional methods. One bill, the Act to Define Clean Energy, would replace references to “renewable energy” with “clean energy,” so that “power generation supplied by nuclear fuel” can be promoted in green energy policies. A related model up for consideration, The Affordable, Reliable and Clean Energy Security Act, would include natural gas and nuclear in the definition of “green energy.”
Smoothing the Way for States to Overturn Regulations after Chevron
Last month, the Supreme Court rejected 40 years of precedent and overturned the 1984 decision in Chevron v. Natural Resources Defense Council, summarily curtailing the power of federal agencies to interpret laws they administer and giving that power to the courts. The monumental decision provides an opening for lawyers to overturn regulations that address everything from the ongoing climate emergency to the healthcare crisis and workplace safety.
ALEC meeting attendees will hear a presentation titled, “After Relentless: What Will Chevron’s Revised Status Mean for State Officials?” and vote on model legislation to Establish the Office of Regulatory Management in the states. “This Office aims to enhance and utilize transparency to reduce unnecessary regulatory burdens and ensure that new regulations are evidence-based and cost-effective,” the ALEC description reads.
Once an office is up and running, it is clear that the regulatory “transparency” created will be used by anti-regulation zealots and corporations to challenge regulations that conflict with their ideology or impact their profit models.
Diversity, Equity, and Inclusion (DEI)
Partisan legislative attacks on diversity, equity, and inclusion (DEI) efforts from the right ramped up in 2023 and 2024, so it isn’t surprising that ALEC would provide model bills related to this to aid their members.
The Freedom from Indoctrination Act introduced this week prohibits universities and colleges from requiring DEI courses and prevents them from requiring first-year students to participate in DEI orientation activities. The model policy was first circulated by the right-wing Goldwater Institute and Speech First in April of 2023.
“During the 2023 legislative session alone, anti-diversity, equity, and inclusion bills were introduced in various states 40 separate times, and all of them addressed a combination of the same four objectives: ending mandatory DEI training, preventing the use of diversity statements in job applications and promotion materials, prohibiting hiring practices designed to increase diversity, and/or ending state funding for DEI offices and personnel altogether,” as CMD reported earlier this month.
Following the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, ALEC is circulating the SCOTUS Anti-Discrimination Implementation Act to officially ban affirmative action programs designed to increase diversity on campuses or make places of higher education reflective of local demographics.
ALEC is also asking its members to vote on the First Amendment Preservation Act, which would prevent any state agency—including universities—from contracting with “media monitoring organizations” or advertisers or marketing companies that work with these organizations.
The bill defines media monitoring organizations as groups that “rate or rank news and information sources for the factual accuracy of their content,” or “provide ratings or rankings of news sources based on misinformation, bias, adherence to journalistic standards, or ethics, including, but not limited to, organizations that claim to engage in fact checking or determining overall news accuracy.”
In other words, this bill seeks to protect those engaged in hate speech or the peddling of mis/disinformation by making it harder for state governments to assess the accuracy of information and by punishing private companies that work with fact checkers to prevent the spread of disinformation.
Education Privatization, Attacks on Free Speech, and AI Gun Detection in Schools
On January 30, ALEC launched the Education Freedom Alliance in partnership with the Committee to Unleash Prosperity and the Job Creators Network to further privatize K–12 education through Education Savings Accounts (ESA), or universal, tax-funded school vouchers.
The ALEC-led coalition set “its goal of expanding universal education freedom to 25 states by 2025,” but will struggle to reach that target after only passing three ESA bills—in Alabama, Louisiana, and Missouri—so far this year, bringing the total to 12. ALEC and Charles Koch’s yes. every kid advocacy group will promote ESAs to ALEC attendees in a two-part workshop titled “The New Frontier: ESAs and Beyond.”
ALEC is also asking members to vote on the Microschool Education Act, which would give home-based or micro-school entities of 100 or fewer students the same rights as private and charter schools. Koch and the Walton Family Foundation are major backers of this latest school privatization effort.
Opponents fear that since this definition includes any criticism of Israel, relying on it will expose anti-war and pro-Palestinian activists to prosecution or hate crime charges for simply speaking out against Israel’s war in Gaza or occupation of Palestine.
ALEC’s American City County Exchange project will vote on the ACCE Model County Code Ordinance, which would streamline zoning for microschools.
In direct attacks on the First Amendment rights of students, ALEC meeting attendees will consider an Act to Prohibit Antisemitism in State K–20 Educational Institutions and an Act to Adopt the International Holocaust Remembrance Alliance (IHRA) Working Definition of Antisemitism.
The first bill appears to be positive on the surface, but within the text it states that, “The Working Definition of Antisemitism adopted by the International Holocaust Alliance (IHRA) that contains contemporary examples of antisemitism may also be used to identify antisemitism.”
Opponents fear that since this definition includes any criticism of Israel, relying on it will expose anti-war and pro-Palestinian activists to prosecution or hate crime charges for simply speaking out against Israel’s war in Gaza or occupation of Palestine, as Truthoutreported in an article tying ALEC to the effort to codify the weaponized definition of antisemitism.
The second model bill would officially adopt the IHRA definition. ALEC, along with representatives from the Israeli government and the Heritage Foundation, has been pushing state lawmakers to adopt the IHRA definition since as early as 2021.
Lastly, in a bizarre attempt to address the public health crisis of gun violence in our nation’s schools, ALEC is promoting the Use of AI Firearm Detection Software in Schools. The model bill would allow state departments of education to use taxpayer money to buy AI gun detection software.
For many years, ALEC worked with the National Rifle Association (NRA) and Gun Owners of America to develop legislation to loosen gun regulations, promote stand-your-ground laws, allow concealed handguns on college campuses, and prevent cities from suing gun manufacturers, and many others.
Redefining States’ Rights
ALEC may be spoiling for a fight in the U.S. Supreme Court to radically curtail federal powers. Up for consideration at this week’s annual meeting are two bills that would do just that.
The Presumption of State Jurisdiction Amendments, based on legislation in Utah according to the text, declares state sovereignty and jurisdiction over “natural resources; water resources and water rights; agriculture; education; and energy resources,” unless the federal government can show that “jurisdiction over the subject matter in question is specifically enumerated to the federal government under the Constitution.”
Earlier this year, Utah passed the Utah Constitutional Sovereignty Act, which empowers its legislature to “prohibit a government officer from enforcing or assisting in the enforcement of a federal directive within the state if the Legislature determines the federal directive violates the principles of state sovereignty.”
Now ALEC members are asking to vote on the same model. University of Utah Law Professor Robert Keiter toldCNN after the bill passed there that“if the legislature actually passes a concurrent resolution and overrules a federal regulation, then it will likely be overturned due to the Supremacy Clause.”
Banning Squatting
ALEC members will have the opportunity to debate and vote on a couple of models related to squatting, or the occupying of property by anyone who doesn’t own it or have permission to live in it.
The Stop Squatters Act prohibits anyone from the unauthorized entry or occupation of residential or commercial properties, creates a process for having law enforcement remove squatters, and enacts penalties of a misdemeanor if damages are less than $1,000 or a felony if they exceed $1,000. The bill mirrors a model circulated by the right-wing litigation center Pacific Legal Foundation. ALEC is also circulating a Statement of Principles on Illegal Possession of Private Property on the issue.
Squatting data is sparse, and Juan Pablo Garnham, a researcher and communications manager at Princeton University’s Eviction Lab, toldThe Washington Post in April that “squatting is ‘an extremely rare issue’” in the U.S.
Another Attack on Public Sector Unions
ALEC has long loathed public sector unions and circulated model policies weakening their power. The new so-called Public Employees’ Bill of Rights in front of its membership this week seeks to do the same by mandating that non-dues-paying members be given “equal rights” within a union.
The model bill also allows public employees to sue their unions and obtain a “full accounting” of union activities and dues.
ALEC publishes an anti-union playbook that was recently updated to include bills that target independent contractors and occupational licensing, CMD reported.
Other Drafts up for Consideration
- Act Establishing Foreign Wire Transfer Fees
- ALEC Statement of Principles for Teen Use of Social Media
- An Act Relating to the Creation of an Environmental Restoration Accelerator
- An Act to Identify and Report Certain Foreign-Related Transactions to the Committee on Foreign Investment in the United States (CFIUS)
- Birth Freedom Act
- Charitable Organizations Privacy Protection Act
- Chronic Absenteeism Model Policy
- Dental Therapists Act
- Expanding Physician Access Act
- Family Rights in Medical Investigations Act
- Housing Opportunities Made Easier (HOME) Act
- Increasing Light-Touch Density Housing Act
- Joint and Several Liability Act
- Memorandum of Understanding on Economic Cooperation and Trade Relations between this State and the United Kingdom
- Model Policy to Protect Select US Land from Ownership by America’s Foreign Adversaries
- Model State Artificial Intelligence Act
- Military Spouse Licensure Act
- Pacific Conflict Stress Test Act
- Patient and Pharmacy Protection Act
- Prohibiting Cell Phones in K-12 Classrooms
- Reaffirmation of the US Commitment to Taiwan on the 45th Anniversary of the Taiwan Relations Act
- Recall of Elected Civic Leaders and Integrity Measures (RECLAIM) Act
- Resolution on the Importance of Pursuing Comprehensive Trade Agreements with Trusted Trading Partners
- Resolution Opposing the Imposition or Expansion of Digital Trade Barriers
- Resolution Reaffirming Support for the U.S. State-Based System of Title Insurance Regulation in Response to Growing Federal Encroachment
- Resolution To Adopt The “Think Differently” Initiative To Assist Individuals With Special Needs And Their Families
- Resolution to Create a County Employee Recognition Program
- Safeguarding American Families Everywhere (SAFE) Act
- Sexual Offenses Against Children Act
- Short-Term Rental Tax Policy
- The “Only Pay for What You Get” Ensuring Reliable and Affordable Electricity Act
- Truth in Electricity Generation Labeling Act
- Unlawful Release of a Minor’s Identifying Information
- Victim and Witness Address Confidentiality Act
- Victim Impact Statement Act
- Workforce Housing Tax Incentives Program
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