2016 TENNESSEE LEGISLATIVE REPORT
2016 was the second session of the 109th General Assembly, an election year, and rife with ideological posturing and party line votes on most issues. Despite this, we fared well on several issues.
OUR PROACTIVE PRIORITIES
SB 2352/HB2084 by Sen. Steve Dickerson and Rep. Bill Dunn was this year’s version of the “Property Assessed Clean Energy (PACE) Act” that the Sierra Club’s Rebuild and Repower Committee drafted and introduced last year with Sen. Steve Southerland and Representative Bill Dunn as sponsors. PACE would allow local taxing authorities to develop programs that would allow property owners to get a loan for energy efficiency improvements and/or renewable energy installations and pay it back as an additional line item on their property tax bill. This allows for lower interest and easier loan qualification due to the security of the repayment method and, because repayment of the loan stays with the property, it allows folks to make sound investments without the fear of not realizing the savings before they sell the property. We couldn’t move it last year due to opposition of the Tennessee Bankers Association because it placed the PACE loan ahead of the primary mortgage. This year’s version made the PACE loan subordinate to the mortgage, and while it initially appeared that it would pass this year, last minute concerns about out-of-state competition expressed by in-state financial institutions saw the bill go to summer study. We feel confident that PACE will pass in the next session with language that satisfies all.
SB 1915/HB 1966 by Sen. Steve Dickerson (Nashville) and Rep. Bo Mitchell (Nashville) would have prohibited the construction of a gas compressor on land that is located within one mile of a public park. This bill was brought to address two huge natural gas pipeline compressors planned for Davidson County, one in the organic farming community of Joelton, and the other in the residential community of Cane Ridge. Unfortunately, the oil and gas industry spent hundreds of thousands of dollars on big name lobbyists to defeat the bill.
SB 1944/HB 1881 by Sen. Ken Yager (Kingston) and Rep. Dennis Powers (Jacksboro) would reallocate all oil and gas severance tax revenue to the county in which the oil or gas well was located, less collection and administration costs (currently the county receives only 1/3 of revenue and the state receives the other 2/3). This bill was drafted on behalf of our partners Statewide Organizing for Community eMpowerment (SOCM) by the fabulous Erica Davis (now in her first year of law school at UT). The counties where most oil and gas development is occurring are largely the same as those where coal severance taxes were the greatest source of revenue before the coal industry began its precipitous decline. Unfortunately, due to the loss of revenue to the state, it was placed “behind the budget” and taken off notice during final budget debates.
SB 1955/HB 2364 by Sen. Jeff Yarbro (Nashville) and Rep. Mike Stewart (Nashville) reintroduced the "Tennessee Scenic Vistas Protection Act" which would prohibit the issuance of water quality permits for surface (coal) mining activities along ridgelines. Seeing no chance that it would pass in the current legislature, the sponsors requested that Sierra Club’s Legal Committee Chair Brian Paddock draft an amendment to turn it into a law requiring an annual report on potential upstream threats to drinking water supplies to help avoid disasters like what occurred on the Elk River in West Virginia in 2014, when MCHM, a toxic chemical used to wash coal, was released from a Freedom Industries chemical storage facility, resulting in the loss of water for more than 300,000 people for more than 5 days. Unfortunately, the Senate Clerk didn’t think the original caption of the bill was broad enough to carry the amendment. It will be back next year with its own caption.
SB 2450/HB 2212 by Sen. Lee Harris (Memphis) and Rep. Jason Powell (Nashville) was originally captioned to require that reports issued by the Economic Council on Women on the wage disparities between men and women, and minorities and nonminorities be transmitted to the governor and the General Assembly. Inspired by the tragedy in Flint, Michigan. Harris and Powell amended it to instead require public water systems that test positive for high levels of lead in drinking water to notify the Tennessee Department of Environment and Conservation (TDEC) within 24 hours and all affected customers within 72 hours — instead of the current 30-day requirement, making Tennessee the first state in the nation to pass such legislation. They were able to do this because the caption clearly opened Title 68 (Health, Safety and Environmental Protection) of the TN Code, with the intent of requiring agency reporting to the General Assembly. It passed both houses unanimously.
OTHER BILLS WE SUPPORTED
SB 1049/HB 857 by Sen. Jeff Yarbro (Nashville) and Rep. Bill Beck (Nashville) was a pleasant surprise. While captioned to require that a proposed landfill owner to provide notice to persons owning property within a five-kilometer radius, as amended it turned out to be authority for Davidson County to assess fees on solid waste disposal that would internalize the social costs of landfilling wastes that could otherwise be diverted, recycled and remanufactured. This stealth bill was craftily brought by Recycling Advocates of Middle Tennessee (RAM) who were successful in getting it passed with huge bipartisan support.
SB 2357/HB 2292 by Sen. Steve Dickerson (Nashville) and Rep. Bill Beck would enact the "Dam Safety Act" to prohibit the issuance of a permit to conduct surface mining on land that is located within one mile of a dam operated by the U.S. army corps of engineers. This was the flagship of a suite of bills by Dickerson and Beck that attempted to stop the siting of a limestone quarry adjacent to the Old Hickory Lock and Dam just upstream from Nashville. Unfortunately, pro-corporate property rights forces derailed all their attempts.
SB 1832/HB 1871 by Sen. Mike Bell (Riceville) and Rep. Steve McDaniel (Parkers Crossroads) creates the Forum on Tennessee's Great Outdoors for the purpose of conducting a comprehensive review of the health and status of this state's natural resources and outdoor recreation needs and opportunities. This bill was brought by our friends at the Tennessee Wildlife Federation and seeks to document the economic benefits derived from the conservation of our natural resources. It passed the Senate, but due to a small fiscal note, was placed “behind the budget” in the House. Unfortunately, the bill was taken off notice during final budget hearings.
OUR DEFENSIVE PRIORITIES
Our biggest fight this year was over SB 1830/HB1892 by Sen. Steve Southerland (Morristown) and Rep. Curtis Halford (Dyer), which will upend our state rules regarding water pollution from stormwater runoff. As introduced, it requires that general permits issued by TDEC under the Water Quality Control Act be no more restrictive than federal requirements for management of post construction runoff. This sets a horrible precedent as the intent of our federal environmental laws has always been to set a minimum standard that states could and should exceed. The bill was brought by the TN Homebuilders Association with the goal of getting rid of 2010 MS4 General Permit rules that require that developers design their projects to retain and infiltrate, evaporate or treat the first 1” of runoff from any storm following any 72 hour dry period. This practice is the least costly and most effective method of keeping the automotive fluids, nutrients, sediment and fecal coliform borne by that initial 1” flush from entering our streams. Bowing to pressure from the Homebuilders, TDEC issued a new Draft Permit in February that largely conceded to their concerns, but it wasn’t enough. Sierra Club coordinated the lobbying efforts of a large coalition of nearly every water quality organization in the state in opposing the bill, including the Tennessee Stormwater Association. Unfortunately, the TN Homebuilders, supported by out of state interests, spent enormous amounts of money on lobbying, and few legislators were willing to buck them in an election year. Even TDEC was vehement in their opposition to the bill. We will continue this battle through the re-permitting process and take legal steps if necessary to ensure that our streams remain protected.
SB 1451/HB 1815 by *Sen. Mark Green (Clarksville) and Rep. Sabi 'Doc' Kumar (Springfield) sought to increase the registration fee for hybrid-electric passenger vehicles by $75.00, and electric passenger vehicles by $150.00. Senator Green is convinced that hybrids and EVs are freeloading since they don’t pay gas taxes. After figuring out that hybrids really still don’t get that much better mileage, he amended them out. After the Senate Transportation Committee learned that the bill as amended would only raise a little more than $300,000--hardly enough to pave a parking lot--much to Green’s chagrin, not one member of the committee offered a motion on the bill.
SB 1716/HB 1650 by Sen. Todd Gardenhire (Chattanooga) and Rep. Mike Carter (Ooltewah) initially sought to prohibit the use of any state gasoline tax revenues for any pedestrian, bicycle, and other non-vehicular facilities. The bill was quickly amended to remove pedestrian facilities, recognizing the huge loss of federal matching funds that would be incurred from failure to comply with the American Disabilities Act. It was further amended to allow the use of gas tax funds for bike lanes on roads less than 35 miles per hour. At the time of this writing, the bill still targets bike lanes on roads over 35 mph and off road bike trails or greenways. We finally killed this bill in the last weeks of the session, and look forward to partnering with our allies in Bike Walk TN to move proactive policy in the future.
SB 2591/HB1941 by Sen. Mark Norris (Collierville) and Rep. Tim Wirgau (Buchanan) was dubbed “The Right to Start a Concentrated Animal Feeding Operation Act.” This law imposes the same burden of proof in nuisance actions based on changed farming operations as presently applied to nuisance actions based on established farming operations. While the Sierra Club supports protecting the rights of farmers to continue their current operations should land use change around them, this bill will allow farmers to engage in new operations, including CAFOs, to the detriment of the quality of life of their neighbors. It was signed by the Governor on April 7.
SB 0842/HB 0833 by Sen. Ken Yager (Kingston) and Rep. Dennis Powers (Jacksboro) is the last ditch effort of the dying coal industry in TN to increase production by reducing regulation. Dubbed the "Primacy and Reclamation Act of Tennessee," it seeks to have the TN Department of Environment and Conservation (TDEC) resume primary permitting authority over surface mining (MountainTop Removal), a responsibility that the federal Office of Surface Mining took over from TDEC 1984. There is a considerable cost associated with taking the program back over and the bill is stuck in the budget committees. The bill was taken off notice in the House and sent to the black hole of the finance subcommittee in the Senate. We won!
OTHER BILLS WE OPPOSED
SB 2389/HB 2068 by Sen. Mike Bell (Riceville) and Rep. Martin Daniel (Knoxville) attempted to “narrowly construe” agency powers under the Uniform Administrative Procedures Act, the effect of which would be stifling to environmental, public health and consumer safety laws. The bill was amended to do away with the “narrowly construed” language, replacing it with requirements that agencies present “convincing evidence” that their rules are in the public interest and conform to the intent of the law. Even as amended, it’s still a bad bill that originates with the American Legislative Exchange Council (ALEC). As of this writingit is awaiting the Governor’s signature.
SB 1934/HB 1946 by Sen. Ken Yager (Kingston) and Rep. Ron Lollar (Bartlett) should be otherwise known as the “Protect Monsanto’s Profits Act”. It specifies that the commissioner of agriculture has exclusive authority and jurisdiction over all matters related to the regulation of seed except as otherwise provided by the Tennessee Drug Control Act or any other state statute and requires the commissioner to maintain a scheme for regulating seed that is uniform across the state. This American Legislative Exchange Council “preemption” bill bans local governments from banning Genetically Modified agriculture in their communities.
SB 0777/HB 0721 by Sen. Mae Beavers (Mt. Juliet) and Rep. Mark Pody (Lebanon) exempts vehicles that are three years old and newer and that have an odometer reading of less than 36,000 miles from emissions testing requirements. We see this as problematic due to the availability of “performance” software and/or chips that may be installed which may substantially alter the emissions characteristics of vehicles. Fortunately, the bill was amended to be an “opt in” bill, which we hope most major metros will decline.
SB 1777/HB 2151 by Sen. Randy McNally (Oak Ridge) and Rep. John Ragan (Oak Ridge) would have created the Tennessee Energy Policy Council to make recommendations to the governor and general assembly on how to manage energy resources in this state. The proposed makeup of this council was heavily weighted towards fossil fuels and nuclear. Fortunately, due to a fiscal note, it was placed behind the budget and never funded.
BAD RESOLUTIONS
House Joint Resolution 0092 by Rep. Andy Holt (Dresden) expresses support for the federal transfer of public lands to the western states and urges Congress to coordinate the transfer of title to the western states. This is an another ALEC initiative. It passed both houses along party lines. Governor Haslam signed it on January 26.
Senate Joint Resolution 0002 by Sen. Mark Norris (Collierville) urges the proposal of a Constitutional amendment requiring Congressional approval of federal regulations under certain circumstances. Otherwise known as the “Regulation Freedom Amendment” this bill is being pushed in many states by the American Opportunity Project in hopes that they can force Congress to propose a Constitutional Amendment that reads:“Whenever one quarter of the Members of the U.S. House or the U.S. Senate transmit to the President their written declaration of opposition to a proposed federal regulation, it shall require a majority vote of the House and Senate to adopt that regulation.” Governor Haslam signed in on March 31.
Senate Joint Resolution 0067 by Sen. Mike Bell (Riceville) makes application for the calling of an Article V convention under the United States Constitution to consider amendments to impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress. This is a major focus of the American Legislative Exchange Council (ALEC). 38 states must make the same application. It was passed in both houses along party lines and signed by the Governor on February 9. Fortunately, accompanying legislation, SB 2017/HB 2584 by Sen. Bill Ketron (Murphreesboro) and ALEC State Chairman Rep. Curry Todd (Collierville) that would ensure conformity among the 38 states applying, and authorize Tennessee’s participation under the "Compact for a Balanced Budget,” failed in the Senate Government Operations Committee.
IN CLOSING
The final acts decided in the session involve the budget and negotiated amendments to the budget to fund new legislation or defund “unpopular” programs. Two items stand out in this regard. The first is a $100,000 addition to make a contribution to the American Legislative Exchange Council to support their holding their annual meeting in Nashville next year (2017). Senators Lee Harris (Memphis), Sara Kyle (Memphis) and Jeff Yarbro (Nashville) tried to stop this but didn’t prevail. The second item is a last minute cut of $8,000,000 dollars from the Empower TN program that has been making great strides in improving the energy efficiency of our state buildings. I think those two items speak volumes in regards to where our current Assembly is at. The session ended “sine die” on April 22, leaving the Governor free to veto the Homebuilder’s stormwater bill, with no provision for an override.
For more information, or to get involved with the Chapter’s Legislative Program, contact Scott Banbury at 901-619-8567 or smbanbury@gmail.com.