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Kansas

Schlitterbahn indictments dismissed

Some good news for the company, following the worst thing that ever happened at a Schlitterbahn water park.

A Wyandotte County judge on Friday said that the Kansas Attorney General ‘irreparably tainted’ a grand jury with prejudicial evidence to obtain indictments against several Schlitterbahn employees and associates involved in the design, construction and operation of a water slide that killed a 10-year-old boy in 2016.

Judge Robert Burns dismissed indictments against three individuals and two corporate affiliates of Schlitterbahn, the company that built the 17-story Verruckt water slide in Kansas City, Kan., in 2014. It drew large crowds until Caleb Schwab, son of Kansas Secretary of State Scott Schwab, was killed by decapitation on the ride. The water slide, once billed as the world’s tallest, was torn down last year.

Burns sided with defense attorneys who argued that lawyers in Kansas Attorney General Derek Schmidt’s office showed a Wyandotte County grand jury evidence that would not have been admissible in trial — clips of reality television, misleading expert testimony and references to an unrelated death from years ago — that improperly influenced the grand jury in handing down criminal charges.

Taken all together, Burns found the grand jury had been abused to obtain indictments, which contained charges as serious as second-degree murder for two of the defendants.

“The court has grave doubts as to whether the irregularities and improprieties improperly influenced the grand jury and ultimately bolstered its decision to indict these defendants,” Burns said. “Quite simply, these defendants were not afforded the due process protections and fundamental fairness Kansas law requires.”

For now, Schlitterbahn co-owner Jeff Henry, Verruckt designer John Schooley and former Schlitterbahn operations manager Tyler Miles face no criminal charges in Caleb’s death. The Kansas Attorney General can seek criminal charges again, either through another grand jury, through a preliminary hearing or seek an appeal of Burns’ decision. Or they could just walk away from the case.

See here for the background, and here for a deeper dive. I still have very mixed feelings about all this, and if you keep reading the story you’ll see that the reasons for the dismissal were more technical and procedural than substantive. I don’t feel like the Schlitterbahn folks were exonerated in any way, just that maybe the Kansas AG didn’t do a good job. (To be fair, the story notes that a lot of people thought the indictments were problematic in the first place.) The Schlitterbahn settled a civil case related to Caleb Schwab’s death for $20 million, so it’s not like there were no consequences. I’m just still not ready to forgive and move on. Texas Monthly has more.

The Schlitterbahn story

Texas Monthly does its thing on Schlitterbahn co-owner Jeff Henry and the criminal charges that stemmed from the death of an 11-year-old boy on the biggest ride at the park in Kansas City.

Investigators and detectives from the Kansas City Police Department, the Kansas Bureau of Investigation, and the Kansas attorney general’s office also arrived at Schlitterbahn. A detective interviewed 29-year-old Tyler Miles, who had been working at the park since 2013 and had advanced from construction worker to lifeguard to director of operations, responsible for all aspects of the park’s day-to-day ride operations. “Have you been aware of any complaints regarding Verrückt the ride in the last season?” the detective asked.

Miles answered, “I have not, sir,” according to the detective. His lawyers would later say he was so confident in the ride’s safety that on the very day that Caleb was killed, he had brought his wife to the park to ride Verrückt.

Investigators later learned, however, that Schlitterbahn employees were required to submit regular “ops reports” about the rides they monitored and, according to reports that the investigators read, Verrückt had problems that were never revealed to the public. For instance, eleven Schlitterbahn customers said they had been injured on Verrückt between August 31, 2014, and August 5, 2016 (two days before Caleb’s death). In five of the incidents, riders claimed they were injured while their rafts were still in the chute. (One rider reported that her head had slammed into the headrest and she sustained a concussion when her raft entered the runout pool at a high speed.) In five other incidents, riders claimed their rafts went airborne over the crest of the second hill and that they suffered head, neck, and back injuries when their rafts slammed back down onto the chute. And a man named Norris “J. J.’’ Groves reported that when his raft went airborne, his face and forehead struck the netting and a metal hoop, causing his right eye to swell shut for the rest of the day.

An investigator spoke to a seventeen-year-old lifeguard who said that Miles had ordered him to write a report that downplayed the severity of the Groves incident. Meanwhile, sifting through Verrückt’s maintenance reports, other investigators concluded that Miles had avoided or delayed making repairs that would have taken the ride out of commission. According to investigators, Miles hadn’t even ordered repairs when a Schlitterbahn manager informed him, on July 15, 2016 (three weeks before Caleb’s death), that maintenance work on Verrückt’s brake system was a priority.

What’s more, according to court documents, the investigators learned that on July 3, 2014, one week before the ride’s grand opening, an engineering firm hired by Jeff and Schooley to perform accelerometer tests on Verrückt’s rafts had issued a report suggesting that if the combined weight of the three passengers in a raft was between 400 and 550 pounds—the weight Jeff and Schooley had agreed was appropriate—there was a chance the raft would go airborne on the second hill. The ride opened anyway, with the weight range unchanged.

By 2017, attorneys for Schlitterbahn were meeting with the Schwab family’s attorneys. They eventually agreed that the water park and various companies associated with the design and construction of Verrückt would pay Caleb’s family a $20 million settlement, an astonishing sum. The two sisters who had ridden behind Caleb, both of whom suffered facial injuries, also received a settlement, of an undisclosed amount.

Still, neither Jeff nor his siblings offered any public explanation for what had happened. Had there been a problem with the distribution of the three passengers’ weight that caused the raft to lift off into the air? Had something gone wrong with the cannon nozzle that shot the raft up the second hill? Was the wind a factor? No one seemed to know, not even Jeff.

He said he wanted to return to Verrückt, which closed immediately after Caleb’s death but still loomed over the Kansas City landscape like some grisly monument, so he could find out what had gone wrong. His hope, he said, was to reconstruct the fatal ride exactly as it took place, assisted by a team of independent experts. But prosecutors for the Kansas attorney general’s office persuaded a judge to lock down the ride. They believed it was a valuable piece of evidence that should not be touched. Schlitterbahn was perhaps not the scene of a freak horrific accident, the prosecutors were saying, but the scene of a crime.

See here for the background and be sure to read the whole thing, as any story by Skip Hollandsworth is worth reading. Verrückt has since been torn down, and if there is a criminal trial it will happen next year. I’m still struggling with how I feel about this, and I hope that enough facts come out during the trial to help me sort it out. Read the story and see what you think.

The Schlitterbahn indictments

I’m still stunned by this.

Three Schlitterbahn Waterparks officials now have been swept up in a criminal probe into the 2016 decapitation death of a 10-year-old boy at the company’s Kansas park.

An indictment unsealed Tuesday in Kansas reveals for the first time that ride designer John Timothy Schooley and Henry and Sons Construction Company Inc., Schlitterbahn’s construction firm, also face charges of second-degree murder, aggravated battery and aggravated endangering of a child in the death of Caleb Thomas Schwab, along with park co-owner Jeffrey Wayne Henry.

The 10-year-old, the son of Kansas State Rep. Scott Schwab, died Aug. 7, 2016 while riding the 168-foot Verrückt slide when he hit a hoop that held protective netting on the ride’s second hill.

The indictment names Henry as Verrückt’s “visionary and designer” and Schooley as the slide’s lead designer. It accuses both men of ignoring safety standards during the slide’s design process and warnings about the ride’s potential danger.

If convicted on all 18 counts, each defendant faces a maximum sentence of almost 139 years and fines potentially totaling $3.4 million.

[…]

Neither Henry, who dropped out of high school to work for his father’s water park, nor Schooley had technical or engineering credentials pertaining to amusement ride design or safety, the charging document says. Furthermore, neither man possessed the expertise required to properly and safely design a ride as complex as Verrückt, according to the indictment.

Henry, who co-owns the New Braunfels theme park company with his two siblings, first conceived of the Verrückt project in November 2012 as a way to impress producers of the Travel Channel’s Xtreme Waterparks series and fast-tracked the slide’s design and construction phases, skipping over necessary calculations and safety measures in the process, according to the indictment.

Nothing like wanting to meet a reality show’s production deadlines to speed up the production of a water park ride. This long look at the indictments and the process that led to the faulty design decisions will make you question your desire to ever go to an amusement park again.

Henry first conceived of building the world’s tallest and fastest water slide on Nov. 13, 2012 in a “spur-of-the-moment” effort to catch the attention of the producers of the Travel Channel’s Xtreme Waterparks series, the indictment says.

But neither Henry, who dropped out of high school to work for his father at the original New Braunfels park, nor John Timothy Schooley, named as Verrückt’s lead designer, had technical or engineering credentials applicable to amusement ride design or safety or the expertise required to properly design a ride as complex as Verrückt, the charging document alleges.

The document quotes Schooley as saying, “If we actually knew how to do this, and it could be done that easily, it wouldn’t be that spectacular.”

The pair’s combined lack of expertise along with a rushed completion timeline led Henry and Schooley — longtime friends and business partners — to miss essential steps in the slide’s design and construction process, the indictment alleges, and favor “crude trial-and-error” methods over complex mathematical and physics calculations. According to the indictment, investigators found no evidence that the pair had made vital calculations measuring the physics of the ride — speed, weight, distance, velocity, momentum, gravitational force, centripetal force and friction.

Henry was known as a micromanager who pushed for the ride to be completed by June 15, 2013, about seven months after his initial conception, according to the document. Industry experts told the Kansas grand jury that a team of about four members including two qualified engineers would need at a maximum of six months for design calculations alone on a project like Verrückt, the indictment says. The Verrückt project didn’t employ a single engineer in the design phase, prosecutors allege.

Henry wrote two emails Dec. 14, 2012 to Schooley and other park employees: “We all need to circle on this. I must communicate reality to all. Time, is of the essence. No time to die. J”

In a separate email, Henry wrote, “I have to micro manage (sic) this. Now. This is a designed product for TV, absolutely cannot be anything else. Speed is 100 percent required. A floor a day. Tough schedule. Jeff”

Within 36 days of Henry’s initial idea, the design and construction on the Verrückt prototype was finished, court documents show.

Read the whole thing. I’ve been a fan of the Schlitterbahn for almost 30 years, but I don’t know that I can bring myself to visit it any more. I hope the defense can present a compelling alternate explanation for what happened, because what’s being shown here is disturbing, to say the least. See here and here for more. I’ll try to keep an eye on this going forward.

Paxton goes after DACA

I have no words.

Best mugshot ever

Texas Attorney General Ken Paxton and officials from nine other states on Thursday urged the Trump administration to end an Obama-era program that’s allowed hundreds of thousands of undocumented immigrants to live and work in the country without fear of being deported.

In a letter to U.S. Attorney General Jeff Sessions, Paxton urged the White House to rescind the 2012 Deferred Action for Childhood Arrivals, or DACA, program. DACA applies to undocumented immigrants that came to the country before they were 16 years old and were 30 or younger as of June 2012. It awards recipients a renewable, two-year work permit and a reprieve from deportation proceedings.

As of August 2016, more than 220,000 undocumented immigrants in Texas had applied for a permit or a renewal of one under the program, and nearly 200,000 of those have been approved, according to government statistics. It’s the second-highest total behind California’s estimated 387,000 applications and 359,000 approvals during the same time frame.

“We respectfully request that the Secretary of Homeland Security phase out the DACA program,” Paxton wrote. He was joined by the attorneys general of Arkansas, Alabama, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee and West Virginia, as well as Idaho Gov. C.L. Otter.

“Specifically, we request that the Secretary of Homeland Security rescind the June 15, 2012 DACA memorandum and order that the Executive Branch will not renew or issue any new DACA or Expanded DACA permits in the future,” Paxton wrote.

[…]

The Mexican American Legal Defense and Educational Fund, or MALDEF, blasted the move and warned the signatories they’ll be remembered for being on the wrong side of history.

“Their evident xenophobia is not remotely consistent with the trajectory of our nation’s history and future progress,” MALDEF president and general counsel Thomas Saenz said in a statement. “Their political careers and each of their states will suffer from their mean-spirited stupidity.”

I don’t even know what to say about this. It’s cruel, it’s stupid, and I can’t think of a meaningful definition of “Christian” that would allow for it. The one sure to be effective thing we can do about this is to elect an Attorney General who won’t pull this crap. Nothing will change until we change who we elect. The Press, the Current, and Daily Kos have more.

State to help defend county bail policies

Of course it will.

Best mugshot ever

Texas Attorney General Ken Paxton and the top lawyers in five other states are backing Harris County in its protracted battle over money bail for poor low-level defendants, as the tally of those released on no-cash bail nears 1,000.

Paxton and the lead attorneys in Arizona, Hawaii, Kansas, Louisiana and Nebraska filed a joint brief late Monday supporting the county’s appeal of a federal court order that took effect three weeks ago eliminating cash bail for indigent misdemeanor defendants.

[…]

At a tense Harris County Commissioners Court meeting on Tuesday, officials provided the clearest picture yet of the people released from impact of Rosenthal’s ruling. Nearly 980 people have been released by the sheriff under Rosenthal’s ruling as from June 6 through Friday, according to county’s office of budget management.

Of those, 40 people who were released on personal bonds had been arrested again by Friday and charged with new crimes, a rate of about 3 percent.

In the group of people who were able to afford cash bond — either through a bail bondsman or by posting cash — during the same time period, only about 1 percent had been re-arrested, county officials said.

The county’s arguments were countered in a lengthy hearing before Rosenthal that led to her order.

[…]

Paul Heaton, academic director of the University of Pennsylvania Law School’s Quattrone Center for the Fair Administration of Justice and co-author of a study on Harris County’s criminal justice system, said the brief rehashes old arguments.

“The brief does demonstrate, however, that there are still important constituencies that have yet to be convinced of the need for bail reform,” he said. “Despite the significant progress in this area in states like New Jersey, Maryland, and Kentucky, and the mounting empirical evidence that cash bail systems can generate unwanted disparities and harm public safety — particularly when applied to low-level offenders — there are still many jurisdictions satisfied with the status quo that don’t want to change.”

Alec Karakatsanis, director of Civil Rights Corps, who represents ODonnell and the others who couldn’t afford bail, said Monday’s filing by the states’ attorneys echoed that stance.

“The amicus brief is a repeat of bail industry talking points that are entirely untethered to law and to fact,” he said.

I couldn’t find a copy of the Paxton brief, so you’ll have to rely on the story for what we know. Hard to know what else to make of this, or if the amicus brief will have any effect. Some days I wonder what it would be like to have an Attorney General who fights on the right side of an issue, any issue. Must be nice.

Friday was a very good day for voting rights

In North Carolina:

Still the only voter ID anyone should need

Still the only voter ID anyone should need

The United States Court of Appeals for the Fourth Circuit’s opinion in North Carolina State Conference of the NAACP v. McCrory is nothing short of a beat down. The court does not simply tear apart major provisions of the law, it catches state lawmakers at the center of a conspiracy to disenfranchise black voters, and it calls them out onto the carpet for it. By the time the court is done scraping the bloody mass of what was once North Carolina’s attempts to justify this law off the floor, the state’s leadership has been thoroughly shamed.

The court’s opinion — primarily written by Judge Diana Gribbon Motz, a Clinton appointee — is rooted in an important understanding of how race and partisanship interact in states like North Carolina with large minority populations.

[…]

As Judge Motz lays out the facts of this case, it’s hard not to come away with the conclusion that North Carolina’s lawmakers wanted to get caught engaging in unlawfully racial discrimination. Just one day after the Supreme Court gutted a key provision of the Voting Rights Act in Shelby County v. Holder, effectively eliminating federal supervision that could have halted this voter suppression law before it ever took effect, “a leader of the party that newly dominated the legislature (and the party that rarely enjoyed African American support) announced an intention to enact what he characterized as an ‘omnibus’ election law.”

Before enacting that law, moreover, “the legislature requested data on the use, by race, of a number of voting practices.” After receiving that data, “the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.” Indeed, this data appears to have guided the state’s lawmakers in drafting a law that would have maximal impact on African-Americans.

The law did not simply contain a voter ID provision. Rather “the legislature amended the bill to exclude many of the alternative photo IDs used by African Americans” while simultaneously retaining “only the kinds of IDs that white North Carolinians were more likely to possess.” (Although, in fairness, this provision was later watered down.)

The legislature’s data on racial voting patterns showed that “African Americans disproportionately used the first seven days of early voting,” and so “the General Assembly amended the bill to eliminate the first week of early voting.” The data showed that “African American voters disproportionately used [same-day registration] when it was available,” and so same-day registration was cut as well. The law also eliminated out-of-precinct voting, which “required the Board of Elections in each county to count the provisional ballot of an Election Day voter who appeared at the wrong precinct, but in the correct county, for all of the ballot items for which the voter was eligible to vote.” African-Americans, meanwhile, were especially likely to take advantage of this practice.

Yet for all these changes, the lawmakers exempted absentee voting from the law’s new voter ID restriction, and it did so after discovering “that African Americans did not disproportionately use absentee voting; whites did.” Thus, as Motz summarizes the facts of the case, “the General Assembly enacted legislation restricting all — and only — practices disproportionately used by African Americans.”

Wonkblog adds on:

Most strikingly, the judges point to a “smoking gun” in North Carolina’s justification for the law, proving discriminatory intent. The state argued in court that “counties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic,” and said it did away with Sunday voting as a result.

“Thus, in what comes as close to a smoking gun as we are likely to see in modern times, the State’s very justification for a challenged statute hinges explicitly on race — specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise,” the judges write in their decision.

This is about as clear-cut an indictment of the discriminatory underpinnings of voter-ID laws as you’ll find anywhere. Studies have already shown a significant link between support for voter ID and racial discrimination, among both lawmakers and white voters in general.

“Faced with this record,” the federal court concludes, “we can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent.”

Ari Berman and Rick Hasen have their own analyses. North Carolina can ask for an en banc review, where the makeup of the full Fourth Circuit is unlikely to favor them, and they can appeal to SCOTUS, where they are unlikely to get five votes. This ruling opens the door to North Carolina being put back under federal oversight – that is, preclearance – for changes to election laws there, but it did not require it. That may yet come, as may also happen with Texas once the district court here reviews the Fifth Circuit voter ID ruling. (On that note, the hearing on how to mitigate Texas’ voter ID law is now set for August 10.) For now, this pernicious law, which was at least as bad as Texas’, has been thrown out. That would be reason enough to celebrate, but we also got good rulings in Wisconsin and Kansas, too. It’s clear to me that what we need is a constitutional amendment affirming that anyone who is eighteen, a citizen, and not currently under a felony conviction, has the right to vote and that any law that abridges that right is illegal. There are a lot of things on the progressive to-do list right now, but that one needs to be up there.

Hey, how about another lawsuit against Obamacare?

Sure, why not?

It's constitutional - deal with it

It’s constitutional – deal with it

Six states filed a new lawsuit Wednesday against the Obama administration over the Affordable Care Act.

The complaint that Texas, Wisconsin, Kansas, Louisiana, Indiana and Nebraska filed in the Northern District of Texas takes issue with the Health Insurance Providers Fee assessed to health insurers to cover federal subsidies.

The lawsuit says nothing in the Affordable Care Act’s language provided clear notice that states would also have to pay the fee.

“This notice was not even provided by rule but was ultimately provided by a private entity wielding legislative authority,” the suit says.

The suit seeks an injunction against the federal rules that say states are responsible for the fee. It also asks that states be refunded for what they’ve already paid.

The story says that the total cost of these subsidies is “$13 billion and $15 billion from states over the next decade”, so we’re not talking budget-busting numbers. It’s more the principle of it, or at least I assume so given the characters in this drama. Maybe by the time this one reaches the Supreme Court, the Senate will have finally gotten around to confirming a ninth Justice. Maybe. Trail Blazers has more.

Yet another Obamacare lawsuit

Some things never get old.

It's constitutional - deal with it

It’s constitutional – deal with it

n Texas’ latest salvo against Obamacare, Attorney General Ken Paxton has filed suit over a fee states must help cover to pay for the sweeping federal health reform law.

Texas joins Louisiana and Kansas in suing the Obama administration over the Health Insurance Providers Fee, which Paxton says cost Texas $86 million in 2013 and about $120 million per year since. Texas feels the effect of the fee, levied on health insurers, because it reimburses the companies that operate with public funds in the state’s privatized Medicaid program.

“This threat to cut Medicaid funding to Texans unless the state continues to pay hundreds of millions in taxes to Washington amounts to the very ‘gun to the head’ the Supreme Court warned about in earlier rulings on Obamacare,” Paxton said in a statement Thursday.

[…]

State lawmakers debated the validity of the fee this year as they were crafting a new budget. A handful of Republican legislators briefly entertained the possibility of not reimbursing the private insurers who operate in Medicaid, the joint state-federal insurance program for the poor and disabled, for the health insurance providers fee. They ultimately voted to pay back the Medicaid managed care organizations — after taking the opportunity to lambast the Affordable Care Act, also known as Obamacare.

Now, Paxton says Texas should get its money back, arguing that the state should not have had to pay the “unconstitutional tax to Washington” in the first place.

The attorney general’s office alleges the wide-ranging federal health law is “silent” about whether states should have to pay the health insurance providers fee — under threat of losing federal funding to pay for Medicaid. That, Paxton says, violates a provision of the U.S. Constitution requiring state officials to “clearly understand” the conditions of accepting federal funds and amounts to “coercion.”

The lawsuit was filed in federal court in Wichita Falls. The states are asking for the fee to be ruled unconstitutional and to be reimbursed for the funding already paid to the federal government in previous years.

You can see a copy of the complaint here. A lot of other anti-Obamacare litigation has been telegraphed in advance, but I couldn’t find anything enlightening on the Health Insurance Providers Fee. You’d think all the obvious targets would have been aimed at already, but I suppose there could be a judge out there willing to buy into whatever Paxton et al are selling. Nice to know his self-recusal isn’t keeping him from his most solemn of duties. Gotta give his wife something to sing about, I guess. As for the merits of the claim that Texas is being unfairly deprived of this Medicaid money, I might have a big more sympathy for it if the state, with Paxton’s assistance and blessing, weren’t voluntarily depriving itself of a whole lot more Medicaid money. But hey, all’s fair in politics, right? Trail Blazers and KUHF have more.

Texas plans to sue over EPA’s latest clean air plan

So what else is new?

ERCOT

Attorney General Ken Paxton said Tuesday that he plans to sue the Obama administration over the proposed “Clean Power Plan,” its plan to combat climate change by slashing carbon emissions from power plants.

“Texas has proven we can improve air quality without damaging our economy or Texans’ pocketbooks,” the Republican said in a statement, claiming the rules would threaten the power grid and increase electric prices. “I will fight this ill-conceived effort that threatens the livelihood and quality of life of all Texans.”

Using those arguments over the past year, the state’s Republican leadership has loudly panned the proposal, which would require the state to cut close to 200 billion pounds of carbon dioxide in the next two decades however it sees fit.

Environmental and health advocates say limiting the greenhouse gas would help fight climate change, bolster public health and conserve water in parched Texas, and they suggest that opponents are exaggerating the economic burdens.

The federal Environmental Protection Agency suggests that Texas could meet its goal through a combination of actions: making coal plants more efficient, switching to cleaner-burning natural gas, adding more renewable resources and bolstering energy efficiency. Under the proposal, Texas could also adopt a “cap and trade” program – a scheme in which companies bid on the right to pollute.

The federal proposal is scheduled to become final in June, and Texas would have one year to submit its plan. But some watching the debate expect the EPA to push back the deadline amid pressure from states and other critics.

If Texas ignores the rules, the EPA will construct its own plan for Texas, though the agency has not said what that might look like. Democrats and others call that approach risky and suggest it would beckon more stringent requirements.

Bills that would direct Texas regulators to adopt a plan are nearing their death in the Legislature.

Fossil fuel interests and 15 U.S. states – not including Texas – have sued the EPA over the proposed rules in a case heard last week in federal court. Judges appeared skeptical of a challenge to rules that haven’t been finalized.

See here, here, and here for the background. I have to say, if Paxton managed to deliver that line about Texas improving its air quality on its own with a straight face, it will be the most impressive thing he ever does in office. Texas has fought the EPA multiple times in recent years with little to show for it, with another fight currently before the Supreme Court. Doesn’t mean they’ll lose this time, but it does give one some hope. It would of course be cheaper and easier and better for everyone if they would give up this fight and adopt rules that the state is already most of the way towards meeting anyway, but like most things in life that comes down to winning elections, and we know how that has gone around here.

Meanwhile, if you don’t like the idea of the EPA wielding power over Texas, you won’t like this, either.

Texas appears poised to enact environmental legislation that could trigger an unintended consequence: more federal oversight.

Fast-moving bills that would curb opportunities for public protest so state environmental permits can be issued more quickly have drawn the attention of the federal Environmental Protection Agency, long the state’s political punching bag.

The agency says it has concerns about the legislation, and may need to review whether it jeopardizes permitting authority the EPA has granted Texas.

Senate Bill 709 would scale back contested case hearings, a process that allows the public to challenge industrial applications for permits at the Texas Commission on Environmental Quality (TCEQ) — such as those allowing wastewater discharges or air pollution.

Similar versions of the bill pushed by Sen. Troy Fraser, R-Horseshoe Bay, and Rep. Geanie Morrison, R-Victoria, have sailed through the House and Senate, rankling consumer and environmental groups.

[…]

The EPA says it shares concerns about the bill, which would overhaul the hearings process in a variety of ways. It would give the agency sole discretion to determine who is an “affected person” who could ask for a hearing; set an 180-day time limit for the proceedings (with potential exceptions); narrow the issues the public could argue; and arguably shift the burden of proof from the company to the public.

“EPA is concerned that as currently drafted, [the legislation] could be read to impact the applicability of federal requirements to federal permitting programs being implemented by the TCEQ,” David Gray, director of external affairs for the EPA’s Dallas-based regional office, recently wrote to Rep. Eddie Rodriguez, D-Austin, who had asked for input.

Gray called the shift in the “burden of proof” as particularly problematic, adding that the EPA should review the legislation to ensure that it doesn’t “interfere with federal requirements or alter the basis for one or more program requirements.”

See here for the background. It’s like we can’t help ourselves sometimes, isn’t it?

And finally, on a related note:

Kansas and Texas will file amicus briefs supporting Florida in its lawsuit against the federal government over Medicaid expansion, Gov. Rick Scott announced Monday.

Scott filed suit last week, alleging that the federal government is “coercing” the state into accepting Medicaid expansion by witholding the extension of a different Medicaid program. The Low Income Pool brings $1.3 billion in federal funds to the state to pay hospitals for care for the poor and uninsured and is set to expire June 30.

“I am glad Kansas and Texas are joining our fight against the Obama Administration for attempting to coerce Florida into Obamacare expansion by ending an existing federal healthcare program and telling us to expand Medicaid instead. The US Supreme Court has already called this sort of coercion tactic illegal,” Scott said in a released statement.

In granting a one-year extension last year, federal officials stated they would not extend it again without significant changes. A recent letter from federal officials to the state clearly suggested the fate of LIP was tied to Medicaid expansion but officials with the Center for Medicare and Medicaid Services have also said Florida is free to expand Medicaid or not as it wishes.

See here for the background. Daily Kos has characterized the Florida lawsuit as being about refusing federal Obamacare dollars while demanding federal non-Obamacare dollars, which strikes me as apt. Easy to see why it was irresistible to Texas to join in. Ed Kilgore has more.

Davis officially supports same sex marriage

Right on.

Sen. Wendy Davis

Sen. Wendy Davis

Sen. Wendy Davis said Thursday that she supports same-sex marriage and that Attorney General Greg Abbott, her presumed general-election opponent in the race for governor, should stop defending the state’s ban.

“It’s my strong belief that when people love each other and are desirous of creating a committed relationship with each other that they should be allowed to marry, regardless of their sexual orientation,” Davis told the Express-News editorial board.

Davis, D-Fort Worth, said she is “pleased” that the state’s constitutional definition of marriage, as being between a man and a woman, is under challenge in federal court.

“I think that what we see happening at the federal level in terms of constitutional interpretations on that provide some hope that it may be found unconstitutional,” she said.

The Republican attorney general’s office is defending the constitutional provision.

Asked if she would call on him to stop doing so – as she earlier called on Abbott this week to reach a settlement in a state school funding lawsuit – Davis said that “makes perfect sense. We’ve seen that happen.”

She cited such decisions by Virginia and Nevada.

“Obviously our AG has the capacity to do the same if he chooses to do so,” she said. Asked if she would call on him to do so, she said yes.

Damn right. And another reminder, as if one were needed, of how important the elections this year are. The next AG will be inheriting a lot of ongoing litigation from Greg Abbott. Some of those lawsuits really ought to be dropped or settled, as they’re little more than ideological crusades that can have unexpected costs. One of the consequences of this election will be whether or not there’s any momentum for settling these cases and dialing back the activism. In the specific case of same sex marriage and the litigation over it, it’s also a matter of recognizing that the state of Texas is clearly on the losing side of the argument. We can come to terms with that now, or we can be like Ted Cruz and the state of Kansas and be forced to come to terms with it later. Wendy Davis has chosen wisely, and we should all be happy about that. Lone Star Q and Texpatriate have more.

UPDATE: Just in time for Virginia’s same sex marriage ban to be declared unconstitutional. I’ll have a full post on that tomorrow.

What about A&M?

On the one hand, there’s evidence to suggest that the Aggie faithful want to sever ties with UT and go East.

SEC commissioner Mike Slive visited College Station on Saturday, according to Billy Liucci’s Maroon & White Report, and A&M potentially could call a regents meeting for later in the week, a school official said Saturday.

The bottom line is it appears many Aggies, including some near or right at the top of the A&M food chain, are willing to risk their team getting battered for a time while the program adjusts to the brutally tough SEC.

“We’ve just gotten a sense that A&M feels it’s a better match for the SEC,” said state Sen. Leticia Van de Putte, D-San Antonio, of politicians trying to take A&M’s temperature.

[…]

A&M hasn’t finished in the Associated Press Top 25 this century and has had trouble enough competing in the Big 12. The Aggies also have had their hands full with their most recent encounters with the SEC. Tennessee whipped A&M 38-7 in the Cotton Bowl five years ago, and last season, Arkansas (47-19) and Georgia (44-20) both beat up on 6-7 A&M.

Neither the Razorbacks nor Bulldogs competed for a title in their respective SEC divisions. Still, the pro-SEC faction at A&M figures the Aggies’ recruiting classes will improve greatly, with the promise to youngsters in Houston, Dallas and San Antonio that they’ll be playing in the nation’s premier league — while staying in their home state.

On top of that, state Rep. Jim Dunnam, D-Waco, said that if the Big 12 had to break up, the SEC makes more sense than the Pac-10 for fans in this part of the country.

“You can road trip to Mississippi,” he said. “You can’t really do that to California.”

Congressman Joe Barton, an A&M alum, thinks the SEC is the best fit for the Aggies, too. On the other hand, there’s one prominent Aggie who has not yet spoken up, and politics may make him push the school West.

Texas Gov. Rick Perry will have a decisive say in which conference his alma mater, Texas A&M, joins and he probably prefers the Aggies link with Texas and other Big 12 schools and accept invitations to the Pac-10 Conference, two long-time political figures told the Statesman.

“Anybody who thinks Rick Perry is not going to sign off on the final decision is fooling himself,” one of the sources said. “A&M will go where the governor wants them to go.”

The second source said Perry, a former Texas A&M yell leader, does not want to do anything to disrupt his re-election plans and consequently might try to push the Aggies toward the Pac-10 to calm the political waters. Perry has said he’d prefer to keep all the Texas schools together.

“Perry’s political team has told him that the one thing that could beat him (in the November election) is to get involved in a football fight,” the long-time political observer in Austin said Saturday. “He doesn’t want to tick off Texas Tech and the Longhorns. The least amount of political downside is for A&M to join the Pac-10.”

Interestingly, at least some Baylor fans are already upset with the Governor for not fighting to keep the Big XII, or at least the Big XII Texas schools, together. I don’t think that will amount to much, but I could see a UT/A&M divorce (and a Tech/A&M divorce) having some blowback. This is all assuming that the Aggies were to get an invitation to join the SEC, something they don’t have yet.

One thing everyone agrees on is that the Aggies only have so much time to make a decision before the PAC 10 makes it for them by inviting someone else. That Chron link mentions Utah as a possible alternate choice for the PAC 10, while that last link suggests Kansas. There are other possibilities for Kansas as well.

Kansas, Kansas State and Missouri could be playing in the Mountain West, according to the Fort Worth Star-Telegram. Interestingly, Baylor is not part of the equation amid strong opposition from MWC member TCU.

[…]

What seemed interesting Saturday was word that the schools that will be left behind once the Big 12 dissolves finally began to draw some serious interest. The five left-behind schools are believed to be exploring every possibility from sticking together in what will be a diluted Big 12 to banding together to become influential members in a non-BCS conference.

Kansas, however, could be out of the equation which would all but leave the four scrambling. There has been a great deal of speculation that if Texas A&M does not join the Pac-10 then Scott will extend an invitation to the Jayhawks. Initially it was thought that Kansas could not separate from Kansas State but that has changed with everyone in panic mode.

“Look at it this way,” KU coach Bill Self said to The Kansas City Star on Friday. “No matter what, I’m 100 percent confident we’re going to land. And we may land in a group that gives us more exposure than we ever could have had before. We may land with somebody that opens up recruiting doors in areas that we never really tested before. We’re not gonna lose what we already have. This may open up new avenues for us.”

I don’t know what TCU’s animus towards Baylor is all about – resentment that Baylor was in the Big XII to begin with while TCU got stuck with the WAC before moving to C-USA and then finally the MWC, I suppose – but if you can get past the idea of Kansas being a “mountain” state – which, let’s face it, is no more ludicrous than Oklahoma being a “Pacific” state – the MWC makes some sense. It’s the closest fit geographically, and who knows, the MWC may wind up as a BCS conference out of this now that there will be one fewer in existence. Justin has been banging the drum for the Big East to grab Kansas, and that certainly makes sense from a basketball perspective. But if one thing is clear in all this, it’s that basketball considerations have not been part of the equation in all of the conference shuffling of late.

I don’t see how college sports are better when Nebraska has to start new rivalries so it can get a bigger chunk of TV money. I don’t see how putting Texas and Washington State in the same league makes this enterprise more compelling for anybody.

And since this is all being done for TV money, it is all about football. It is telling that in the last two decades, no league went after Kansas, Kentucky, Duke or North Carolina. College basketball, a national obsession every March, is not even part of this discussion. And if the school presidents aren’t giving a thought to basketball, you can be sure they don’t care a bit about the various soccer players, lacrosse players, sprinters and swimmers who will be going pro in something other than sports.

It’s interesting to me to see 16-team conferences becoming the new hotness. As a Rice fan, I have some experience with such things, as Rice wound up in what was then a 16-team WAC back in 1996. The original conference added six teams – SWC leftovers Rice, SMU, and TCU, plus UNLV, San Jose State, and Tulsa – and went to two divisions with a championship game. That lasted three years, before a group of original WAC members decided it was too much and split off to form the MWC. (Certain current PAC 10 members might want to note that when they did this, they took new school UNLV with them while leaving longtime members UTEP and Hawaii behind.) There were complaints about diluted rivalries, too much travel, mismatched academic standards. If any of this sounds familiar, just file it away for future consideration. Maybe the future PAC 16 will be the only conference to go that big, but whatever the case, the point I’m making is that it’s been done before, and that experience should give anyone pause. I for one am planning to laugh my rear end off if that history winds up repeating itself.