Category: The Current State

By Daniel Clothier

States must surmount various challenges when seeking to remedy a social issue. The state takes upon itself a significant degree of financial risks whenever engaging in new social/welfare programs. Therefore, financial and political constraints tend to guide policymaker’s actions and control the scope of these programs.

The Pay for Success (PFS) financial model introduces an alternative method for financing social programs. In this model, private investors provide funding to a nonprofit organization charged with tackling a public issue. The private investor is paid back, potentially at a profit, by the government if the project achieves the agreed upon results. The model is promising due to its ability to divert financial risk from taxpayers to private investors, should a project not achieve it’s intended outcome. Ideally, the PFS model can remove many of the constraints limiting the scope of innovative social programs.

Pay for Success is unique in its aim to capture return-seeking capital. By creating a profit incentive, the PFS model strives to use investment dollars to solve public issues. In theory, this will significantly increase the funds available for such projects. However, a report in the Stanford Social Innovation Review is skeptical that the PFS model is actually attracting return-seeking capital but instead is relying on impact-seeking capital. Philanthropy’s prominent role in recent PFS deals suggests this may be true. Furthermore, the report warns that “…the model is appropriate only for a narrow cohort of nonprofits that meet two related criteria: they must be able to effectively deliver and measure their social impact; and they must be able to translate that impact into financial benefits or cost savings that are traceable to the budgets of one or more institutions or government departments.”

Due to the potential and possible limits of PFS, the model may be currently more favorable to some state strategies than others. An evaluation of the costs and benefits of the program is therefore an important first step for states to identify if this model aligns with their capacity and policy priorities. With this in consideration, The CSG Healthy States National Task Force’s Fiscal Subcommittee recommends that states should assess Pay for Success models to fund health and human service programs[CS1] . Some states have already begun utilizing the model with promising results.

Utah’s High Quality Preschool Program seeks to provide a high-impact preschool education for low-income families. The program utilizes the Pay for Success structure for funding and partners with United Way of Salt Lake. Utah lacks a state funded preschool education and views this program as a way to mitigate future remedial or special education costs while reducing the taxpayer’s risk if the program is unsuccessful. Likewise, the Massachusetts Juvenile Justice Pay for Success Initiative brought together the state, Third Sector Capital Partners and Roca in what was one of the first PFS contracts in the country. Collectively, they sought to prevent recidivism in previously incarcerated youth. The PFS contract laid out clear benchmarks for Roca to reach regarding recidivism rates. Should these metrics be met, the state will disburse funding.

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By Cassidy White

Title II: Conservation

The Conservation Title (Title II) of the Farm Bill authorizes voluntary programs that help farmers and ranchers implement natural resource conservation efforts on private land. Such programs allow for improved productivity while simultaneously addressing natural resource and environmental concerns.

Over the years, Title II has encompassed various programs, including wetlands conservation, environmental easement (a nonpossessory right to use and/or enter onto the real property of another without possessing it), integrated farm management, wildlife habitat incentives, conservation of private grazing land and even provision of technical assistance related to the implementation of such programs. Programs can be grouped into the following categories: working land programs, land retirement programs, easement programs, partnership and grant programs and conservation compliance.[1]

The most recent Farm Bill (2018) reauthorized and amended portions of most conservation programs; however, the focus was on the larger programs, namely the Conservation Reserve Program, Environmental Quality Incentives Program and Conservation Stewardship Program.

What is the Conservation Reserve Program (CRP)? CRP is the largest land retirement program. Farmers enrolled in the voluntary program receive an annual rental payment and agree to (1) remove environmentally sensitive land from agricultural production and (2) plant species that will improve environmental health. Contracts are typically written to ensure coverage between 10-15 years.[2]

What is the Environmental Quality Incentives Program (EQIP)? Agricultural producers and non-industrial forest managers part of EQIP are provided financial and technical assistance so that they may address natural resource concerns. Benefits include improved water and air quality, conserved ground and surface water, increased soil health and mitigation against weather volatility. The length of an EQIP contract varies, but cannot exceed 10 years.[3]

What is the Conservation Stewardship Program (CSP)? CSP allows for tailored operation plans to bolster productivity and build on conservation efforts. CSP mainly focuses on provision of financial and technical assistance to producers so that they may maintain and improve existing conservation systems.[4] The National Sustainable Agriculture Coalition highlights that, “By providing comprehensive conservation assistance to whole farms, CSP offers farmers the opportunity to earn payments for actively managing, maintaining and expanding conservation activities like cover crops, rotational grazing, ecologically-based pest management, buffer strips and the transition to organic farming – even while they work their lands for production.”[5] Benefits of participating include enhanced resiliency to weather and market volatility, decreased need for agricultural inputs and improved wildlife habitat conditions.

Why should state leaders care about Title II programs?

Title II programs can reap numerous benefits, both locally and nationally. These initiatives support local farmers across various states, which in turn impacts both food and national security. The Conservation Title helps ensure a safe and vast food (as well as fiber and fuel) supply, invigorates rural communities and champions farmers to care for the environment as they engage in their critical work. State leaders must remain cognizant of the various programs and the many benefits they might provide to their constituents while also serving the larger population.  

Moreover, fifty percent of the United States is cropland, pastureland and rangeland owned and managed by farmers and their families.[6] As such, much of our land and water-based solutions to climate change sit in the hands of farmers, ranchers and other private landowners.[7] Importantly, only 2.1 million out of a population of 327 million people are farmers; we rely on a small number of individuals to produce what we eat and how land is managed.[8] State leaders will likely want to remain abreast of these programs directly impacting the communities they represent and serve, as well as – less directly – the entire nation.

Senator Saxby Chambliss, who served on the Senate Agriculture Committee during the crafting of the 2008 farm bill, shared that “Any number of economic policies that we establish in farm bills impact everybody’s daily lives.”[9] Senate hearings for the 2023 farm bill are underway, with the first field hearing taking place on April 29, 2022, in Michigan. Senator Debbie Stabenow (D-MI), Chairwoman of the Senate Committee on Agriculture, Nutrition, and Forestry, listed conservation programs as a major concern for the new farm bill.

Each state and its residents are impacted by Title II of the farm Bill in one way or another, and state leaders should take note.

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[1] https://crsreports.congress.gov/product/pdf/IF/IF12024

[2] https://www.fsa.usda.gov/programs-and-services/conservation-programs/conservation-reserve-program/

[3] https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/financial/eqip/

[4] https://www.everycrsreport.com/files/2019-05-03_IF11199_1abf91e5ef60e8066572ab324e14d521a579e571.pdf

[5] https://sustainableagriculture.net/publications/grassrootsguide/conservation-environment/conservation-stewardship-program/ 

[6] https://www.trcp.org/farm-bill/

[7] https://www.trcp.org/farm-bill/

[8] https://blog.ucsusa.org/elliott-negin/farm-bill-and-everyday-americans/

[9] https://kansasreflector.com/2022/08/13/farm-bill-season-arrives-whats-the-outlook-for-2023/

[10] https://www.farmers.gov/sites/default/files/documents/FarmBill-2018-Brochure-11×17.pdf

Voter registration rolls are the official record of all eligible voters in a state and are the foundation of free, fair and accurate elections. However, maintaining and updating voter rolls can be costly and inefficient.

The Electronic Registration Information Center (ERIC) is a non-profit, member-led organization established in 2012 to assist states in ensuring voter rolls are accurate and voting processes are accessible. Seven states—Colorado, Delaware, Maryland, Nevada, Utah, Virginia and Washington—started the center with the help of The Pew Charitable Trusts. ERIC allows states to use state-of-the-art data matching technology with robust, widely accepted information security standards to identify inaccurate and outdated voter registration information.

Which states are part of ERIC, and why?

Since 2012, 25 states and Washington, D.C. have joined the seven founding states, bringing the total number of participants to 33.

The current members: Alabama, Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, Nevada, New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, Vermont, Virginia, Washington state, Washington D.C., West Virginia and Wisconsin.

As part of their membership, participants agree to share voter registration and motor vehicle licensee data with one another. By sharing this data, states are able to determine if voters have moved out of state, have duplicate registrations in the state or have died. States can then update their voter rolls accordingly. In the case of a voter moving out of state, the pre-existing system requires that a voter notify the state that they have moved, or alternatively requires the state to follow the process outlined by the U.S. Supreme Court in Husted v. A Philip Randolph Institute (138 S.Ct. 1833, 2018). In this case, the court confirmed Ohio’s procedure of removing a voter from its rolls after (1) a failure to vote for two years, (2) a failure to return a notice card, and (3) a failure to vote for four additional years was sufficiently rigorous under the National Voter Registration Act of 1993 and its amended versions The goal is to collaboratively develop more efficient and effective mechanisms for collection and recording voter data.

What are the benefits of ERIC?

ERIC provides reports that can help states identify unregistered voters, save money and help detect and respond to voter fraud. Between 2012-2017, ERIC used the data collected and shared to identify 26 million eligible voters who had not yet registered. Member states were required to mail election information to these potential voters. The response rate was estimated to be 10-20%, according to The New York Times. In that same timeframe, ERIC identified more than 8.4 million inaccurate individual voter registrations.  

As a part of membership in ERIC, states are required to act on all reports in accordance with federal law. ERIC utilizes resources such as the Social Security Death Index and data from the United States Postal Service that non-member states must buy on their own. Moreover, ERIC membership results in less returned mail and a reduction in the number of provisional ballots on election day, which means shorter waits at polling places. Provisional ballots are often issued as a failsafe when a voter arrives at a polling location and is not on the precinct’s voter rolls. After the location closes, the polling location will work to establish the voter’s eligibility to vote at that location. States who are members of ERIC are able to more readily identify instances in which a voter has moved and thus has multiple voter registration records. This also allows states to easily notify voters that their voting precinct has changed, ensuring they are showing up to vote at the correct location.

Finally, member states may request a report identifying voters who appear to have voted twice within the state in the prior federal election, voted in more than one state in the prior federal election or who voted on behalf of a deceased voter in the prior federal election.

ERIC is a state member-led organization that is focused on improving voter list maintenance and helping states conduct free, fair and accurate elections. Their work helps ensure elections are conducted efficiently while also identifying voter fraud.

By Sandi Abdelshehed

The COVID-19 pandemic emphasized the need to close the digital divide and ensure broadband access empowers people to stay connected to services that are offered digitally, such as education and health care.

In an effort to highlight ways states can best plan for and invest in broadband access, the Economic and Workforce Health Subcommittee of The Council of State Governments Healthy States National Task Force issued a recommendation that “States should consider creating multi-stakeholder, multi-agency task forces (with the intent of permanent offices[BS1] [SA2] ) dedicated to broadband coordination that include private sector telecommunication companies and co-ops.”

The connection between broadband access and related public policy goals requires the involvement of public agencies and the private sector; departments of education, economic development and public health; offices of emergency services; and other stakeholders invested in broadband expansion and sustenance. Dedicated state broadband programs can ensure collaboration in the allocation of resources and efforts toward efficiently and effectively expanding broadband access. For example, statewide broadband programs can provide input on the development of a broadband framework, promote public-private sector participation, create broadband maps, administer and assist with funding programs and improve digital literacy. Since each state has its own broadband needs, the benchmark for broadband project success differs based on the state’s needs for speed and coverage and agreed upon timelines.

States can establish broadband programs in the form of offices, agencies or task forces.. Some states, such as California and Minnesota, have established statutory goals, while states such as North Carolina[BS3]  and Virginia, outlined their goals in broadband plans. These state programs are especially critical in the management of federal financial support for broadband in the Infrastructure Investment and Jobs Act and the American Rescue Plan Act of 2021.

There are at least 35 states that established governance structures in statute. Florida established an Office of Broadband within the Department of Economic Opportunity’s Division of Community Development in July 2020. The office works with state and local government agencies, community organizations and private businesses to increase the availability and effectiveness of broadband throughout the state, specifically in small and rural communities. Through these partnerships, the office provides grant funding opportunities. Colorado formed a Broadband Office through the Governor’s Office of Information Technology in 2016. The broadband office oversees and coordinates activities across state agencies to enable the development of a statewide digital communications infrastructure through public-private partnerships. This is designed to fulfill the growing demand for broadband access in the key sectors of public safety, education, health care and transportation.

These state broadband programs are critical to closing the digital divide by ensuring that underserved and unserved areas and communities have affordable access to a high-speed, reliable network.

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The U.S. Supreme Court heard oral arguments in Sackett v. Environmental Protection Agency on Monday, Oct. 3.

This dispute began in 2007 when the Sacketts (private citizens) wanted to build a home on their property. The Environmental Protection Agency directed the Sacketts to halt construction because the property contained wetlands. The Clean Water Act gives the agency the authority to regulate “navigable waters”, which is defined in the act only as “waters of the United States.” The agency currently interprets its mandate to include protecting wetlands, such as marshes and swamps.

The Clean Water Act was passed by Congress in 1972 based on its power to “regulate commerce among the several states” under Article 1 of the U.S. Constitution. The act is justified by the need to protect the environmental integrity of waterflows in the U.S., which are essential to commercial activity involving every state.

The question in this case is not whether the Clean Water Act is constitutional. Instead, the question is whether the agency can interpret “navigable waters” to include marshes in the absence of clear direction from Congress. The dispute comes from the fact that the wetlands here do not directly flow into another body of water and are therefore not an active part of interstate commerce.

It is a fundamental principle of American law that states cannot regulate an area of policy where the federal government already regulates. Therefore, if wetlands are under the authority of the federal government, they are not subject to overlapping state regulation. A decision, in this case curtailing the authority of the Environmental Protection Agency, would open the door for more state government decision making.

However, even though the federal government’s regulation of waterways is tied primarily to economic activity, it also is about refereeing disputes among states. Since the founding of the U.S., there has been concern about a state making decisions regulating a waterway within its borders that have implications for another state “downstream.”

This case, and its potentially dramatic implications, is reflected by the fact that twenty-six states collectively and Alaska individually have filed legal briefs supporting the Sacketts. “By construing the Clean Water Act to reach places with only tenuous connections to navigable, interstate waters,…[the Environmental Protection Agency] would saddle States with implementing a vast scheme of federal water regulation. States’ own efforts at conservation, tailored to local needs, would fall by the wayside.” 

But the division among the states is equally clear, as seventeen states and Washington D.C. collectively and Colorado individually, have filed legal briefs supporting the Environmental Protection Agency. “Each of the forty-eight contiguous States contains waters that are downstream from other States and thus relies on the [Clean Water Act’s] federal standards to protect their waters from pollutants that are discharged into wetlands in upstream States.”

Traditionally, the courts have given executive branch agencies a lot of leeway to interpret the will of Congress when statutory language is vague. This is known as “Chevron deference.” The Supreme Court ruled in Chevron U.S.A., Inc. v. Natural Resources Defense Council in 1984 that when a statute is ambiguous, courts should defer to executive branch agency interpretation as long as it is reasonable. However, the Supreme Court has grown more skeptical of agency power and become less willing to defer. For example, last June 30 the court ruled against the Environmental Protection Agency in a case involving its exercise of regulatory power under the Clean Air Act.

During oral argument in Sacket v. Environmental Protection Agency on Oct. 3, the Sackett’s attorney told the court that navigable waters should be defined to only include waters that flow into other waters – therefore potentially involved in commercial activity. Several justices seemed concerned that if the agency could regulate a body of water, even if it did not connect to any other body of water, there would be no limit to the agency’s authority. There was extended discussion of whether it matters if two bodies of water are not connected but are adjacent to one another; or if the barrier between them is manufactured or natural. The justices also wondered about the implications for private landowners who might inadvertently violate federal policy as they develop their property.

But some of the justices seemed skeptical of the Sackett’s argument. For example, Justice Brett Kavanaugh noted that in the 50 years since the act was passed, the agency has consistently said wetlands and other waters are covered, even when they do not flow into other waters. Near the end of the argument, Justice Kavanaugh wondered whether bringing clarity to the language of the act was the responsibility of Congress rather than the courts.

Most of the justices seemed to be struggling with how to best achieve a balance between protecting U.S. waterways and protecting private property ownership. Interestingly, the government attorney noted to the justices that the Environmental Protection Agency was working on a new rule regarding navigable waters and wetlands that would clarify situations like the one at issue in this case. The goal is to issue the new rule by December.

It is impossible to predict what the court will do in any given case, but it may be that a new rule would further clarify the meaning of “navigable waters” thus allowing private citizens like the Sacketts to move forward in developing their property. The new rule could retain substantial portions of the agency’s authority over waterways. Such a rule may allow the Supreme Court to withdraw from the dispute, seeing it as already settled.

Please note The Council of State Governments (CSG) is a nonpartisan organization and therefore takes no position on state legislation or laws mentioned in linked material, nor does CSG endorse any third-party publications; resources are cited for information purposes only. CSG provides unbiased research that is based on evidence-informed and objective analysis.

Executive Summary

A growing number of states are implementing strategies to address unforeseen environmental and economic issues with managing the waste generated by solar panels. End-of-life care for solar panels and related equipment is complicated by the presence of environmental toxins (like cadmium and lead) and valuable resources (like silicon and silver). Due to the 20-30 year expected lifespan of solar panels, states are developing strategies for mitigating the financial loss and public health dangers associated with sending solar panel technology directly to landfills. These strategies include 1) the development of solar panel decommissioning boards that work with environmental protection agencies; and 2) requirements that commercial facilities produce decommissioning security bonds.

Method of Research

CSG conducted a 50-state scan of legislation enacted in current and past sessions using FiscalNote. This scan was conducted by searching for bills referencing “solar panel decommissioning,” “solar panel recycling” and other relevant key words. The bill number and summary have been included in the table below.

Findings and Analysis

At least 11 states have recently passed legislation related to solar panel waste. Common policies range from the formation of review committees that report on best practices for solar panel waste management to requirements that large-scale solar facilities submit securities, deposits or decommissioning plans prior to commercial operation. Most statewide policies focus on regulation of waste at the commercial level and place liability on the owners of facilities using solar panels. States like Maine also place additional taxes on solar panels used for small-scale home operations to account for recycling costs. It is important to note that many states handle specific waste and recycling procedures at the local level, so a survey of enacted legislation cannot entirely capture the diversity in policy initiatives.[1]

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Enacted Legislation Regulating End-of-Life Solar Panel Care

State	Bill number	Summary of Relevant Content
Hawaii	House Bill 1333	Commissions the Hawaii Natural Energy Institute and Department of Health to study and determine best practices for recycling or disposing of solar panels and related equipment. The study is to include information on the type, composition and number of solar panels that will be disposed of; best practices for decommissioning to maximize environmental and economic benefits; and an assessment of potential solar panel disposal fees to support state efforts.
Illinois	Senate Bill 3790	Establishes a 15-member Renewable Energy Component Recycling Task Force to develop recommendations by July 2025 for the executive, legislative and private sector on end-of-life management strategies for renewable energy generating equipment, including that used to gather and store solar energy (e.g., identification of needed infrastructure, regulatory requirements of other jurisdictions and the safest/most effective methods of disposal).
Indiana	Senate Bill 411	Requires commercial solar facilities and commercial solar energy systems to submit a security bond equal to 25% of the cost of decommissioning prior to commercial operation. By the 10th anniversary of operation, the owner of a commercial solar facility must post 100% of decommissioning costs as a security bond. Facilities must notify authorities of the intent to decommission the solar facility 60 days prior to decommissioning and adhere to a one-year decommissioning timeline or risk being fined.
Maine	House Policy 1184/ Legislative Document 1595	Prohibits disposal of solar equipment, including solar panels, in landfills and dumps as electronic waste. Purchased panels will incur a $125 fee, $25 for tracking and $100 for recycling. Decommissioned panels must be recycled at a site designated by the Department of Environmental Protection. Any property harboring solar panels must retain insurance that covers the cost of recycling should a catastrophe make it necessary.
Montana	Senate Bill 93	Requires that new commercial solar facilities capable of producing more than two megawatts of energy submit a decommissioning plan and security bond within 12 months of beginning operations. Existing facilities must produce decommissioning plans and security bonds for retroactive application. Allows the Department of Environmental Quality to seize bonds and commence decommissioning on abandoned facilities and directs resources to a pre-existing wind and solar decommissioning account
New Jersey	Senate Bill 601	Establishes the New Jersey Solar Panel Recycling Commission to develop strategies that could be implemented by the executive, legislative or private sector to manage end-of-life solar panel recycling and produce a public report. Authorizes the state Department of Environmental Protection to utilize its authority under the Administrative Procedures Act to set rules and regulations regarding end-of-life solar panel care.
Ohio	Senate Bill 52	Requires that “large solar facilities” submit an engineer-approved decommissioning plan of less than 12 months duration for disposing of solar panel equipment and restoring land prior to constructing the facility. Plans must be updated every five years and applicants for large solar facilities must post a performance bond to ensure they will be able to fund the decommissioning of their facility.
South Carolina	House Bill 525	Directs the South Carolina Department of Health and Environmental Control to develop guidelines on decommissioning standards for photovoltaic modules and energy storage system batteries for solar farms exceeding 13 acres; new solar farms over 13 acres must submit end-of-life plans for technology.
Tennessee	Senate Bill 2797	Directs the Tennessee Advisory Commission on Intergovernmental Relations to oversee a study on the viability of large-scale solar development in the state. The study must include information on federal regulation of solar equipment decommissioning, a survey of state statutory regulations and an examination of owner and operator financial obligations in solar panel decommissioning.
Virginia	Senate Bill 499	Establishes a task force involving the Virginia State Corporation Commission, Department of Energy and Department of Environmental Quality to analyze best practices for end-of-life care of solar panels, including liability for decommissioning costs and feasibility of recycling projects.
West Virginia	Senate Bill 492	Requires that commercial solar facilities capable of producing one megawatt of energy submit a bond sufficient to decommission solar panels and related equipment should the equipment be abandoned. Establishes a fee of $100 per new application and $50 per application modification to be paid to a pre-existing wind and solar decommissioning account. Allows the Department of Environmental Protection to seize bonds from abandoned solar facilities and establish necessary regulations.

Other Resources

• Environmental Protection Agency – End-of-Life Solar Panels: Regulations and Management
• National Renewable Energy Laboratory – Solar Photovoltaic Module Recycling: A Survey of U.S. Policies and Initiatives

The U.S. Supreme Court convened Monday, Oct. 3 to begin its 2022-23 term. State policymakers are gearing up to hear several cases in which states are participants. In the coming weeks, CSG will provide further analyses of these and other disputes as they come before the court.

Case: Delaware v. Pennsylvania and Wisconsin

Background: MoneyGram Payment Systems is a national company incorporated in Delaware. The company markets what it calls “official checks” that can be used in financial transactions. Customers pay for the amount of the checks, plus a transaction fee. In 2016, MoneyGram gave unclaimed checks to the government of Delaware.

Legal Issue: The federal Disposition of Abandoned Money Orders and Traveler’s Checks Act requires that “…a money order, traveler’s check, or other similar written instrument (other than a third party bank check)…” that goes unclaimed is the property of the state in which the check was purchased. Pennsylvania and Wisconsin argue the checks are covered by the federal act so unclaimed checks purchased in their states are their property. MoneyGram and Delaware argue the checks at issue are “third party” checks and are Delaware property, according to state law. As much as $150 million in unclaimed checks is at stake. Are the checks subject to federal law?

State Participation: Twenty-seven states have joined Pennsylvania and Wisconsin as parties in the case.

Case: Mallory v. Norfolk Southern Railway Company

Background: Robert Mallory sued Norfolk Railway Company in Pennsylvania state court, claiming that he contracted cancer because he was exposed to toxic chemicals as an employee of the company. The company is headquartered in Virginia, but is registered to do business in Pennsylvania. Mallory is not a Pennsylvania resident and he does not allege his injury occurred in the state.

Legal Issue: Does a company consent to be accountable to a state court system when the company registers to do business in the state?

State Participation: Eight states have filed a legal brief supporting the company.

Case: Moore v. Harper

Background: The North Carolina state legislature adopted a new map for its federal congressional districts in November 2021. A group of officeholders and private organizations and individuals filed suit, claiming the map was a partisan gerrymander in violation of the state constitution. The North Carolina Supreme Court blocked the state from using the map and order the original trial court to adopt a new map. The trial court then adopted a map created by three people appointed by the court. The state legislature filed a petition with the U.S. Supreme Court requesting the original map be reinstated. The court declined to do so, but agreed to hear the case. The trial court-approved map is in place for the 2022 election cycle.

Legal Issue: The U.S. Constitution states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature.”The state legislature asserts this clause gives the branch exclusive authority on the drawing of maps. North Carolina state law says that state courts can hear “[a]ny action challenging the validity of any act of the General Assembly that apportions or redistricts State legislative or congressional districts.” Do state courts have a legal role to play in disputes over redistricting?

State Participation: Thirteen states have filed a legal brief supporting the North Carolina legislature.

Case: Merrill v. Milligan

Background: In 2021, the Alabama legislature designed the districts for the state’s seven seats in the U.S. House of Representatives. A group of private citizens sued, claiming the map is drawn to reduce the influence of Black voters in violation of the federal Voting Rights Act. A federal district court sided with the plaintiffs and ordered the map be redrawn. In February 2022, the U.S. Supreme Court put the district court’s order on hold and agreed to hear the case. The state legislature’s original map is in place for the 2022 election cycle.

Legal Issue: Does the legislative map violate the Voting Rights Act?

State Participation: Fourteen states have filed a legal brief supporting the Alabama legislature.

Case: National Pork Producers Council v. Ross

Background: In 2018, California voters approved a law that prohibits the sale of pork from pigs confined in ways that are inconsistent with California state regulations. The council sued, arguing that the California decision discriminates against pork producers in other states, where regulations on animal treatment differ.

Legal Issue: The U.S. Constitution states: “Congress shall have the power to regulate commerce among the several states.” Does the Constitution prohibit a state from passing laws that have a discriminatory economic impact in other states?

State Participation: Twenty-six states have filed a legal brief supporting the council. Fourteen states have filed a legal brief supporting California.

Case: Sackett v. Environmental Protection Agency

Background: The Sacketts (private citizens) have been prevented from building a home in Idaho because the Environmental Protection Agency raised concerns about the impact of construction on wetlands on the property.

Legal Issue: The federal Clean Water Act gives the EPA the authority to regulate pollutants dumped into “navigable waters.” Neither the act nor the Supreme Court have clearly defined the term, leaving it to the EPA to determine the scope of its authority. The Sacketts argue that the EPA is abusing its power under the act. Are wetlands subject to EPA authority under the Clean Water Act?

State Participation: Twenty-six states collectively and Alaska individually have written a legal brief supporting the Sacketts. Seventeen states and Washington D.C. collectively and Colorado individually have filed legal briefs supporting the EPA.

Case: U.S. v. Texas

Background: In September 2021, the U.S. Department of Homeland Security issued a memo prioritizing the deportation of three groups of undocumented individuals: suspected terrorists, people who have committed serious crimes and people caught at the border. Texas and Louisiana sued the federal government, claiming that the Biden administration was selectively enforcing federal immigration law in violation of federal administrative requirements. A district court blocked the administration from enforcing the new policy. The administration requested the U.S. Supreme Court intervene and lift the district court order. The Supreme Court declined to do so but agreed to hear the case.

Legal Issue: Does the Department of Homeland Security have discretion to prioritize particular individuals and groups in the application of federal immigration law? State Participation: Nineteen states filed a legal brief supporting Texas and Louisiana. Sixteen state and Washington D.C. and 21 local government entities filed a legal brief supporting the Department of Homeland Security.