At least two states will consider bills in the upcoming legislative session that would take a small, but important, first step in setting the stage to nullify federal EPA rules and regulations.
Legislation in both Virginia and Florida would essentially insert another layer into the state process involved in adopting plans to address EPA emission mandates. They would end direct planning and collaboration between the EPA and state agencies without direct public involvement.
Currently, EPA works directly with state agencies to implement federal regulations and programs. This generally pushes almost the entire process behind the scenes, with little to no public involvement. The state agencies, essentially act as arms of the federal EPA, and these bills take an important first step towards reversing that trend.
Virginia House Bill 2 (HB2) would require the Virginia Department of Environmental Quality (DEQ) to prepare an extensive report highlighting the impact of any plan to comply with EPA emission requirements before implementing it. The legislation includes a long list of factors the report must address, including the impact on the state power grid, the effect on consumer prices and the cost of adopting the measures.
The state legislature would then be required to vote whether or not to approve the plan based on the information in the report. Under the proposed law, implementation of any measures to comply with EPA mandates would be subject to legislative approval.
While this does not guarantee the state would reject compliance with EPA mandates, it sets the stage to do so. It also brings the entire process into the public spotlight, allowing Virginia residents to have input into the process.
As it currently stands, the DEQ and the EPA work behind the scenes to adopt such plans without any public or legislative input at all. The DEQ acts, in practice, like a part of the federal government. HB2 reasserts some state authority over the DEQ and the entire process.
Florida Senate Bill 838 (S0838) takes a different tact to potentially block implementation of EPA mandates. The legislation would bar the state from implementing rules or regulations, or from submitting to a state or multistate implementation plan that limits or attempts to limit carbon dioxide emissions based on EPA mandates unless Congress specifically “enacts legislation regulating limiting carbon dioxide emissions from existing stationary sources,” or a federal court issues a final ruling “upholding the legality of regulations addressing carbon dioxide from existing stationary sources issued pursuant to the Clean Air Act, 42 U.S.C. s. 7411(d).”
S0838 would stop the state from complying with mandates and rules issued unilaterally by the EPA, an unaccountable federal agency. While the legal basis is a bit squishy considering the fact no delegated power exists authorizing Congress to pass mandates limiting emissions either, it would still have a practical effect. Congress almost certainly won’t pass any such laws, and it will take years for the federal courts to reach a “final ruling,” if they do at all. As a result, this legislation would practically nullify EPA emission mandates in the Sunshine State for the foreseeable future.
THE WAY FORWARD
Both of these approaches represent good first steps toward blocking unconstitutional EPA mandates. They begin to place the process back in the hands of the state, thus diminishing the power of the federal agency. The also set the stage for more aggressive action such as refusing cooperation with the enforcement of EPA rules and regulations.
The Virginia bill appears to be a particularly promising model, as it doesn’t rely on any federal action. It provides a way to completely block federal emission plans and it provides a level of transparency into the process.
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