FRANKFORT Ky. (Dec. 10, 2015) – A bill prefiled in the Kentucky House would take a first step and set the stage to nullify some federal EPA regulations in practice.

Rep. Jim Gooch (D-Providence) prefiled HB104 on Dec. 9. The legislation would bar the state Energy and Environmental Cabinet from promulgating any administrative regulations or imposing any permit conditions on the emission of carbon dioxide under any federal rule or federal plan until approved by the state legislature, or until Congress designates carbon dioxide a criteria pollutant under the Clean Air Act.

While passage of the bill would not necessarily end state cooperation with EPA mandates, it would set the stage by giving the legislature veto power over any plan.

HB104 expands on current Kentucky law. A statute already in place prohibits the state cabinet from regulating carbon dioxide based on standards imposed pursuant to the Kyoto Protocol without legislative approval.

The final section of the bill uses language reminiscent of the immigration debate to describe the state’s position regarding EPA regulation, calling Kentucky a “sanctuary state.”

“The Kentucky General Assembly declares the Commonwealth of Kentucky as a sanctuary state from the overreaching regulatory power of the United States Environmental Protection Agency with respect to the implementation of federal rules to reduce carbon dioxide under 40 C.F.R. Part 60.”

While passage of the bill 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 Kentucky residents to have input into the process.

As it currently stands, the Kentucky Energy and Environmental Cabinet and the EPA work together behind the scenes to adopt CO2 emission plans without any public or legislative input at all. The state cabinet acts, in practice, like a part of the federal government. HB104 reasserts some state authority over the cabinet and the entire process.

This approach represents a good first step toward blocking unconstitutional EPA mandates. It begins to place the process back in the hands of the state, thus diminishing the power of the federal agency. It also sets the stage for more aggressive action such as refusing cooperation with the enforcement of EPA rules and regulations. That, of course, would depend on the spine of the Kentucky legislature.

Bills prefiled in Florida and Virginia would take similar first steps. It appears there is momentum building at the state level to push back against these unconstitutional EPA mandates. If enough states simply refuse to submit plans to the EPA and ultimately don’t enforce the mandates, the federal government would likely find it impossible to enforce its will.

Once the regular session starts in January, HB104 will be referred to committee for consideration.

Mike Maharrey

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