JEFFERSON CITY, Mo. (Dec. 12, 2015) – A Missouri bill prefiled for the 2016 legislative session would create the foundation to organize a compact of states dedicated to nullifying EPA emission regulations. But while conceptually strong, there exists little likelihood that the compact would ever come into existence because it requires congressional approval.

Rep. Eric Burlison prefiled House Bill 1470 (HB1470) on Dec. 1. If passed, it would create the Interstate Power Compact “to protect member states’ sovereignty and assurances granted under the Tenth Amendment with regard to the prevention and control of air pollution.”

The bill specifically defines the function of this interstate compact.

“The purpose of this compact is protect member states’ sovereignty and the assurances granted under Amendment X of the Constitution of the United States. In accomplishing this, member states shall work in isolation, or with other member states, to formulate plans for restoring the primary responsibility fo state and local governments in the prevention of air pollution and the control of air pollution at its sources…Member states agree that section 111(d) of the Clean Air Act lacks a statutory and constitutional foundation.”

States belonging to the compact would be prohibited from filing state plans to the EPA unless the filing involved emission limits or budgets based only on existing generating capacity and technology. The compact then goes on to prohibit the EPA from imposing any measure under a federal plan if the member state has not filed a fully approvable state plan. This would set the stage to nullify EPA regulations.

The goals and intent of the compact are commendable, and the fact that it recognizes the illegitimacy of these EPA regulations rests on rock solid constitutional ground. But even if HB1470 passes and other states sign on to the agreement, Congress will never approve the compact. The federal government simply isn’t going to hand over power to regulate air pollution to state governments.

It should.

If it cared about the Constitution it would.

In reality, it won’t.

But that doesn’t leave states without recourse. They can simply refuse to cooperate with the enforcement of any EPA regulations. The federal government depends on state cooperation and enforcement. Absent that, it becomes very difficult for them to impose their will. It doesn’t take a congressionally approved compact to do this.

In fact, legislators in both Florida and Virginia will consider bills in the upcoming session that would set the stage to nullify EPA regulations.

HB1470 is based on the right idea. But instead of begging Congress to let them resist the EPA, states should just individually take action and do it themselves. If enough states tell the EPA to pound sand, states can ultimately nullify these unconstitutional mandates in practice and effect.

Mike Maharrey

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