CHARLESTON, W.Va. (March 25, 2016) – On Wednesday, Gov. Earl Ray Tomblin signed a bill into law that takes a small, but important, first step in setting the foundation to reject federal EPA “Clean Power Plan” rules.

Sen. Gregory Boso (R-Summersville) introduced Senate Bill 691 (SB691) on Feb. 22. The legislation would prohibit the Department of Environmental Protection from unilaterally implementing EPA “Clean Power Plan” emission requirements.

SB691 passed the House by a 100-0 vote. It cleared the Senate on March 1 34-0.

Under the new law, the Department of Environmental Protection will be required to submit a report to the legislature regarding the feasibility of the state’s compliance with any EPA directive. If the department determines that the creation of a state plan is feasible, it will be required to develop and submit the proposed state plan to the legislature before submitting it to the EPA. It will also be required to publish the report for the public. The legislature will then have the option of acting in several ways.

“If the department submits a proposed state plan to the Legislature under this section, the Legislature may by act, including presentment to the Governor: (i) Authorize the department to submit the proposed state plan to the Environmental Protection Agency; (ii) authorize the department to submit the state plan with amendment; or (iii) not grant such rulemaking or other authority to the department for submission and implementation of the state plan.” [Emphasis added]

SB691 includes specific criteria the Department of Environmental Protection must take into consideration when completing its report and submitting a state plan.

While the new law will not guarantee the state will reject compliance with EPA mandates, it sets the foundation to do so. It also brings the entire process into the public spotlight, allowing West Virginia residents to have input into the process.

As it previously stood, the Department of Environmental Protection and the EPA could work behind the scenes to adopt such plans without any public or legislative input at all. The department acts, in practice, like a part of the federal government. SB691 reasserts some state authority over the Department of Environmental Protection and the entire process.

With the federal courts putting a “pause” on federal implementation of some of the Clean Power Plan, SB691 represents a good first step toward fully blocking unconstitutional EPA Clean Power Plan mandates. Passage into law begins to place the process back in the hands of the state, thus diminishing the power of the federal agency. The new law also sets the stage for more aggressive action such as refusing cooperation with the enforcement of EPA rules and regulations.


Mike Maharrey

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