HELENA, Mont. (Feb. 13, 2019) – Today, a Montana House committee held a hearing on a bill that would prohibit the state from implementing or enforcing any federal greenhouse gas regulatory program. Passage of the bill would set the foundation to nullify some EPA regulations in practice.

Rep. Joe Read (R-Ronan) introduced House Bill 415 (HB415) on Feb. 7. The legislation would prohibit any state agency from implementing or enforcing any federal regulation, rule, or policy imposing a federal greenhouse gas regulatory program. This would include any regulations promulgated by the EPA or any other federal agency, as well as future laws passed by Congress such as the “Green New Deal.” HB415 defines a “greenhouse gas regulator program” as “any arrangement under which a greenhouse gas emission source is required to account for or report greenhouse gas emissions. The term includes greenhouse gas emission limits and market-based compliance mechanisms.”

The legislation rests on an originalist understanding of the Constitution and its limits on federal power. HB415 declares:

“At the time the Constitution of the United States was ratified in 1788, Article I, section 8, of the Constitution of the United States was meant and understood not to grant Congress general police powers or the power to regulate the internal affairs of the states or their people, and these internal affairs include the regulation of greenhouse gases produced by biological, mechanical, or chemical processes, including refuse and agricultural operations.”

On Wednesday, the House Energy, Telecommunications and Federal Relations Committee held a hearing on HB415.

PRACTICAL EFFECT

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including environmental regulations. By simply withdrawing this necessary cooperation, states and localities can nullify in effect many federal actions. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.” [Emphasis added]

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” would be an extremely effective method to bring down unconstitutional EPA mandates as enforcement actions rely on help, support and leadership from state and local governments.

“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in the EPA’s regulatory schemes, states and even local governments can help bring them to an end.”

LEGAL BASIS

The state of Montana can legally bar state agents from enforcing EPA regulations. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”

WHAT’S NEXT

HB415 still needs to be brought up for an executive session in the House Energy, Telecommunications and Federal Relations Committee. It will need to pass by a majority vote before moving forward in the legislative process.


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