CHARLESTON, W. Va. (Jan. 20, 2023) – A bill introduced in the West Virginia Senate would ban state cooperation with the enforcement of some federal regulations on natural resources in the state. The passage of this bill would set the stage to nullify these regulations in practice and effect.
Sen. Patrick Martin (R) and Sen. Mark Hunt (R) introduced Senate Bill 183 (SB183) on Jan. 13. The legislation would ban state and local agencies and their employees from knowingly and willingly participating in any way in the enforcement of any federal act, law, order, rule, or regulation relating to coal, oil, gas, timber, or other extractive resources, or downstream industries related to such extractive resources if it does not exist under the laws of West Virginia. It would also bar the use of state funds to aid in the enforcement of the same.
State or local employees who violate the law would be subject to civil penalties. Political subdivisions of the state in violation of the law would lose state grants the following year.
The proposed law is similar to a bill introduced in Texas to ban state and local enforcement of federal regulations on oil and gas production.
While the law wouldn’t end all federal regulations on natural resources immediately, it would represent a massive shift in strategy going forward. In effect, the bill would do the following.
- Ban state and local enforcement of any federal regulation of natural recourses on the books that doesn’t have a concurrent measure in West Virginia state law.
- Ban state and local enforcement of any new regulation of natural resources that might come from Washington D.C. in the future that isn’t on the books in West Virginia.
- Shift the focus and attention to natural resource regulation measures on the books in state law, effectively giving West Virginia complete control over the regulation of its natural resources.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” provides an extremely effective method to render federal laws, effectively unenforceable because most enforcement actions rely on help, support and leadership from the states.
Fox News senior judicial analyst Judge Andrew Napolitano agreed this type of approach would be extremely effective. In a televised discussion on federal gun laws, he noted that a single state refusing to cooperate with enforcement would make federal gun laws “nearly impossible” to enforce.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing this necessary cooperation, states can nullify in effect many federal actions. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
The state of West Virginia can legally bar state agents from enforcing EPA regulations, or any other federal law. 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. (1997) serves as the cornerstone. For the majority, Justice Scalia wrote, in part:
“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 policymaking 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”
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
SB183 was referred to the Senate Agriculture and Natural Resources Committee where it must get a hearing and pass by a majority vote before moving forward in the legislative process.
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