AUSTIN, Texas (June 15, 2023) – Yesterday, Texas Gov. Greg Abbott signed a bill that could ban state cooperation with the enforcement of some federal regulations on oil and gas production in the state. But the new law has a big loophole that will likely allow state and local agencies to continue enforcing many if not all federal regulations.
Rep. Brooks Landgraf and a bipartisan coalition of three cosponsors introduced House Bill 33 (HB33) on Feb. 23. The law prohibits any state agency and its employees from contracting with or providing assistance “to a federal agency or official with respect to the enforcement of a federal statute, order, rule, or regulation purporting to regulate oil and gas operations” if it does not exist under the laws of Texas.
The law specifies that a state agency would still be able to enter into a memorandum of agreement with a federal agency to implement a federal law as long as it is “otherwise authorized by state law.”
These provisions would end state and local enforcement of a vast number of federal oil and gas regulations not reflected in state law. But an amendment passed in the Senate Natural Resources & Economic Development Committee creates a big loophole, allowing state agencies to implement a “federal law by executing authority delegated to the state agency by a federal agency.”
It’s unclear how much leeway this will give state agencies to enforce federal regulations, but the most liberal reading of the language would allow them to enforce all federal oil and gas regulations because the EPA arguably delegates full enforcement authority to the state and every federal oil and gas regulation is the product of federal law.
Even if we don’t accept this broad interpretation, state and local agencies can easily circumvent the enforcement prohibition by asking the EPA to explicitly delegate enforcement authority. Conversely, the EPA could unilaterally delegate such authority to ensure state cooperation.
This loophole is reminiscent of the loophole in the fake gun sanctuary law Texas Republicans enacted in 2021.
Even without the loophole, the law wouldn’t end all federal regulations on gas and oil production immediately. But it would still represent a massive shift in strategy going forward. In effect, the bill (with no loophole) would do the following.
- Ban state and local enforcement of any federal regulation of gas and oil operations on the books that doesn’t have a concurrent measure in Texas state law.
- Ban state and local enforcement of any new regulation of gas and oil operations that might come from Washington D.C. in the future that isn’t on the books in Texas.
- Shift the focus and attention to oil and gas regulation measures on the books in state law, effectively giving Texas complete control over the regulation of its oil and gas industry.
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 Texas 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 first deemed to be constitutional or not.
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