CONCORD, N.H. (Dec. 20, 2023) – A bill filed in the New Hampshire House would end state enforcement of all EPA rules, regulations and mandates.
Rep. Michael Granger and five cosponsors introduced House Bill 1294 (HB1294) on Dec. 6. It reads, in part:
“Because the authority of the United States Environmental Protection Agency is not authorized by any article or amendment of the Constitution of the United States, all regulations imposed by the United States Environmental Protection Agency are void in New Hampshire. The state and its political subdivisions, including, but not limited to counties, cities, towns, precincts, water districts, school districts, school administrative units, or quasi-public entities, shall not engage in the enforcement of, or any collaboration with the Environmental Protection Agency.”
Under the law, the state of New Hampshire would manage all environmental regulations within New Hampshire’s borders.
“The state, being conscious of the need for environmental protection for its citizens, shall provide environmental protection through the department of environmental services established by this chapter.”
EFFECTIVE
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including EPA rules. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. 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.”
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from state and local governments.
Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking similar steps would make federal gun laws “nearly impossible” to enforce.
“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 EPA regulatory enforcement, states and even local governments can help bring these unconstitutional acts to their much-needed end.”
LEGAL BASIS
The provisions prohibiting the state from enforcing EPA rules and regulations rest 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 – whether constitutional or not. 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.”
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. A state could refuse to provide personnel or resources to the federal government just because it is Tuesday and it’s snowing.
WHAT’S NEXT
HB1294 will be officially introduced when the New Hampshire legislature convenes on Jan. 3. It will be referred to the House Environment and Agriculture Committee where it must receive a hearing and a vote before moving forward in the legislative process. An “ought to pass” recommendation would greatly increase the bill’s chance of passage in the full House.
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