CHARLESTON, W. Va. (Jan. 28, 2024) – A bill introduced in the West Virginia House would end state and local enforcement of certain Environmental Protection Agency (EPA) rules and regulations.
Sen. Patrick Martin and Sen. Robert Karnes introduced Senate Bill 358 (SB358) on Jan. 12. Titled the Natural Resources Anti-Commandeering Act, the legislation would prohibit state agencies, political subdivisions, and their employees from knowingly and willingly participating 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 state law. The bill would also prohibit the use of any assets, state funds, or funds allocated by the state to local entities for the enforcement of the same.
SB358 includes civil and criminal penalties on any persons found guilty of violating the law.
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.”
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.
SB358 was referred to the Senate Judiciary Committee where it must get a hearing and pass by a majority vote before moving forward in the legislative process.
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