The W.V. Coal Miner

Over the last couple of months, we’ve seen increased media attention focused on state efforts opposing the federal health care act passed last year. Along with state legal challenges and health care freedom legislation focused on the insurance mandates, eight states recently proposed bills declaring the entire health care act null and void, and imposing criminal penalties on any agent enforcing the act within their state borders.

But health care does not stand alone as an issue drawing the ire of state lawmakers. Many state legislators have grown increasingly frustrated with overreaching federal activity into areas rightly reserved to the states by agencies such as the EPA and FDA.

West Virginia Assembly Delegate Gary Howell (R-Keyser) recently introduced legislation into the House of Delegates  “establishing that the environmental regulation of coal and certain coal products mined and used within the state are exclusively regulated by the West Virginia Department of Environmental Protection.”

H.B. 2554 finds its basis in the Ninth and Tenth Amendment of the U.S. Constitution, as well as the West Virginia state constitution.

“The regulation of intrastate commerce, including the natural environment as affected by intrastate business, is vested in the states under the Ninth and Tenth Amendments to the United States Constitution and is specifically retained by the State of West Virginia according to Section 2, Article I of the West Virginia Constitution.”

The bill enjoys bipartisan support with three Democrats signing on as co-sponsors.

Howell said a recent EPA decision to pull a permit and shut down Spruce 1 mine shocked many state lawmakers and increased the possibility of passing the legislation.

“The odds jumped as West Virginia legislators are looking hard to fire back,” Howell said.

Spruce 1, located in Morgan County, was the largest surface mine permitted in Appalachia. The U.S. Army Corps of Engineers issued the permit in 2007 after a 10 year approval process, which included an assessment indicating the mine met clean water standards. But on Jan. 13, the EPA vetoed the permit and shut down the mine.

“EPA is taking this action under Section 404(c) of the Clean Water Act because the discharges associated with the DA Permit in Pigeonroost Branch, Oldhouse Branch and their tributaries will have unacceptable adverse effects on wildlife,” reads the agency’s final determination. “In addition, the impacts downstream due to the destruction of those streams will result in unacceptable adverse impacts to wildlife and also warrant EPA’s action under Section 404(c).”

Arch subsidiary Mingo Logan Coal Co. operates the mine. The company stands to lose a $250 million investment and officials estimate it will cost more than 200 high paying jobs.

“To give the EPA that much authority and the willingness to use it means that investors are going to be very cautious about investing in supplying energy when the federal government can nullify those investments and send your workforce home simply because they, on second thought or hindsight, decide that’s what they want to do,” Bill Bledsoe, executive director of the Norton-based Virginia Mining Association, said. “This EPA veto power doesn’t extend only to coal; it extends to anything. It means EPA can come in and shut any operation down without due process.”

Howell said the shutdown of a single mine represents just the tip of an iceberg, with federal regulation  hobbling West Virginia’s coal industry and hitting the state hard in the pocketbook.

“It is costing thousands of jobs and millions in reduced taxes to the state,” he said.

Howell said the bill will face its biggest hurdle in the judiciary committee. He fears committee members may kill the bill, thinking it unconstitutional. But Howell has already considered that possibility.

“Constitutional lawyers from the Cato Institute and the Goldwater Institute have both looked at the bill and say it passes Constitutional muster,” Howell said.

Federal judges would likely disagree. Courts have stretched the commerce clause far beyond its intended meaning, ruling that Congress can regulate virtually anything. But the framers intended the commerce clause to simply regulate trade between states, and never envisioned federal power extending inside state borders or to areas such as mining. James Madison wrote:

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

(For an in depth look at the original understanding of commerce click here.)

Howell said that his concerns run even deeper than protecting the Mountaineer State’s most important industry. It’s a matter of liberty.

“I’m the direct decedent of one of George Washington’s soldiers. For more than 230 years my family has defended the Constitution by force of arms in the service of our nation,” he said. “I have chosen to serve our nation as an elected official. I’m tired of big government ignoring the Constitution and damaging my state and my nation. I’m fighting back to provide jobs and economic stability to West Virginia by using the very tool the founders gave us as state legislators, the 10th Amendment.”

A few days ago I wrote an article entitled “The EPA can go to Hell, and I will go to Texas“. The article pointed out that Texas could (and does) favorably manage it’s own environmental policy while maintaining a superior economy. Both of which the federal government has failed to do. The EPA’s goal is simple: accrual of more power into the hands of the gluttonous feds.

For the last week, Governor Perry and the Texas legislature have been rattling the 10th amendment sabers and highlighting the success of the Texas policies. However, this week, the EPA officially took over control of the permitting process for one of these Texas refineries. EPA Region 6 Administrator Al Armendariz stated that the EPA is prepared to take over Texas’ entire permitting process. Now that the EPA has made it’s move, it is time for Texas leaders to quit talking and take significant action.

Here are concrete steps that the state of Texas needs to take to reassert it’s Constitutional right to govern without federal intrusion. Nullification, based on the 10th amendment  and our founding principles of federalism, is the legal answer to a federal government that seeks to centralize power without restraint.

Step 1: Governor Perry calls a special session

Since the Texas legislature does not meet until 2011, the Governor of Texas must call for a special session of the Texas legislature.

Step 2: Texas Legislature passes nullification legislation

Something simple like this should do the trick:

SECTION 1. The legislature of the State of  Texas finds that:

1. The People of the several states comprising the United States of America created the federal government to be their agent for certain enumerated purposes, and nothing more.

2. The Tenth Amendment to the United States Constitution defines the total scope of federal power as being that which has been delegated by the people of the several states to the federal government, and all power not delegated to the federal government in the Constitution of the United States is reserved to the states respectively, or to the people themselves.

3. The assumption of power that the federal government has made by enacting the “Clear Air Act” interferes with the right of the People of the State of Texas to regulate the state oil and gas industry as they see fit, and makes a mockery of James Madison’s assurance in Federalist #45 that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”

SECTION 2. NEW LAW

A new section of law to be codified in the [STATE] Statutes as Section [NUMBER] of Title [NUMBER], unless there is created a duplication in numbering, reads as follows:

A. The Legislature of the State of Texas declares that the federal law known as the “Clean Air Act,” and the federal agency known as the Environmental Protection Agency (EPA) is not authorized by the Constitution of the United States and violates its true meaning and intent as given by the Founders and Ratifiers, and is hereby declared to be invalid in this state, shall not be recognized by this state, is specifically rejected by this state, and shall be considered null and void and of no effect in this state.

B. It shall be the duty of the legislature of this State to adopt and enact any and all measures as may be necessary to prevent the enforcement of the “Clean Air Act” within the limits of this State.

C. Any official, agent, or employee of the United States government or any employee of a corporation providing services to the United States government that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this act shall be guilty of a felony and upon conviction must be punished by a fine not exceeding five thousand dollars ($5,000.00), or a term of imprisonment not exceeding five (5) years, or both.

D. Any public officer or employee of the State of Texas that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this act shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding two (2) years or by a fine not exceeding One Thousand Dollars ($1,000.00) or both such fine and imprisonment.

E. Any aggrieved party shall also have a private action against any person violating the provisions of subsections (C) or (D).

SECTION 3. This act takes effect upon approval by the Governor.

Of course, it may make more sense to identify specific parts of the Clean Air Act in more detail, but rejecting the entire charter of the EPA in Texas would be a huge step for freedom and state soverignty. Once drafted, no Republican worth the (R) next to his name should vote against this and no Democrat worth the “Texas” next to his name should either.

Now Available for Pre-Order

Back to you governor for the signature, that will send those EPA thugs packing.

And next time this Administrator Al Armendari steps foot in Texas, he should be escorted to the nearest border, where he can scurry back to Washington D.C. with the message that Texas is done playing games, they’ve finally had enough.

Brian Roberts [send him email] is the State Chapter Coordinator for the Texas Tenth Amendment Center

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

In an effort to defend Washington’s tough vehicle emissions standards law, Attorney General Rob McKenna today announced Washington state will join 14 other states in intervening in a California lawsuit filed earlier today.

The lawsuit filed today in the 9th Circuit Court of Appeals challenges the U.S. Environmental Protection Agency’s decision to deny California’s request for a waiver to implement its greenhouse gas emissions standards.

“The state of Washington followed California’s lead in adopting standards for vehicle emissions with the understanding California’s request for a federal pre-emption waiver would be granted in a timely manner,” McKenna said. “Now after nearly two years of waiting, EPA has denied the waiver, leaving states frustrated in their ability to address climate change concerns for their residents.”

The Clean Air Act generally preempts states from adopting their own vehicle emissions standards with the exception of California because of its efforts to address long-standing air pollution problems.  The Clean Air Act allows other states to adopt California’s standards as long as those standards are identical to California’s.

California adopted landmark vehicle emissions standards in 2005 and filed its waiver request in December 2005. Since then, 16 other states, including Washington, have also adopted or are considering adopting these standards.

None of these state laws may go into effect until California obtains its waiver of preemption from the federal government.

On Dec. 19, 2007, EPA Administrator Stephen Johnson notified California Gov. Arnold Schwarzenegger of EPA’s decision to deny the state’s waiver request.  Johnson stated he believed the problem of greenhouse gas emissions extends beyond state boundaries and calls for a national solution.  He also found that California’s standards were not needed “to meet compelling and extraordinary conditions.”

Today’s lawsuit, which seeks to reverse the EPA decision, was filed in the United States Court of Appeals for the Ninth Circuit.  The states or state agencies intervening in the suit are: Massachusetts, Arizona, Connecticut, Delaware, Illinois, Maine, Maryland, New Jersey, New Mexico, New York, Oregon, Pennsylvania Department of Environmental Protection, Rhode Island, Vermont, and Washington.

The Constitution was written under a simple principle – positive grant.  In short, what this means is this: The federal government is authorized to exercise only those powers which are specifically given to it in the Constitution.

Everything else is “reserved to the States, respectively, or to the People.”

Period.

The Tenth Amendment Center supports McKenna’s position – the federal government has no constitutional authority, whatsoever, to prevent individual states from implementing their own regulations.