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.”

Read the full text:

Whereas, The Tenth Amendment to the Constitution of the United States reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”; and

Whereas, The Tenth Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and

Whereas, Federalism is the constitutional division of powers between the national and state governments and is widely regarded as one of America’s most valuable contributions to political science; and

Whereas, James Madison, “The father of the Constitution,” said, “The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, [such] as war, peace, negotiation and foreign commerce. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people”; and

Whereas, Thomas Jefferson emphasized that the states are not “subordinate” to the national government, but rather the two are “coordinate departments of one simple and integral whole. The one is the domestic, the other the foreign branch of the same government”; and

Whereas, The scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states; and

Whereas, Today, in 2009, the states are demonstrably treated as agents of the federal government; and

Whereas, Many federal laws are directly in violation of the Tenth Amendment to the Constitution of the United States; and

Whereas, The Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the Union of States, now have, and have always had, rights the federal government may not usurp; and

Whereas, Article IV, Section 4 provides, “The United States shall guarantee to every state in this union a Republican Form of Government”, and the Ninth Amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”; and

Whereas, The United States Supreme Court has ruled in New York v. United States, 112 S. Ct. 2408 (1992), that Congress may not simply commandeer the legislative and regulatory processes of the states; and

Whereas, A number of proposals from previous administrations and some now pending from the present administration and from Congress may further violate the Constitution of the United States; therefore, be it

Resolved by the Legislature of West Virginia:

That the State of West Virginia hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States; and, be it

Further Resolved, That this serve as Notice and Demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers; and, be it

Further Resolved, That all compulsory federal legislation which directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed; and, be it

Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives, the Speaker of the House of Delegates and the President of the Senate of each state Legislature of the United States, United States Senators Robert C. Byrd and John D. Rockefeller IV, Representatives Nick J. Rahall, Alan B. Mollohan and Shelley M. Capito.