New Wisconsin Law Prohibits State Enforcement of EPA Regulations on Wood Burning Heaters

MADISON, Wisc. (April 5, 2016) – A bill signed into law in Wisconsin bars the state from enforcing new federal regulations on wood burning heaters, setting the stage to nullify such regulations in effect within the state.

Rep. David Craig (R-Big Bend) introduced Assembly Bill 25 (AB25) in February of 2015 and it was carried over into the 2016 legislative session. The legislation prohibits the Wisconsin Department of Natural Resources from enforcing any new federal emissions regulations relating to residential or commercial wood burning heaters.

“The department may not promulgate a rule, or enforce a federal regulation, that specifies a new source performance standard or other emission standard for residential or commercial wood heaters that is more stringent than any new source performance standard for residential or commercial wood heaters in effect on December 31, 2014.”

AB25 passed the House last summer by a 63-35 vote. It cleared the Senate 19-13 on March 15. Gov. Scott Walker signed the bill into law on March 30, and it went into effect April 1.

Michigan and Missouri have enacted similar laws.

Last year, the EPA issued new caps on particle emissions from wood burning heaters. The caps apply to new wood burning heaters, not those currently in use. The EPA will phase in the new rules in over the next five years.

According to a fiscal note published by the Department of Natural Resources, “EPA has formally delegated to Wisconsin the authority to implement and enforce NSPS regulations.” In other words, the state of Wisconsin currently carries out full enforcement of wood burning heater emission regulations. Under the new law, the state will not handle enforcement of the new, more stringent, regulations. That will leave it to the EPA to enforce those rules completely on its own, or they won’t be enforced at all.

It is highly likely the EPA does not have the personnel and resources to fully implement and enforce the new regulations alone. That’s why it currently delegates responsibility to the states. State refusal to enforce the federal mandates will likely nullify them in effect within the borders of any state that withdraws cooperation. As more states refuse to implement the new rules, it will become increasingly problematic for the EPA to fully enforce them.

EFFECTIVE

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 regulations because most enforcement actions rely on help, support and leadership from the states.

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun laws.  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.”

Partnerships don’t work too well when half the team quits.

LEGAL BASIS

The new law 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 four Supreme Court cases dating back to 1842. Printz v. US 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.”

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