Ohio Bill Would Reject EPA Clean Power Plan; Set Foundation to Nullify it in Practice

COLUMBUS, Ohio (May 11, 2016) – A bill introduced in Ohio would reject the federal “Clean Power Plan” rules in the state and set the foundation to nullify it in practice.

Introduced by State Rep. Al Landis (R) House Bill 541 (HB541) would prohibit any state agency from taking any action to implement the federal “Clean Power Plan.”

The legislation does not have any conditions or exceptions. It is an outright ban on state enforcement or cooperation with the EPA Clean Power Plan.

Passage would practically guarantee that much of the unconstitutional EPA Clean Power Plan mandates would go unenforced in Ohio. The EPA is heavily reliant on the state to enforce its environmental regulations. Without state cooperation the Clean Power Plan would be virtually impossible to implement in Ohio.

OVERVIEW

The Clean Power Plan is widely regarded as EPA’s most ambitious attempt to regulate greenhouse gas emissions from power plants under the Clean Air Act. The plan was first announced by President Obama last August. In February the Supreme Court placed a hold on the Clean Power Plan, which is expected to last a year and a half, but ultimately the feds will likely begin trying to implement the scheme.

While last fall, Kentucky Gov. Bevin made headlines by saying that the EPA can “pound sand,” his state did not pass similar legislation in 2016. A bill taking a smaller step toward rejecting the Clean Power Plan was recently signed into law in West Virginia. Another was passed in Virginia but vetoed by Governor Gov. Terry McAuliffe.

LEGAL BASIS

HB541 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.”

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. In fact, the federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts.  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,” said Michael Boldin of the Tenth Amendment Center.

NEXT UP

HB541 was referred to the state House Energy and Natural Resources Committee. where it will have to pass by a majority vote before moving on to the full House.

Contact members of the Ohio State Energy and Natural Resource Committee here.

For Ohio residents: Find your local legislator here and tell them to support HB541.

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