EPA Power Grab Incites States to Consider Nullification

Published July 20, 2015

The U.S. Environmental Protection Agency has in recent years imposed numerous new regulatory rules strangling the freedoms of businesses and property owners. Latching on to every possible excuse for regulating economic activities by citing microscopic effects on air and water, EPA has shown no respect for any boundaries in imposing its draconian mandates. State governments are experiencing the effects and are increasingly taking action to reduce the amount of economic carnage the Obama administration’s EPA inflicts.

States’ refusal to enforce what they consider to be unconstitutional federal laws is known as nullification. In the Virginia Resolution of 1798, James Madison said states are “duty bound to resist” when the federal government violates the Constitution. States are now embracing this concept by responding to an increasing regulatory burden imposed by federal bureaucrats.

EPA’s proposed water rule imposes a very broad expansion and redefinition of what bodies of water are under control of the federal government. Under current rules, federal authority is limited to navigable bodies of water with interstate impact. The Mississippi River is an excellent example of a navigable interstate body of water, as it spans 10 states and plays an important economic role by allowing the transport of raw materials throughout the Midwest and the South.

EPA’s new authority would give the agency a blank check to regulate any body of water its bureaucrats want to take over. Local control of rivers and small tributaries would be diminished or eliminated altogether. This means EPA could halt any property development or commercial activity it feels like stopping.

In the past month, 27 state attorney generals filed four separate lawsuits in federal court over the proposed water rule. All argued EPA overstepped its authority because the Clean Water Act ensures state and local control of waterways. Each attorney general included additional reasons to strike down EPA’s plan.

Oklahoma Attorney General Scott Pruitt (R) said the plan attacks basic property rights. “Respect for private property rights have allowed our nation to thrive, but with the recently finalized rule, farmers, ranchers, developers, industry and individual property owners will now be subject to the unpredictable, unsound and often byzantine regulatory regime of the EPA,” said Pruitt in a statement issued on July 8.

Arkansas Attorney General Leslie Rutledge (R) argued the rule would backfire by removing control from individual property owners and local governments, who are in the best position to judge environmental impacts. “I am confident that the courts will once again affirm that local oversight and local control is the best way to protect our waters,” said Rutledge in a statement on June 29.

In addition to vastly expanding the agency’s power over waters, EPA’s proposed new Clean Power Plan would require all states to cut carbon dioxide emissions by 30 percent from 2005 levels by the year 2030. EPA justifies the rule under the Clean Air Act, which covers air pollution, even though carbon dioxide is not a pollutant but is in fact essential to life on Earth.

Indiana Gov. Mike Pence (R) took action on June 24 by announcing his state would not comply with the proposed standards. The Hoosier State’s economy is thriving, thanks in part to the low cost of energy.

In a letter to President Barack Obama, Pence warned, “The Clean Power Plan and your administration’s policies seek to deprive Hoosiers of the very energy source that has provided us with reliable electricity for generations: coal. This plan will force the premature closure of reliable coal-fired power plants, threatening our stable source of affordable electricity. Our nation cannot afford your climate plan, and Indiana will not stand for it.”

As the lawsuits and Pence’s letter demonstrate, states are increasingly willing to fight the federal government to prevent their economies and residents’ individual rights from being trodden upon by the endless accumulation of new federal mandates. They are in fact heading toward an explicit agenda of nullification, and that could create a serious constitutional crisis.

If that happens, the Obama administration and other proponents of an expansive federal government can’t claim nobody warned them.

(S.T. Karnick, director of research at the Heartland Institute, contributed to this column.)

[Originally published at the American Spectator]