Can a State Bypass the EPA?

Jillian Bandes

12/15/2010 12:01:00 AM - Jillian Bandes

In 2010, the EPA granted exactly two new coal mining permits in West Virginia. There are fifty outstanding permits, because according to the EPA, bugs are more important than jobs.

Mayfly populations are disrupted when coal companies dig beneath the surface of the earth, which the EPA says affects the amount of food and thus the populations of indigenous fish. Other research has indicated that as soon as those bugs leave, other ones take their place, and fish populations are unaffected.

As the result of this standoff, coal cannot expand in Appalachia, and some of the highest paying jobs in the state remain unfilled. For state representative Gary Howell, that’s unacceptable.

“The EPA gets their authority from the Commerce Clause. Where no interstate commerce exists, their authority stops,” he said. That’s why he has introduced a bill that would exempt West Virginia coal from the EPA’s grip, allowing coal to be regulated only by a state agency.

The EPA can only regulate interstate commerce, Howell explains. If coal is produced in West Virginia and burned in West Virginia, it shouldn’t be under the EPA’s jurisdiction. This doesn’t mean that environmental standards won’t be adhered to. It simply means that state agencies can streamline and prioritize enforcement instead of it being handled by a centralized bureaucracy.

“My bill clearly states that our mines still have to meet the federal EPA requirements. All I’m doing is shifting enforcement,” said Howell.

Does his bill pass muster?

“The answer is a firm maybe,” said Ilya Shapiro, a constitutional scholar at the Cato Institute. "The same issue is being raised currently by Montana in a court case about bullets. That's right, bullets – they want to avoid federal firearms regulations when these bullets only manufactured, sold, and used in Montana.”

Nick Dranias, the director of the Center for Constitutional Government at the Goldwater Institute, was optimistic.

“I think that Delegate-Elect Gary Howell is advancing precisely the kind of legislation that stands a chance of vindicating state sovereignty because it exerts powers traditionally recognized as within the powers reserved exclusively to the states,” said Dranias.

He did have some constructive criticism, however.

“To strengthen his law, I would suggest that Delegate-Elect Howell consider proposing a bill that would criminalize interference with the 'Put West Virginia to Work' Act, and authorize the state to compact with other like-minded states to mutually enforce and prosecute violations of similar laws,” he said. “If enforced by a congressionally-approved interstate compact, the 'Put West Virginia to Work' Act could trump the EPA's regulatory actions as a matter of federal law."