Is  EPA Positioned To Stop Development Throughout the U.S.?


Longtime Alaskan public policy expert, Ric Davidge, believes the EPA's powers can and should be 'nullified' in Alaska and has presented a proposal to elected leaders


Phil Bryant, IOGCC, Photo by Dave Harbour, Governor, MississippiWe urge our readers to accept Mississippi Governor Phil Bryant's (NGP Photo) invitation to join the Interstate Oil and Gas Compact Commission at its May 18-20 meeting to explore current issues and operations influencing the U.S. oil and natural gas industry–including oil and gas shale production.  -dh


Today, the U.S. Environmental Protection Agency (EPA) acted to redistribute $860,000 of taxpayer dollars to 14 communities to, "…expand their use of green infrastructure to reduce water pollution and boost resilience to the impacts of climate change."    -dh


Today, the House Natural Resources Committee approved four targeted bills that would improve and moderni

Congressman Doc Hastings, ESA, Photo by Dave Harbour

ze the Endangered Species Act (ESA).  The primary focus of these four bills is to promote data and cost transparency and species recovery. 

WSJ.  The next time someone says the John Roberts Supreme Court consistently blocks Obama Administration policy, be sure to … mention Tuesday's 6-2 ruling that anoints the Environmental Protection Agency's…

These bills have been endorsed by over 25 organizations including, the U.S. Chamber of Commerce, Family Farm Alliance, National Rural Electric Cooperative Association, American Farm Bureau Federation, the National Association of Counties, National Cattlemen’s Beef Association, the National Water Resources Association, Washington Farm Bureau, Oregon Farm Bureau, Public Power Council, and National Association of Conservation Districts.

CH/CP.  Former federal environment minister Jim Prentice (NGP Photo) hasn’t yet formally announced his intention to seek Alberta’s premiership, but … Stewart Phillip, the grand chief of the Union of British Columbia Indian Chiefs, said he … respects the willingness of the former land claims negotiator to hear his opponents’ point of view.


Frasier Institute: …allowing private ownership of mineral rights.

“There is widespread support for conserving endangered species, but that doesn’t mean there isn’t room for improvement. This is a 40-year-old law that was last reauthorized in 1988; certainly there are ways to bring this law into the 21st century and make it work better for both species and people. These are four common sense bills that are very narrowly focused and make targeted improvements to the law in the areas of transparency and species recovery,” said Chairman Doc Hastings (NGP Photo). 

 

 


IS EPA ESTABLISHING PRECEDENT TO STOP DEVELOPMENT THROUGHOUT THE UNITED STATES?

…an internal EPA memo from September 2010 that acknowledges taking proactive action to veto or restrict development at Pebble has ‘never been done before in the history of the CWA’ and will result in ‘immediate political backlash from Alaska’ and anticipates litigation. The memo also indicates EPAs ambition to vastly expand its authority, calling the Pebble precedent a ‘model of proactive watershed planning’ that will allow it to undertake ‘watershed planning’ over vast areas of state, private and tribal lands anywhere in the United States.

"The actions EPA is contemplating today go well beyond Pebble. It is a precedent that will be leveraged by environmental activist groups and will have a chilling effect on future investment and job creation throughout the country. Congress never intended to grant EPA the authority to undertake proactive watershed zoning over broad areas of state and private lands when it passed the Clean Water Act, yet that is exactly what is happening here.  

 


Nullifying the EPA in Alaska

by

Ric Davidge

This is an urgent call for the Alaska State Legislature to pass emergency legislation nullifying any and all application of EPA federally promulgated water and air quality regulations as they are not constitutionally based consistent with the original intent of Article 1, Section 8, Clause 3 (the commerce clause) of the United States Constitution, and that the EPA has no authority over any state or private lands within the State of Alaska.

An Act relating to the United States Environmental Protection Agency rules; declaring certain federal rulemaking authority is not authorized by the United States Constitution; stating legislative duty to prevent enforcement of certain rules; stating exceptions; providing for codification; and declaring an emergency.

Be it enacted by the People of the State of Alaska:

Section 1.  A new section of law to be codified in the Alaska statues as section ____ of Title ____, unless there is created a publication in numbering, reads as follows:

A. The Legislature declares that the rulemaking authority of the Environmental Protection Agency is not authorized by the Constitution of the United States and violates its true meaning and intent as given by the founders and ratifiers, and is hereby declared to be invalid in the State of Alaska, shall not be recognized by this state, is specifically rejected by this state, and shall be considered null and void and of no effect in this state.

B.It shall be the duty of the Legislature of this state to adopt and enact any and all measures as may be necessary to prevent the enforcement of rules issued by the Environmental Protection Agency which are not specifically authorized by the Congress of the United States and consistent with the enumerated powers of the United States Constitution as specified in Article 1, Section 8.

C.Congress’s power to regulate Commerce is not a plenary grant of power to the federal government to regulate and control economic activity but a specific grant of power limited to preventing states from impeding commerce and trade between and among the several States.

D.Congress’s power to regulate Commerce does not extend to activity within a state, whether or not it affects interstate commerce; nor does it extend to compelling an individual or entity to participate in commerce or trade.

Section 2.  This Act shall take effect and be in full force from and after its passage and approval.

 

Discussion:  It is time the State of Alaska joined with a growing list of other states now so engaged in stopping the uncontrolled efforts of the EPA over regulating state and private lands within their respective states.  Even if you accept the notion that an EPA is authorized under the Commerce Clause (which we do not), the State of Alaska has “Primacy” over water and air quality regulations as promulgated by the State of Alaska and as formally approved by the EPA, within its territorial borders as may be applied to state and private lands and waters.

The clear perversion of the commerce clause (see attached background) of the U.S. Constitution by the Congress, the Administration, and federal courts continues as the EPA has reached far beyond any responsible authorities provided by Congress over state or private lands especially within Alaska.  The question of EPA’s authority over federal lands and federally reserved waters is not raised in this emergency act; however we will point out that all waters within the State of Alaska, both surface and subsurface, are the property of the state subject to appropriation unless previously withdrawn by Congress prior to statehood.  EPA has no authority over our waters.

Although some have argued that Article I, Section 8, Clause 3 of the Constitution grants Congress the power “

[t]o regulate Commerce . . . among the several States.” They have asserted that federal legislative authority over interstate commerce is “plenary”, which means it is “complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution” is on its face wrong and substantively inconsistent with the history of this Article and Section of the Constitution.

This perversion of the Commerce Clause has served as the basis for nearly every major environmental and public health law passed by Congress, including the Clean Water Act. Despite repeated legal challenges to the constitutionality of these laws—including laws that of necessity regulate local, intrastate activities—neither the Supreme Court nor federal appellate courts have ever struck down an environmental statute as exceeding Congress’s power under the Commerce Clause.  It is time to stop this overreach and clear violation of the intent of our founders.

We submit that the only way to stop this obvious and destructive abuse of federal power over the lands and waters of the State of Alaska is through formal state nullification of the federal regulations that EPA claims enable such abuses.  And so this Act is offered as an important step in that effort.

Recent EPA actions in Alaska:  The recent and clearly illegal interference by the EPA in a proposed project on state land, within which no permit has yet even been requested of the state for mining purposes, is a clear and violent instigation by the EPA into the fully proper affairs of the State of Alaska to rightfully regulate the activities on its own lands and waters.  Alaska has in place some of the most stringent water quality and project permitting standards and processes of most states, and yet the EPA totally without precedent, improperly – even illegally – injected itself into the affairs of the State of Alaska in its efforts to work on the ecologically responsible exploration and possible development of its mineral resources.

Even within the EPA’s own regulatory processes, federal action is NOT triggered until a “federal” permit is requested.  None has been.

EPA’s report does not assess the effects of the proposed project as they have not finalized nor submitted a project for regulatory evaluation. The report is based upon a so-called ‘hypothetical mine’ of the EPA’s design. The hypothetical mines developed by EPA in their first two drafts did not employ the most advanced engineering and mining practices, as will most certainly be used in this project.

EPA did not consider the critical environmental safeguards and modern mitigation that state permitting will require. Even then, the EPA has grossly over-estimated the effects of its under-engineered project. The project has spent many years and $600 million dollars on engineering and environmental studies to develop a plan consistent with state laws and regulations as will be required for a 21st century mine. Alaska understands the critical role salmon plays in this region of Alaska, both culturally and commercially and has a long history of such considerations in its project permitting. Working closely with the State of Alaska agencies, the project advocates have dedicated significant time and resources to their environmental studies program and have taken time to design a responsible project for developing the mineral resource of this area of state land.

EPA did not take the time nor did it commit the financial resources to assess the potential impacts of development in an area the size of the state of Ohio. Its study is both a poorly conceived and poorly executed report, and it cannot nor will it serve as the scientific basis for any decisions concerning this project.  In initiating this so called study, Alaska has continued to note that the EPA has deviated from its own internal guidance for a report with ever changing objectives

But our concerns are not limited to EPA’s illegal actions on just this one project.  Their continued insistence that they have the right to directly interfere in Alaska’s oil and gas explorations and developments, again on state and/or private lands and waters and the coastal waters within the state’s legal authority, frustrate not only our effort to meet our obligations as a state in the provision of an economy that can provide for its governance as agreed in our Statehood Compact, but also our absolutely right to and therefore control of property as guaranteed by the Constitution of the United States.

For Reference:   The Commerce Clause describes an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress.[1] It is not uncommon to see the individual components of the Commerce Clause referred to under specific terms: The Foreign Commerce Clause, the Interstate Commerce Clause,[2] and the Indian Commerce Clause.

Significant dispute exists within the courts as to the range of powers granted to Congress by the Commerce Clause. The clause is often paired with the Necessary and Proper Clause, in an effort to enable a much broader, far more expansive perspective of these powers. However, the effect of the Commerce Clause has varied significantly depending on the Supreme Court's interpretation at different times. During the Marshall Court era, Commerce Clause interpretation empowered Congress to gain jurisdiction over numerous aspects of intrastate and interstate commerce as well as non-commerce. During the post-1937 era, the use of the Commerce Clause by Congress to authorize federal control of economic matters became effectively unlimited. During the latter half of the Rehnquist Court era, Congressional use of the Commerce Clause was slightly restricted again, being limited only to matters of trade (whether interstate or not) and production (whether commercial or not).

The Commerce Clause emerged very specifically as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. This need was due to actions by states to erect barriers (real and/or economic) between states in commerce.  For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that was once permissible (prior to the new Constitution) – directly consistent with the clauses clear intent. But then, in response to rapid industrial development and an increasingly interdependent more national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.

The Commerce Clause represents one of the most fundamental powers delegated to the Congress by the founders, but was it absolute? The outer limits of the Interstate Commerce Clause power have been the subject of long, intense political controversy, debate and many Supreme Court decision. Interpretation of the sixteen words of the Commerce Clause has helped define the balance of power between the federal government and the states and the balance of power between the two elected branches of the Federal government and the Judiciary. As such, it has a very direct impact on the lives of American citizens and their economies.  Obamacare is a prime contemporary example of a court interpretation that is by most standards perverse.  It requires commerce – you MUST buy health insurance – clearly not even close to the notions of our Founder’s.

What is “plenary power” and why is this important here?

In United States constitutional law, plenary power is a power that has been granted to a body in absolute terms, with no review of, or limitations upon, the exercise of the power.] The assignment of a plenary power to one body divests all other bodies from the right to exercise that power, and where not otherwise entitled; also, the right to substantively review the exercise of that power in a particular instance or in general.

There are very few clear examples of such powers in the United States due to the nature of the Constitution which grants different, but at times, overlapping roles to the three branches of federal government or indicates the states retain certain roles. For example although United States Congress under Article I, Section 8, Clause 3, (the Commerce Clause) has been said to have "plenary" power, to which we do not agree, over Interstate Commerce this does not always preclude the states from passing laws that affect interstate commerce. When an activity is in interstate commerce and when Congress has not regulated it the states can regulate this activity as long as they do so appropriately.

This is known as the "Dormant Commerce Clause." Similarly, this is true between the branches. Congress does appear to have complete and absolute power regarding the declaration of war and peace in Article I Section 8 Clause 11. Yet, the President has control over the Armed Forces as Commander-in-Chief. These powers are in ongoing conflict as seen by the War Powers Resolution of 1973. Under what circumstances can the president act in his capacity as Commander-in-Chief without a declaration of war? To what extent must Congress formally declare war, or are resolutions supporting Executive action sufficient?

Furthermore, while it would appear (as seen in the paragraph below) that Congress has Plenary power to levy taxes via the Federal Government, this is a power that is held concurrently with the states.

The plenary power of the U.S. Congress, or of other sovereign nations, allows them to pass laws, levy taxes, wage wars, and hold in custody those who offend against their laws. While other legal doctrines, such as the powers of states and rights of individuals (or human rights), are held to limit the plenary power of Congress, then-Associate Justice William Rehnquist said the idea of limited federal powers is "one of the greatest 'fictions' of our federalist system" (Hodel v. Virginia Surface Mining & Reclamation Association, 1981). A striking example can be seen in United States v. Kagama, where the Supreme Court found that Congress had complete authority over all Native American affairs. The very idea of unlimited Federal powers is at odds with the reality that the 13 original states experienced before the U.S. Constitution, that they each became vested with plenary sovereignty inherited directly from the British monarch and Parliament after the joint 1776 Declaration of Independence, and that they voluntarily delegated some, but certainly not all, of that plenary sovereignty to the Federal government they created by ratifying the U.S. Constitution, which is therefore a government of limited, enumerated powers. This latter view is validated by the Tenth Amendment and the legal doctrine of the equality of states, especially as it relates to the 37 non-original states.