Restoring States' Rights & Adhering to Cooperative Federalism in Environmental Policy.

• Author: Cramer, Kevin

For Attorney General Wayne Stenehjem: On Friday, January 28, 2022, North Dakota and our nation lost a patriot who fought for the cause of states' rights and cooperative federalism. His work in the courtroom and on North Dakota's Industrial Commission was monumental in positioning the state to be an energy powerhouse while being a steward of the environment. Wayne was also instrumental in procuring the historic stay of the Clean Power Plan from the U.S. Supreme Court. He leaves behind an incredible legacy as the state's longest-serving attorney general and a roadmap for cooperative federalism in environmental policy. Attorney General Stenehjem's servant leadership over the past four decades is woven into the battles, triumphs, and solutions discussed in this piece. God bless his memory.

Our Founders created the Model Republic--steeped in the foundation of a government of the people, by the people, and for the people. Many herald the importance of three co-equal branches of government, which cannot be understated. But the brilliance lies in the limited federal government, whose sole powers were enumerated in the Constitution, leaving all else to the people and the states as formalized in the Ninth and Tenth Amendments.

Tension between the States and the federal government has existed since the beginning. However, recent Democrat political leadership has trended toward federal dominion well outside the bounds of the law. Nowhere is this more evident than environmental legal battles, where the federal government has pursued full authority and jurisdiction to "save" the nation from the pesky states who have not signed onto their agenda. In my ten years as a state regulator, six years as a U.S. House member, and now three years as a U.S. Senator, I have seen time and again the imposition of the federal government's mediocrity on North Dakota's excellence. Centralized government policies and hostility towards the states have essentially been normalized.

So, where did we go wrong? A multitude of efforts aided the erosion of states' rights, notably, lazy legislating, judicial activism, citizen suits, and an unchecked Department of Justice (DOJ). Our ongoing dysfunction in the Legislative Branch is certainly not helpful either. While the House and Senate squabble, the Executive Branch rules by fiat in the form of executive orders, regulations, and guidance. This was perhaps best articulated by President Barack Obama during his second term in office when he famously stated, "I am ... going to act on my own if Congress is deadlocked. I've got a pen to take executive actions where Congress won't, and I've got a telephone to rally folks around the country on this mission." (2) Unfortunately, many of his efforts are with us today, aided in no small part by judicial rulings empowered by the Chevron doctrine giving deference to the Executive Branch. (3) The bottom line is the People's House and the Upper Chamber need to get their acts in order.

However, one should not solely blame the Courts. Congress bears responsibility for enabling the growth of the Washington bureaucracy. Vague authorship from the House and Senate empowers not only the Executive Branch bureaucracy but also the political whims of presidential administrations. Lazy legislating makes what was once a co-equal branch of government, the Executive Branch, the arbiter of congressional intent. This has most conspicuously appeared in federal environmental policy, a challenge the Left has exacerbated for political gain. Notable legislation includes the Clean Air Act (enacted 1963), (4) the Clean Water Act (1972), (5) the Endangered Species Act (1973), (6) the Safe Drinking Water Act (1974), (7) the Resource Conservation and Recovery Act (1976), (8) the Surface Mine Control and Reclamation Act (1977), (9) and the Comprehensive Environmental Response, Compensation, and Liability Act (1980). (10) These laws were passed during predominantly Democratic control of Congress, and they had strong bonds to state governments in the form of state primacy for implementation. But these laws have been distorted to achieve total consolidation of power under the federal government.

Clean Air Act

Look no further than the Clean Air Act and specifically Section 111(d). (11) The Executive Branch (in this case, the Environmental Protection Agency (EPA) under President Obama) relied heavily on an overly broad interpretation of its authority. The EPA took advantage of Legislative Branch dysfunction and crafted the Clean Power Plan--an excessively burdensome, sector-wide regulation to force states to direct their electricity source away from coal under the disguise of regulating carbon dioxide. It was a direct assault on the reliability and affordability of energy generation, but more importantly, it was a blatant attack on the authority of states to set their own power generation decisions. Congress is given the authority of the pen and it makes no sense to pass authorship off to those charged with implementation, especially without the involvement of states. It is a recipe for continued litigation and conflict, rather than sound and resilient policy. Thankfully, North Dakota, alongside allied states and stakeholders, was able to receive an unprecedented stay from the U.S. Supreme Court in February of 2016, (12) perhaps speaking volumes about its illegality.

The merits of the Clean Power Plan were under review by the U.S. Supreme Court in West Virginia v. Environmental Protection Agency. (13) The Supreme Court ruled, "It is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body." (14) In a concurring opinion, Justice Gorsuch took matters further writing, "When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people's representatives." (15) In an amicus curiae brief I signed along with 91 House and Senate colleagues, (16) we noted the complete lack of congressional intent to regulate greenhouse gas emissions. The Clean Air Act requires the EPA to set National Ambient Air Quality Standards (NAAQS) for six criteria air pollutants: carbon monoxide, ground-level ozone, lead, nitrogen dioxide, particulate matter, and sulfur dioxide. Carbon dioxide is not expressly included in this list. Unfortunately, in Massachusetts v. Environmental Protection Agency, (17) the Supreme Court stepped outside the textual bounds of the Clean Air Act and opened the door to regulating vehicular carbon dioxide emissions under the guise of an endangered public. In contrast, the brief we submitted states, "In recent years, ... Congress has addressed major policy questions concerning greenhouse gas emissions by enacting legislation, signed into law by the President, that provides explicit and specific direction to administrative agencies." (18) For example, in the 115th Congress, I co-sponsored H.R. 3761, (19) the Carbon Capture Act, which was legislation to enhance the federal tax credit for carbon dioxide sequestration. Related provisions were later enacted as part of the Bipartisan Budget Act of 2018 (P.L. 115-123). (20) Clearly, the congressional intent of this bill was to accelerate the deployment of technology to reduce greenhouse gas emissions from a broad range of industries.

The brief also succinctly states,

Decisions regarding greenhouse gas emissions and the power sector are major policy questions with vast economic and political significance. Only elected members of Congress, representing the will of the people, may decide these questions. The EPA's attempt to issue expansive regulations cannot stand in the absence of clear congressional authorization. (21) The Obama Administration's sweeping regulation was a major shift in policy with significant implications. A plain reading of Clean Air Act Section 111(d), or any other kind of reading, does not give the EPA the authority to singlehandedly restructure the entire energy sector of our economy. These decisions are best left to states, which are better situated to understand their own energy needs and resources than is the federal government. They are also closer to the people they serve in both proximity and accountability. This was upheld in the West Virginia v. Environmental Protection Agency Majority Opinion. Chief Justice Roberts wrote "We declined to uphold EPA's claim of 'unheralded' regulatory power over 'a significant portion of the American economy.' ... Congress certainly has not conferred a like authority upon EPA anywhere else in the Clean Air Act. The last place one would expect to find it is in the previously little-used backwater of Section 111(d)."

North Dakota was also a party in West Virginia v. Environmental Protection Agency. An amicus curiae brief filed with the Supreme Court by North Dakota Attorney General Stenehjem hails "the delicate balance of cooperative federalism established by Congress in Section 111 of the Clean Air Act which gives the States the primary role establishing standards of performance for existing sources of air emissions." (22) Unique to the proceedings, Attorney General Stenehjem rightly notes cooperative federalism is expressly written into the Clean Air Act as it relates to regulating emissions from existing sources. Clean Air Act Section 111(d)(2) outlines the process...