ICYMI: Sen Cramer Essay: Restoring States' Rights and Adhering To Cooperative Federalism In Environmental Policy

Statement

U.S. Senator Kevin Cramer (R-ND), member of the Senate Environmental and Public Works Committee, penned an essay in the Harvard Journal of Law & Public Policy on restoring states' rights and federalism in environmental policy.

"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," wrote Senator Cramer.

The essay was dedicated to the late North Dakota Attorney General Wayne Stenehjem. In the essay, Senator Cramer examines the Clean Air Act, specifically Section 111(d), the Clean Water Act, the Flood Control Act, and Water Supply Rule.

Clean Air Act:

"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," wrote Senator Cramer.

This was affirmed by the Supreme Court in West Virginia v. EPA in which they stated, "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."

Clean Water Act:

"The Clean Water Act has faced a fate similar to that of the Clean Air Act. The law abides by the tenets of cooperative federalism by recognizing the responsibility of states to address water pollution. States are tasked with primary enforcement responsibility. Where the law fails miserably, however, is the ability of the EPA and the Army Corps of Engineers (Army Corps) to define their own jurisdiction. This has created a regulatory nightmare and a never-ending cycle of litigation over the nearly fifty years the statute has been in place," wrote Senator Cramer.

"States, farmers, ranchers, and landowners have endured decades of regulatory change in the WOTUS definition from administration to administration without an end in sight. As the Biden Administration rewrites WOTUS, the U.S. Supreme Court will review the scope of the Clean Water Act in Sackett v. Environmental Protection Agency during the upcoming term," continued Senator Cramer.

Flood Control Act and Water Supply Rule:

"Federal water policy outside of the Clean Water Act has experienced similar sagas. The Flood Control Act of 1944 and the Water Supply Act of 1958 were clearly established with cooperative federalism in mind. Under these statutes, "water surplus' was never defined and courts and Congress gave clear and consistent deference to states, localities, and tribes for water surrounded by Army Corps property… The law expressly recognized the preeminent role of states concerning water rights," wrote Senator Cramer.

"With nothing more than a change in administration, however, states, localities, and tribes may once again be subject to a game of regulatory ping pong. With a new Notice of Proposed Rulemaking, the Army Corps can grow the size, influence, authority, and footprint of the bureaucracy, ignore judicial precedent, override congressional intent, and trample cooperative federalism," wrote Senator Cramer.

The essay also looks at Senator Cramer's Revive Economic Growth and Reclaim Orphaned Wells (REGROW) Act of 2021, which intentionally included prescriptive language to protect against the ability of federal bureaucrats to take advantage of lazy legislating, the consolidation of litigation power among the Executive Branch, and a path forward.

A Path Forward:

"Restoring the rightful place of cooperative federalism requires a major re-prioritization of responsibilities of the Legislative and Executive Branches. Legislators must be tasked with more prescriptive lawmaking to precisely define congressional intent. This, in turn, will provide better direction to Executive Branch agencies to execute their mission in the absence of an emboldened bureaucracy," concluded Senator Cramer.

Click here to read the full essay.

Click here to read the pre-publication version of the essay released prior to the Supreme Court's ruling on West Virginia v. EPA.

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