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AG opinion influences House committee to back off from bill curtailing EPA in Idaho

AG opinion influences House committee to back off from bill curtailing EPA in Idaho

Idaho Freedom Foundation staff
March 18, 2014
[post_thumbnail] Rep. Paul Shepherd, R-Riggins, would like to see the power of the EPA curtailed in Idaho.

A bill to curtail the power and impact of the federal Environmental Protection Agency (EPA) while at the same time empowering the state Legislature to oversee more environmental policy has been returned to the House Resources and Conservation Committee and will probably not be addressed again this legislative session.

An opinion from the state attorney general’s office convinced members of the committee that the legislation would not stand a legal challenge.

“This bill came about from a group of my neighbors up on the big Salmon River,” explained Rep. Paul Shepherd, R-Riggins. “They were doing dredge mining and they are regulated by the Idaho Department of Water Resources.”

Shepherd continued: “All of sudden, the EPA comes to them and told them they needed an additional permit and this move almost put them out of business. All they did was suck up some water and then dump it back into the river. How can that be causing pollution?”

The Riggins representative told House members that growing numbers of people across the country have become alarmed by what is perceived as EPA intrusion. “I have since found out that outdoor recreationists are just as concerned as dredge miners are about the EPA.”

House Bill 473 would allow Idaho to exercise authority over its own environmental concerns under the 10th Amendment of the United States Constitution, the amendment that stipulates that powers not granted to the federal government by the Constitution itself and are not prohibited by the states are reserved to the states or the people. The bill also said that the Idaho Legislature must approve and authorize actions of the EPA that are not expressly noted in the U.S. Constitution.

“This bill does not call for total nullification of the EPA in Idaho,” Shepherd stated. “It just calls for nullifying non-representative rules, rules that our elected representatives have never specifically voted for.”

After his presentation of the bill, Shepherd deferred to Rep. Lawrence Denney, R-Midvale, chair of the House Resources and Conservation Committee, for comment.

“Clearly this bill shows our frustration,” Denney stated. “However, I think it may be unconstitutional and may very well go too far.” Denney then motioned that the bill be returned to the committee for amending, which was approved.

Following the House floor session, Shepherd spoke with IdahoReporter.com about Denney’s actions. “I wasn’t terribly surprised, at least I had some idea that he might do that,” Shepherd said of Denney.

Shepherd also explained that he and Denney had become “frustrated” earlier this year when the Idaho attorney general’s office offered a very negative critique of House Bill 473. In the document, a copy of which has been obtained by IdahoReporter.com, deputy attorney general Douglas Conde argues that Idaho has very little power, if any, to oppose the EPA’s activities within the state.

“The EPA is a validly created agency of the United States government,” Conde writes. He also noted that “The Supremacy Clause of the United States Constitution makes federal laws controlling in the states and, to the extent a state law conflicts with federal law, it is invalid.”

Conde also suggests that the 10th Amendment of the U.S. Constitution is not adequate grounds for the state of Idaho telling the EPA “no,” stating in his letter that “the 10th Amendment is not a substantive limitation upon the power of Congress to act within its authority.”

Shepherd told IdahoReporter.com that he is troubled with the opinion. “The U.S. Constitution is clear about powers that are not granted to the federal government,” he said. “They fall to the states. I think we need a new vision of the U.S. Constitution at the attorney general’s office.”

Shepherd said that the bill will indeed be amended, but that it won’t happen soon. “We’ll go back and rewrite it so it isn’t so broad. We’ll be very specific about activities that the EPA is engaging in, which have not been approved by the U.S. Congress. Unfortunately, that bill won’t happen until next year’s legislative session.”

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