March 13, 2014 in Idaho

Idaho House panel backs bid to nullify EPA

By The Spokesman-Review
 

BOISE – An Idaho House committee passed a bill Thursday to attempt to nullify the EPA in the state, though a state Attorney General’s opinion says the measure’s unconstitutional.

Rep. Paul Shepherd, R-Riggins, said, “I don’t happen to agree.”

Shepherd proposed the bill, patterned after a proposed Oklahoma law, because of concerns from suction dredge miners who don’t like a new Environmental Protection Agency permit that’s been required for such mining in Idaho since last spring. Dozens of suction dredge mining enthusiasts testified at a House Resources Committee hearing on Thursday afternoon; some railed against “environmental fruitcakes” and “tyrannical bullshit.”

“Let’s get the EPA out of Idaho and get back to enjoying the Gem State,” one told the lawmakers.

The bill, HB 473, is now headed to the full Idaho House for debate, though its ultimate fate is uncertain. It declares the Environmental Protection Agency’s regulation authority “null and void and of no force and effect in this state,” says the EPA is unconstitutional and invalid, and calls on the state to “enact any and all measures as may be necessary to prevent the enforcement of regulations” issued by the agency.

Shepherd, a fifth-term lawmaker who seldom proposes legislation, has vehemently championed the bill. “I say to the Attorney General, even though he’s a lawyer and I’m not, that I’m right – because the laymen wrote the Constitution,” he declared after the committee meeting.

Shepherd introduced his bill in early February, and it languished for more than a month without a hearing. He kept pushing, finally getting it moved from the House State Affairs Committee to the House Resources Committee, where Chairman Lawerence Denney, R-Midvale, agreed to schedule a hearing.

Shepherd noted that it’s late in the legislative session – lawmakers are hoping to finish their session next week. “We’re lucky to even have this hearing,” he said. “I can’t tell you what’s going to happen now.”

No one testified against the bill; seventy-six people signed in at the committee hearing in support. After dozens testified, the committee approved the measure on a voice vote with no discussion.

Shepherd said the EPA shouldn’t be requiring the same permit for dredge miners as for those who discharge pollutants into waterways, because the dredgers just put the same sand and gravel back into the water that they took out.

Rep. Dell Raybould, R-Rexburg, said, “I notice in here, we’re talking about dredge mining, but the wording of this would this include any EPA regulations of anything in Idaho, just flat-out.” He asked Shepherd if the bill would cover any water quality or air quality standards the EPA has. “Yes,” said Shepherd. “I feel it covers any overreach that we can show is legally overreach by that agency.”

Jim Werntz, Idaho director for the EPA, said the agency chose to try to regulate suction dredge mining in Idaho, rather than just shut it down, as happened in California and Oregon. More than 80 of the new permits have been issued; they’re good for five years. But, he said, “Where there were species issues or protected waters or wild and scenic waters, those waters were protected and closed.”

That included popular areas along the main and lower Salmon River near Riggins, where critical habitat for salmon and steelhead prompted closures to dredging.

In the attorney general’s opinion, Deputy Attorney General Brian Kane wrote that the bill “would, with almost certainty, be found unconstitutional.”

In a six-page analysis, Kane wrote that many mistakenly believe the EPA was “created by executive order” rather than by Congress. Actually, he wrote, it was created by President Richard Nixon in 1970 under a specific clause in federal law, and then, as required, ratified by both houses of Congress - twice. Congress then delegated regulatory authority to the EPA through “numerous federal laws,” he wrote, and those laws have been upheld by the U.S. Supreme Court.

Shepherd said, “I think that the Supreme Court needs to go by their oath of office. The Supreme Court’s changing the Constitution.”


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