Update: The Duluth Tribune account (discussed below) varies considerably from the Northland News' account of the bill, and neither reporter looked at the natioal legislative history of the copycat bill. [end update]

It's hard to fault ultra-conservative state representative Mary Franson (R-Alexandria) for introducing HF3094, a Tenther-movement bill to nullify the federal Environmental Protection Agency's power in Minnesota. She's facing a viable challenger from the right who's long coveted the seat, regardless of which Republican occupies it.

Nor can we express surprise that a covey of ALEC members (mostly), led by Cindy Pugh (R-Chanhassen), has introduced a Republican-only HF3085, a resolution to oppose "EPA regulations that would expand federal jurisdiction over waters and lands without Congressional approval."

What's puzzling is what three DFL legislators are doing in this clown car, even if the three gentlemen are from the Range.

EPA Clean Water Act jurisdictional rulemaking and the Pugh bill

This latter resolution reflects a long standing concern of the American Legislative Exchange Council (ALEC) has with the EPA's jurisdictional authority under the Clean Waters Act; witness a resolution posted in 2013 opposing federal legislation that would have extended that authority. The new bill seems brand spanking new in this battle--as the proposed rules seem to have come between ALEC meetings and so there's no trace of this specific resolution on the ALEC site.

Four of the bill's five authors--Pugh, Mike Benson (R-Rochester), Steve Drazkowski (R-Mazeppa), and Linda Runbeck (R-Circle Pines)--are ALEC members; the fifth, Jim Newberger, has been active in the Central Minnesota Tea Party.

Bloomberg News reported in mid-January that the leaked version of the rules were not final, according to USDA Secretary Tom Vilsack, but the anxiety continues, stoked by the usual suspects. The issues with a leaked version of the rule were examined by New York Times reporter Ron Nixon last week in E.P.A.’s Proposed Rules on Water Worry Farmers:

. . .The Environmental Protection Agency is set to issue regulations that farmers like Mr. Lemke say may require them to get permits for work for which they have long been exempt. The E.P.A. says the new rules are needed to clarify which bodies of water it must oversee under the federalClean Water Act, an issue of jurisdiction that the agency says has been muddled by recent court rulings. Opponents say the rules are a power grab that could stifle economic growth and intrude on property owners’ rights.... The proposed regulations have also raised concerns among industries beyond agriculture, and objections have been filed by several groups. To coordinate the opposition efforts, those groups joined forces nearly three years ago with several agriculture trade organizations, like the American Farm Bureau Federation, to create the Waters Advocacy Coalition to lobby against increased environmental regulation.... Conservation groups, which have pushed for the regulations, say farmers’ concerns are overblown. Jan Goldman-Carter, a lawyer who works with the National Wildlife Federation on water issues, said the proposals outlined regulatory exemptions that have been in place for decades for plowing, planting, harvesting and maintaining drainage ditches. She said a copy of the draft regulations that was leaked last year clearly shows that to be the case. “The draft guidance is clear that irrigation ditches, drainage ponds and even groundwater are not considered waters of the U.S. Nor are gullies, rills, swales and other erosional features,” she said. “This has been explained over and over again.” Industry claims that ditches or groundwater might be covered under the new regulations are “just wrong,” she said. . . .

Read the entire story for a more complete understanding of the issue. As Bluestem Prairie reported in CAE Senior Fellow Don Parmeter to bring lifelong anti-environmental insights to strategy meeting, the Tea Party and other anti-environmental groups have been organizing around these fears, and it's quite possible the Franson and the Three Dwarves nullification legislation is related as well. However, asa nullification bill, HF3094 has its roots in the more extreme reaches of the Tenther movement than in ALEC.

Nullification and its discontents: Tentherism finds a home on the Range

It's likely that neither bill will go anywhere, and Minnesota isn't the first place an EPA nullification bill has seen the light of day. Just today, the Associated Press's Nicholas Geranios reports (via the Idaho Statesman) that Idaho's EPA nullification bill fails to advance. Geranios writes:

A bill that would have declared many restrictions handed down by the U.S. Environmental Protection Agency as unconstitutional failed to advance in the Idaho House on Tuesday. The bill was instead returned to the Natural Resources and Conservation Committee, killing its chances of passage as this session winds to a close. Rep. Paul Shepherd, a Republican from Riggins, had touted his bill as a way for Idaho to disregard many federal regulations on air and water pollution. In particular, his bill would help dredge miners in his district whose work was impeded by what they call the EPA's unnecessarily restrictive water pollution rules. . . . But the bill was met with deep skepticism from lawmakers who questioned its legality. An opinion by the Idaho Attorney General had found the bill was clearly unconstitutional, calling that finding a "certainty." The Idaho Legislature has a history of using largely symbolic legislation as a gesture of defiance against what they view as oppressive government controls.

Lovely. Here's the text of the Idaho bill:

Be It Enacted by the Legislature of the State of Idaho: SECTION 1. That Chapter 1, Title 39, Idaho Code, be, and the same is hereby amended by the addition thereto of a NEW SECTION, to be known and designated as Section 39-102B, Idaho Code, and to read as follows: 39-102B. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS -- NULL AND VOID. (1) The legislature declares that the regulation authority of the United States 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 Idaho, shall not be recognized by this state, is specifically rejected by this state and shall be considered null and void and of no force and effect in this state. (2) It shall be the duty of the legislature of the state of Idaho to adopt and enact any and all measures as may be necessary to prevent the enforcement of regulations issued by the United States environmental protection agency that are not specifically authorized by the congress of the United States or specifically adopted by the legislature of the state ofIdaho. SECTION 2. An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on & after its passage and approval

And the relevant parts of the Minnesota bill:

Section 1. [116.025] ENVIRONMENTAL PROTECTION AGENCY 1.7REGULATIONS; NULL AND VOID. (a) The legislature declares that the regulation authority of the United States 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, shall not be recognized by the state, is specifically rejected by the state, and shall be considered null and void and of no force and effect in the state. (b) The legislature shall adopt and enact any and all measures as may be necessary to prevent the enforcement of regulations issued by the United States Environmental Protection Agency that are not specifically authorized by the Congress of the United States or specifically adopted by the legislature of the state of Minnesota. EFFECTIVE DATE.This section is effective the day following final enactment.

Jeepers, they look a lot alike; indeed, the Doublemint Twins of EPA nullification.

Arizona and Oklahoma resolutions

But there's more: we find similar language in the Arizona Senate, source of so much grand malarkey. Back in January, the Phoenix New Times' Ray Stern reported in Arizona Republican Lawmakers (Plus One Dem) Support Nullification of All EPA Rules, under the category "Only in Arizona":

A group of 36 Republican Arizona lawmakers and one Democrat have signed a resolution supporting nullification of all Environmental Protection Agency rules. According to the group, the EPA simply has no right under the U.S. Constitution to tell the citizens of Arizona what to do. Their argument, if you could call it that, is based on the 10th Amendment. Scroll down for the complete and mercifully short text of Senate Resolution 1003: "Whereas, the Tenth Amendment to the Constitution of the United States reads as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"; and Whereas, the Tenth Amendment defines the total scope of federal power as being that which is specifically granted by the Constitution of the United States and no more; and Whereas, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states; and Whereas, the rulemaking authority of the United States 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. Therefore Be it resolved by the Senate of the State of Arizona: That the Members of the Senate support the nullification in the State of Arizona of all rules imposed by the United States Environmental Protection Agency."

It's longer, but pretty much the same red-haired stepchild of bill-writing, and it passed in the Arizona Senate this month, according to the Tenth Amendment Center.

And before Arizona? The nullification-favoring Tenth Amendment Center reported in Oklahoma will consider legislation to nullify EPA rule-making powers:

The State of Oklahoma is turning to nullification, as well as the courts, to contend with federal Environmental Protection Agency overreach.

State Sen. Patrick Anderson recently submitted SB1167 to the Oklahoma Legislature. This bill will render void all rules imposed by the EPA and not passed by Congress. It is absolute nullification of that agency’s rulemaking in the state of Oklahoma. Section 1.A. of the bill, as introduced, reads, “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 Oklahoma, 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.” The bill also requires the state legislature to take all steps necessary to block EPA enforcement of its rules. 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 or specifically adopted by the Oklahoma Legislature.

Well jeepers. Is there an echo in the state capitol?

The Nullification Movement

Political Research Associates's Rachel Tabachnick reports in Nullification Bills Already on the Move in 2014:

The most recent issue of The Public Eye includes an extensive report on nullification, an idea based on the legal theory that states can block federal laws that those states deem to be unconstitutional, and its growing traction across the United States. One of the most dramatic showdowns of 2013 was in Missouri, where the legislature failed by only one vote to override Democratic Gov. Jay Nixon’s veto of a bill nullifying certain federal gun laws. . . .

Tabachnick doesn't mention the EPA nullification resolution but they're born from the same Constitutional philosophy, and the Tenth Amendment Center has breathlessly covered the resolutions this year. Check out the longer report Nullification, Neo-Confederates, and the Revenge of the Old Right.

Also worth reading: the Southern Poverty Law Center's 2011 post, Upending the Constitution: Outlandish Laws Proposed by State Legislatures, which mentions an early EPA "Sanctuary State" law proposed for Kentucky, and the portrait of Tenth Amendment Center founder Michael Boldin from the longer SPLC report, 30 New Activists Heading Up the Radical Right (2012).

So what are Tom Anzelc, David Dill and Jason Metsa doing in a place like this?

While it's no surprise to see Tea Party Republican Mary Franson, Wright County right winger Joe McDonald (who replaced nullification supporter Tom Emmer after he ran for governor) or Bud Nornes (R- Otter Tail Power) signed on to this bill, reading DFLers' names on the list seems like Minnesotans are being exposed to the most boneheaded sort of political trolling.

First, by signing on with a movement most associated with Tea Party members and Birchers, the DFL men of genius weaken attacks the state DFL communications office flings at Republican adversaries.

Second, David Dill (DFL-Crane Lake) chairs the Minnesota House Environment and Natural Resources Policy committee, so it's not as if the six term lawmaker is a layabout freshman backbencher.

Moreover, the powerful chair contracts a statement he made to constituents in his district late in 2013. In Dill, Bakk talk mining in Ely, the Ely Echo reports:

While Dill indicated that he'd support the projects "come hell or high water" if science shows they can meet environmental standards, the sixth-term lawmaker deflected criticism that he and other Range lawmakers sought special treatment or expedited permitting for mining companies. "Not one single time has anybody in the Range delegation asked 'can you hurry this up,'" Dill said of the permitting process. "We're letting this play out." Dill, who said that drainage from one of the proposed mines "goes directly around my dock," said that the "politics is over" related to the projects and that they rest "in the rules and regulations" of environmental protection agencies.

Who knows what/s gotten into the man now that he's left his district. Now that he's hit the hill in St. Paul, he's all for nullifying the Environmental Protection Agency completely. How quickly he's forgotten his answers to his constituents.

Of course, the authors are claiming that the bill just rolled off a turnip truck because of issues their constituents are having, telling Northland News' Kevin Jacobson in Proposed bill would kick EPA to the curb in Minnesota:

. . . new EPA standards would require wood stoves to burn cleaner emissions. Representative Franson says that's what's fueling House File 3094. The proposed measure declares the regulation authority of the EPA violates its own meaning and is invalid. "It's a gesture to the public and to the EPA. Washington doesn't understand our way of life," Rep. Franson said. But the bill isn't all about heat. Representative Jason Metsa (DFL-Virginia) says he signed onto the bill following the EPA's approval of a water quality variance last year for Mesabi Nugget. . . . Representatives Metsa and David Dill both say PolyMet didn't motivate the creation of this bill. They stress the legislation is merely a message to the Environmental Protection Agency to step back. . . .

And so absolutely doesn't make them look like tools for the Tenth Amendment Center or the copycat bill they've signed on with.

UPDATE

There's a different account of the impulse for introduction of bill in the Duluth Tribune article, EPA action on Mesabi Nugget spurs anti-agency bill in state House:

State Rep. David Dill, DFL-Crane Lake, said the bill, HF 3094, was introduced Monday in frustration over federal action that could negatively impact the Mesabi Nugget iron plant near Hoyt Lakes.

That's what the bill's author, Mary Franson told Northland News--she said she introduced it because of a new rule on wood pellets in stoves. Dill also said:

that the bill won’t get a hearing in the House Environment and Natural Resources Committee – even though Dill is the committee chairman – because it was introduced too late to meet the House’s self-imposed Friday deadline for bills to clear committees.

This is peculiar because at least one other bill introduced yesterday got a hearing today. We guessthis is what he means by symbolism.

Photo: Representative David Dill, who was for the EPA before he was against it.

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