WEST VIRGINIA LEGISLATURE

2022 REGULAR SESSION

Introduced

Senate Bill 187

By Senators Martin, Phillips, and Karnes

[Introduced January 12, 2022; referred
to the Committee on Natural Resources; and then to the Committee on the Judiciary]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §22-33-1, §22-33-2, §22-33-3, §22-33-4, and §22-33-5, all relating generally to creating the Natural Resources Anti-Commandeering Act; stating legislative findings; prohibiting agencies of this state and political subdivisions or employees thereof from knowingly and willingly participating in the enforcement of any federal act, law, order, rule, or regulation relating to coal, oil, gas, timber, or other extractive resources which do not exist under the laws of this state; prohibiting assets or funds of the state from being used in activity assisting enforcement of any federal act, law, order, rule, or regulation relating to coal, oil, gas, timber, or other extractive resources which do not exist under the laws of this state; providing penalties therefor; and providing for severability.

Be it enacted by the Legislature of West Virginia:

ARTICLE 33. NATURAL RESOURCES ANTI-COMMANDEERING ACT.

§22-33-1. Short title.

This article shall be known and may be cited as the “Natural Resources Anti-Commandeering Act.”

§22-33-2. Legislative findings.

The Legislature of the State of West Virginia finds that:

(1) It is the intent of the Legislature in enacting this act to protect West Virginia employees, including law-enforcement officers, from being directed, through federal executive orders, agency orders, statutes, laws, rules, or regulations in effect on or after the effective date of this article, to violate their oath of office and rights affirmed under the Tenth Amendment to the Constitution of the United States;

(2) Pursuant to and in furtherance of the principles of federalism enshrined in the Constitution of the United States, and recognized by the United States Supreme Court, the federal government may not commandeer this state’s officers, agents, or employees to participate in the enforcement or facilitation of any federal act or regulatory program; and

(3) This right to be free from the commandeering hand of the federal government has been recognized by the United States Supreme Court in New York v. United States (1992) and Printz v. United States (1997), among other cases, with the court consistently holding that the Federal Government may neither issue directives requiring the states to address particular problems, nor command the states’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program; and

(4) The anti-commandeering principles recognized by the Supreme Court in New York v. United States (1992) and Printz v. United States (1997), among other cases, are predicated upon the advice of James Madison, who in Federalist Number 46 advised “a refusal to cooperate with officers of the Union’’ in response to either unconstitutional federal measures or constitutional but unpopular federal measures.

§22-33-3. Prohibitions.

Other than compliance with an order of the court, notwithstanding any law, regulation, rule, or order to the contrary, no agency of this state, political subdivision of this state, or employee of an agency or political subdivision of this state acting in his or her official capacity may:

(1) Knowingly and willingly participate in any way in the enforcement of any federal act, law, order, rule, or regulation relating to coal, oil, gas, timber, or other extractive resources, or downstream industries related to such extractive resources, if the act, law, order, rule, or regulation does not exist under the laws of this state; or

(2) Utilize any assets, state funds, or funds allocated by the state to local entities on or after the effective date of this article, in whole or in part, to engage in any activity that aids a federal agency, federal agent, or corporation providing services to the federal government in the enforcement or any investigation pursuant to the enforcement of any federal act, law, order, rule, or regulation relating to coal, oil, gas, timber, or other extractive resources, or downstream industries related to such extractive resources, if the act, law, order, rule, or regulation does not exist under the laws of this state.

§22-33-4. Penalties.

(a) Any agent or employee of this state, or of any political subdivision of this state who knowingly violates the prohibitions in §22-32-3 of this code shall, on a first violation, be liable for a civil penalty not to exceed $3,000 which shall be paid into the General Revenue Fund of the state, and on a second or subsequent violation is guilty of a misdemeanor and, upon conviction thereof, fined not more than $1,000 or confined in jail for not less than 60 days nor more than one year, or both fined and confined.

(b) A political subdivision of this state may not receive state grant funds if the political subdivision adopts a rule, order, ordinance, or policy under which the political subdivision violates §22-32-3 of this code. State grant funds for the political subdivision shall be denied for the fiscal year following the year in which a final judicial determination in an action brought under this section is made that the political subdivision has intentionally required actions which violate the prohibitions in §22-32-3 of this code.

§22-33-5. Severability.

The provisions of this article are declared to be severable and if any provision of this article or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration may not affect the validity of the remaining portions of this article.

NOTE: The purpose of this bill is to protect employees of the State of West Virginia and its political subdivisions from being commandeered by a federal agency or other agent to enforce federal regulations and other actions, related to extractive resources or related downstream industries, which do not exist in state law.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.