HOUSE CONCURRENT RESOLUTION NO. 104

(By Delegates Folk, Speaker Armstead, Ambler, Arvon, Azinger, Blair, Butler, Byrd, Cadle, Campbell, Canterbury, Cooper, Deem, Ellington, A. Evans, D. Evans, Faircloth, Fast, Folk, Foster, Frich, Guthrie, Hamilton, Hamrick, Hanshaw, Hartman, Hicks, Hill, Householder, Howell, Ihle, Kelly, Kessinger, Kurcaba, Lynch, Marcum, McGeehan, Moffatt, Moye, J. Nelson, O’Neal, Overington, R. Phillips, Reynolds, Rodighiero, Rohrbach, Romine, Rowan, Shott, R. Smith, Sobonya, Sponaugle, Stansbury, Statler, Storch, Summers, Upson, Walters, Waxman, Weld, B. White, H. White, Williams and Zatezalo)

Requesting the Congress of the United States invoke the Congressional Review Act to invalidate the proposed rule published in the Federal Register entitled "Definition of Waters of the United States Under the Clean Water Act " (79 Fed. Reg. 22188 (April 21, 2014)) and the proposed rule published in the Federal Register entitled "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units" (79 Fed. Reg. 34830 (June 18, 2014)), in the event that either or both of the proposed rules go into effect.

            Whereas, The Tenth Amendment to the United States Constitution guarantees to the states and their people all powers not granted to the federal government elsewhere in the Constitution and reserves to the state and people of West Virginia certain powers as they were understood at the time that West Virginia was admitted to statehood in 1863. The guaranty of those powers is a matter of contract between the state and people of West Virginia and the United States as of the time that the compact with the United States was agreed upon and adopted by West Virginia and the United States in 1863; and

            Whereas, The Ninth Amendment to the United States Constitution guarantees to the people rights not granted in the Constitution and reserves to the people of West Virginia certain rights as they were understood at the time that West Virginia was admitted to statehood in 1863. The guarantee of those rights is a matter of contract between the state and people of West Virginia and the United States as of the time that the compact with the United States was agreed upon and adopted by West Virginia and the United States in 1863; and

            Whereas, The regulation of intrastate commerce, including the natural environment as affected by intrastate business, is vested in the states under the Ninth and Tenth Amendments to the United States Constitution and is specifically retained by the State of West Virginia according to Section 2, Article I of the West Virginia Constitution; and

            Whereas, Section 101(g) of the Clean Water Act expressly states that it is "the authority of each state to allocate quantities of water within its jurisdiction [that] shall not be superseded, abrogated, or otherwise impaired by this act." Therefore, it is the duty of the Legislature of this state to adopt any and all measures as may be necessary to prevent the proposed rule described in section (a) and its effect on the property rights of the citizens of the State of West Virginia; and

            Whereas, Section 7416 of the Clean Air Act expressly states that "nothing in this Act shall preclude or deny the right of any state or political subdivision thereof to adopt or enforce: (1) Any standard or limitation respecting emissions of air pollutants; or (2) any requirement respecting control or abatement of air pollution [. . .]"; and

            Whereas, The Congressional Review Act, 5 U.S.C. §801, et seq. allows Congress to review new federal regulations issued by government agencies and overrule a regulation by passage of a joint resolution; therefore, be it

            Resolved by the Legislature of West Virginia:

            That the State of West Virginia hereby respectfully urges the Congress of the United States to exercise its powers under the Congressional Review Act to invalidate the proposed rules described herein, in the event that either or both of the proposed rules go into effect; and, be it

            Further Resolved, That the State of West Virginia forward official copies of the resolution to the President of the United States, to the President of the Senate and Speaker of the House of Representatives of the United States Congress with the request that this resolution be officially entered into the Congressional Record as a memorial to the Congress of the United States of America.