Environment

A bill pre-filed in the General Assembly would declare Kentucky a “sanctuary state” for people and companies who don’t want to follow federal environmental laws that will restrict carbon dioxide emissions from power plants.

The bill is sponsored by state Rep. Jim Gooch, a Democrat from Providence in Western Kentucky. It would block the state Energy and Environment Cabinet from promulgating regulations on carbon dioxide under any federal rule or plan unless either the General Assembly authorizes the action, or the U.S. Congress officially designates carbon dioxide as a criteria pollutant. The measure also declares Kentucky a sanctuary state from the regulations.

Kentucky is already a party to a lawsuit over the EPA’s federal Clean Power Plan, which will require the state to make steep cuts in emissions. That lawsuit challenges the legality of the agency proposing the regulations under a certain section of the Clean Air Act. But Gooch said no one else is fighting the regulation under what he’s proposing.

The federal government has “no legitimacy to enforce one law when they choose to ignore another law,” he said, citing instances where states have legalized marijuana or cities have announced they won’t prosecute people accused of certain immigration violations.

The idea of states creating a sanctuary for carbon dioxide pollution — with identical logic — is one that’s also been floated by conservative West Virginia blogger (and former newspaper columnist) Don Surber in a blog post last month. Though similar sample legislation on fighting the EPA’s carbon dioxide regulations has been drafted by the influential conservative group American Legislative Exchange Council, nothing similar is published on the group’s website.

Tom FitzGerald of the Kentucky Resources Council said Gooch’s argument doesn’t hold water. Kentucky has chosen to administer federal Clean Air Act programs — such as the Clean Power Plan — and years ago the General Assembly gave the federal government authority to develop a regulatory program.

“You can call yourself a sanctuary state, you can call yourself whatever you want to, legally the choices that you have are to continue to maintain and implement the programs that you have sought delegation for, or to default and let the federal government run those programs,” said FitzGerald, an environmental attorney. “But the idea that you’re going to stand at the border and say, ‘We are a sanctuary state and you have no power here’ is absurd.”

Jim GoochLegislative Research Commission

Jim Gooch

FitzGerald added that the federal government — like states — has discretion to decide which cases they will prosecute. But the Clean Power Plan involves the adoption and implementation of regulations, where there’s no discretion.

But if Gooch’s bill becomes law, it remains to be seen whether it will affect the Kentucky Energy and Environment Cabinet’s ability to construct a state plan to comply with the rules. Before his election, Gov. Matt Bevin indicated he wouldn’t submit a plan. This would mean Kentucky would be subject to a federal plan, which could be more stringent. Bevin hasn’t addressed the issue since he was elected last month.

At a legislative committee meeting in mid-November, Gooch told WFPL that he would support turning in an outline for a state plan by September, which would buy the state more time to work out a final draft.

“I do think that we realize that litigation may not be successful and if it’s not, there’s no question in my mind that having more time to try to work through these issues is going to be beneficial to the state,” Gooch said at the time. “We can actually submit a state plan, ask for more time, while we’re continuing the litigation. It’s not an either/or strategy, but I do think it’s in our best interest to try to buy more time to comply.”

The General Assembly has already passed one Gooch-sponsored bill — in 2014 — that could limit what the state cabinet could do if Bevin chooses to promulgate a plan. Cabinet spokesman Dick Brown said regulators were still studying Gooch’s newest proposal.

“The cabinet is aware of the bill request by Rep. Gooch. We are still studying the details and its possible implications,” Brown said. “Like Rep. Gooch, we are also concerned about any economic impact the Clean Power Plan would have on Kentucky and its very important manufacturing industry.”

The General Assembly reconvenes Jan. 5.