By Yost H.B. No. 2144
74R5650 JJT-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the implementation of federal environmental mandates
1-3 and the protection of state sovereignty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 7, Government Code, is amended by adding
1-6 Chapter 792 to read as follows:
1-7 CHAPTER 792. FEDERAL MANDATES ACT
1-8 Sec. 792.001. SHORT TITLE. This chapter may be cited as the
1-9 Federal Mandates Act.
1-10 Sec. 792.002. FINDINGS AND PURPOSE. (a) The legislature
1-11 finds that the people of the state, through elected state
1-12 government officials, have primary responsibility and authority to
1-13 implement in and for the state the federal environmental policy
1-14 embodied in federal statutes.
1-15 (b) The legislature does not intend to challenge the
1-16 authority of the United States Congress to establish national
1-17 environmental policy or to challenge the jurisdiction of the
1-18 federal judiciary. The legislature intends to assure the primacy
1-19 of the state's legal and political authority to implement in and
1-20 for the state the environmental policy embodied in federal
1-21 environmental statutes and to challenge the extent and scope of
1-22 authority asserted by federal executive branch agencies when
1-23 federal agency actions or interpretations of law are inconsistent
1-24 with the state's environmental policy, exceed the lawful authority
2-1 of the federal government, or are not required by federal law.
2-2 (c) The legislature finds that:
2-3 (1) the power to implement federal environmental
2-4 policies in and for the state is central to the ability of the
2-5 people of the state to govern themselves under a federal system of
2-6 government; and
2-7 (2) the implementation of a federal environmental
2-8 policy in and for the state by a federal executive branch agency in
2-9 a manner contrary to fundamental tenets of federalism and
2-10 self-determination must be identified and countered.
2-11 (d) The legislature finds and declares that:
2-12 (1) there is an urgent need to modify the laws and
2-13 policies regarding federal environmental mandates because the
2-14 current legal structure governing the implementation of these
2-15 mandates by the state:
2-16 (A) wastes the state's financial resources;
2-17 (B) does not properly respect the rights of the
2-18 state; and
2-19 (C) does not provide the best method for
2-20 protecting the environment in the state; and
2-21 (2) state government has an obligation to the public
2-22 to do what is necessary to protect the environment under federal
2-23 law without:
2-24 (A) incurring any unnecessary cost; and
2-25 (B) placing any unnecessary burden on any state
2-26 citizen.
2-27 (e) The Tenth Amendment to the United States Constitution
3-1 provides that powers that are not delegated to the United States by
3-2 the constitution are reserved to the states or to the people. In
3-3 the context of preserving and protecting the environment of the
3-4 state, the reservation of power in the states means that any aspect
3-5 of environmental policy that has not been clearly established by
3-6 the United States government by federal statute has been left to
3-7 the states to implement.
3-8 (f) Certain federal regulatory mandates, as reflected in
3-9 federal administrative regulations, guidelines, and policies, do
3-10 not reflect the realities of the geographical and ecological
3-11 diversity of the state. Federal regulators frequently do not
3-12 understand the needs and priorities of the state's citizens
3-13 regarding environmental policies.
3-14 (g) The state's citizens can create and wish to create
3-15 innovative solutions to environmental problems, but the manner in
3-16 which legal challenges to state policies and federal programmatic
3-17 substitutions of state programs are handled does not allow the
3-18 state the flexibility required to foster innovation. It is not
3-19 possible for the state to effectively and efficiently implement the
3-20 provisions of federal environmental statutes unless the burden to
3-21 prove the insufficiency of the state's efforts to implement federal
3-22 requirements is shifted to the person or agency who challenges the
3-23 sufficiency of the efforts.
3-24 (h) This chapter will better balance the exercise of the
3-25 powers of the federal government and the powers reserved to the
3-26 states. The application of this chapter ultimately will bring
3-27 about greater environmental protection for the state and the United
4-1 States, because the chapter will:
4-2 (1) allow the state to guard the environment and
4-3 implement federal environmental statutes at the least possible
4-4 cost, thereby freeing resources for other needs; and
4-5 (2) provide the federal government with vital
4-6 information regarding the best methods of protecting the
4-7 environment under the specific conditions present in the state.
4-8 Sec. 792.003. DEFINITIONS. In this chapter, "federal
4-9 environmental statute" means a federal statute regarding
4-10 environmental health and quality, including:
4-11 (1) the federal Safe Drinking Water Act (42 U.S.C.
4-12 Section 300f et seq.);
4-13 (2) the federal Clean Air Act (42 U.S.C. Section 7401
4-14 et seq.);
4-15 (3) the Federal Water Pollution Control Act (33 U.S.C.
4-16 Section 1251 et seq.);
4-17 (4) the federal Solid Waste Disposal Act, as amended
4-18 by the federal Resource Conservation and Recovery Act of 1976 (42
4-19 U.S.C. Section 6901 et seq.);
4-20 (5) the federal Comprehensive Environmental Response,
4-21 Compensation, and Liability Act of 1980 (42 U.S.C. Section 9601 et
4-22 seq.);
4-23 (6) the federal Superfund Amendments and
4-24 Reauthorization Act of 1986 (Pub.L. No. 99-499); and
4-25 (7) the federal Endangered Species Act of 1973 (16
4-26 U.S.C. Section 1531 et seq.).
4-27 Sec. 792.004. STATE PROGRAMS TO IMPLEMENT FEDERAL
5-1 ENVIRONMENTAL STATUTES. (a) A state officer, official, or
5-2 employee charged with implementing any federal environmental
5-3 statute shall implement the law as required by the federal statute
5-4 in good faith. The officer, official, or employee shall review any
5-5 related federal regulation, guideline, or policy in order to
5-6 identify provisions of the regulation, guideline, or policy that:
5-7 (1) are inconsistent with state environmental policy;
5-8 or
5-9 (2) do not advance state environmental policy in a
5-10 cost-effective manner.
5-11 (b) An executive state agency that is authorized to develop
5-12 a state program to respond to a mandate contained in a federal
5-13 environmental statute shall develop the state program and adopt any
5-14 necessary rules in accordance with this section. A state program
5-15 shall:
5-16 (1) be developed by the agency to meet the
5-17 requirements of federal environmental statutes in good faith with a
5-18 view toward discerning those federal regulations, guidelines, or
5-19 policies that may be inconsistent with state environmental policy
5-20 or that are not cost-effective;
5-21 (2) be developed with consideration of the financial
5-22 restraints of the state, including the limitations imposed by
5-23 Section 49, Article III, Texas Constitution; and
5-24 (3) protect the environment using the most efficient
5-25 method practicable, with careful consideration given to the cost of
5-26 the program and the impact of the program on the state's citizens
5-27 and local governments.
6-1 (c) A state agency charged with implementing a federal
6-2 environmental statute shall provide a report to the Legislative
6-3 Budget Office regarding its rules adopted in response to a federal
6-4 mandate and its findings under this section as a part of the
6-5 agency's biennial appropriation request.
6-6 Sec. 792.005. BUDGETARY SAVINGS. (a) The Legislative
6-7 Budget Board shall:
6-8 (1) oversee the implementation of this chapter; and
6-9 (2) oversee the Legislative Budget Office's operations
6-10 under Subsections (b), (c), and (d).
6-11 (b) All state funding for a state program that is mandated
6-12 by a federal environmental statute is dependent upon proof that the
6-13 program is necessary to protect the environment and public health
6-14 or is necessary to implement the federal environmental statute.
6-15 The Legislative Budget Office shall recommend to the legislature
6-16 whether a state program is necessary and exercise a discerning view
6-17 toward the interpretation of the federal environmental statute
6-18 found in federal regulations, guidelines, or policies. Proof that
6-19 a state program is required by regulations, guidelines, or policies
6-20 of a federal agency does not constitute proof that a state
6-21 regulation or policy is necessary to protect the environment and
6-22 public health or is required by a federal environmental statute.
6-23 (c) Before the Legislative Budget Office recommends a budget
6-24 for a state agency that is charged with implementing federal
6-25 environmental mandates, the Legislative Budget Office shall require
6-26 the state agency to provide to the Legislative Budget Office:
6-27 (1) information regarding any monetary savings for the
7-1 state and any reduction in regulatory burdens on the public or
7-2 local governments that could be or have been achieved through the
7-3 development of state environmental policies that meet the intent of
7-4 the federal environmental statute but do not comply with all
7-5 applicable federal regulations, guidelines, or policies; and
7-6 (2) advice regarding changes in state statutes that
7-7 are necessary to provide the state agency the authority to
7-8 implement state environmental policies in such a manner so as to
7-9 create additional monetary savings or greater reductions in
7-10 regulatory burdens.
7-11 (d) With the assistance of the attorney general, the
7-12 Legislative Budget Office shall study all federally mandated
7-13 programs and other federally mandated demands to determine the cost
7-14 to state government of the mandates and the cost of compliance with
7-15 the mandates for individuals and businesses in the state. The
7-16 Legislative Budget Office shall prepare a report for members of the
7-17 legislature, the governor, and the lieutenant governor that
7-18 provides the costs of the federally mandated programs and other
7-19 federally mandated demands and also provides the possible federal
7-20 funding that the state receives that might be withdrawn or
7-21 discontinued if the mandate is not implemented or, if the mandate
7-22 is already implemented, if the state statutes or rules implementing
7-23 the mandate or demand are repealed.
7-24 Sec. 792.006. INVESTIGATION OF METHODS TO FULLY EXERCISE
7-25 STATE AUTHORITY. (a) The attorney general shall investigate
7-26 methods by which the state may use the state and federal judicial
7-27 systems to gain authority to flexibly implement federal mandates
8-1 under the state and federal judicial systems. The attorney general
8-2 shall recommend to the Constitutional Defense Council, the
8-3 governor, and the legislature any action that the state should take
8-4 regarding federal mandates, including legal challenges to federal
8-5 mandates imposed by the United States Congress.
8-6 (b) The attorney general shall consider including
8-7 recommendations for changes to federal law that the legislature may
8-8 request the United States Congress to make.
8-9 Sec. 792.007. STUDY REGARDING FEDERAL MANDATES REPORT. (a)
8-10 The attorney general shall study federal mandates that are imposed
8-11 on the state and identify those mandates that:
8-12 (1) are inconsistent with state policy;
8-13 (2) go beyond the requirements of state law;
8-14 (3) cause adoption of any state law under threat of
8-15 federal sanction; or
8-16 (4) are incorporated into state law but are not fully
8-17 funded by the federal government.
8-18 (b) The attorney general shall prepare a report for the
8-19 Constitutional Defense Council, the governor, and the legislature
8-20 that includes all federal mandates that the attorney general
8-21 identifies under Subsection (a).
8-22 SECTION 2. Chapter 322, Government Code, is amended by
8-23 adding Section 322.014 to read as follows:
8-24 Sec. 322.014. COMPLIANCE WITH FEDERAL MANDATES ACT. The
8-25 board shall oversee the implementation of and shall enforce Chapter
8-26 792, Government Code, in the budgeting process.
8-27 SECTION 3. The importance of this legislation and the
9-1 crowded condition of the calendars in both houses create an
9-2 emergency and an imperative public necessity that the
9-3 constitutional rule requiring bills to be read on three several
9-4 days in each house be suspended, and this rule is hereby suspended,
9-5 and that this Act take effect and be in force from and after its
9-6 passage, and it is so enacted.