Unprecedented: EPA Seizes Control Of Air Quality Program From North Dakota

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Written By:
Rob Port

Jul 21, 2011
6:48pm

It’s the first time, ever, the EPA has taken over control of a federal program from a state. Their motivation? North Dakota isn’t administering the program with a heavy enough hand. Though it’s also not hard to imagine why, politically, North Dakota might have a target on its back. We are a model to the rest of the nation for how allowing development of energy can set an economy on fire, and that’s an inconvenient truth for a lot of those in power in Washington DC right now.

This is a big deal:

The federal Environmental Protection Agency will file to take partial control of North Dakota’s air quality program next month.

The EPA will file a notice in the Federal Register Aug. 18 that it, not the State Health Department, will decide how Minnkota Power Cooperative and Basin Electric Power Cooperative will reduce nitrous oxide emissions on Coal Country power plants.

Minnkota’s plant is the Milton R. Young Station in Center and Basin’s is the Leland Olds Station at Center.

It will be the first time in regulatory history that the EPA takes over the state’s authority to manage a federal program, in this instance federal regional haze rules specifically for the two power plants.

Monica Morales, head of EPA Region 8 air quality unit, said the register notice will kick off a 60-day public comment period and the agency has a February deadline to sign a final action.

Governor Dalrymple has been opposing this move by the EPA, saying it’ll cost the state jobs. “The EPA should abide by the Clean Air Act which allows the state to regulate its own industries,” Dalrymple said in a press release earlier this year. “North Dakota has a long and proven history of responsibly overseeing its Clean Air Permit program, but the EPA seems determined to force on us an inappropriate policy that will needlessly impede new development and cost us jobs.” Senator Hoeven and Rep. Rick Berg have opposed it as well.

These companies have already poured tens of millions of dollars into measures to address haze issues – measures that were deemed by the North Dakota Health Department to be adequate – but the EPA says it isn’t enough. Now the tens of millions the companies have already spent is at risk, and the state is left having to square off against the federal government in court to fight off this power grab.

The legislature, in session earlier this year, appropriated funds for just such a legal battle but one bill which would have strengthened the state’s case was legislation introduced by Rep. Jim Kasper nullifying the EPA’s authority in the state.

HB1287 was a simple bill, stating that “Rules adopted by the environmental protection agency are null and void and of no force and effect in this state without the approval of the state agency with subject matter jurisdiction in the area governed by the rule.”

Unfortunately, North Dakota’s legislators were skeptical of these sort of bills asserting states rights due to opposition and earnest lobbying efforts from Attorney General Wayne Stenehjem.

If only they’d been a bit more forward-looking, and mindful of the need to protect the sovereignty of North Dakota against federal encroachment, the state might be in a better position to beat back the EPA.