Tenth Amendment Blog

SACRAMENTO, Calif. (Nov. 12, 2019) – A new law will undermine efforts by the Trump administration to expand oil and gas drilling on federal lands in California by prohibiting the construction of pipelines or other infrastructure on state lands.

Asm. Al Muratsuchi (D-Rolling Hills Estates) and Sen. Hannah-Beth Jackson (D- Santa Barbara) sponsored Assembly Bill 342 (AB342), The legislation prohibits any state agency with leasing authority over California public lands from allowing the construction of new oil or gas infrastructure intended to support oil and natural gas production on federal lands now or previously designated as federally protected.

The bill does not affect oil or natural gas production on state lands or waters. Nor does the law extend the prohibition to private land.

The Assembly passed AB342 by a 51-19 vote. The Senate passed the measure 23-9. With Gov. Gavin Newsome’s signature on Oct. 12, the law will go into effect Jan. 1, 2020.

By blocking the transportation of oil and natural gas across state lands that adjoin federal lands, California will throw a roadblock in front of companies wanting to drill for oil or gas on federal lands. According to the LA Times, the prohibition includes “state lands near the Carrizo Plains National Monument in San Luis Obispo County, an area known for its spectacular wildflower blooms and potentially large reserves of oil and gas.”

“This bill is all about California fighting the Trump administration’s plan to frack and drill in some of our most beautiful federal protected lands and national monuments,” Muratsuchi told the LA Times.

The new law is a response to Trump Administration plans to open up federal lands in California to oil and gas production. The federal government controls nearly 48 percent of the lands in California. Last April, the Trump administration announced a plan to open more than a million acres of public and private land in California to fracking, The move ended a five-year moratorium on leasing federal land in California to oil and gas developers.

AB343 is similar to a bill signed last year by Gov. Jerry Brown that was intended to block offshore oil drilling by prohibiting the construction of pipelines, piers, wharves or other infrastructure necessary to transport the oil and gas from federal waters to state land.

The strategy used by California is similar to the one used by Nevada to block the construction of a nuclear waste facility on Yucca Mountain. The Department of Energy (DOE) filed five applications to obtain the water it needed to begin drilling and constructing the facility. Each time, the state of Nevada denied the permits and refused to grant access to the water. Without water, the Yucca Mountain waste dump project was stopped cold.

This strategy follows the blueprint laid out by James Madison in Federalist #46 where he advised: “a refusal to cooperate with offers of the union” when the federal government commits an “unwarrantable” or unpopular act. This provides an extremely effective means of confronting federal power. The feds depend on state cooperation and resources to enforce nearly all of its laws and to implement all of its programs.

The new law rests on solid legal ground – a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. 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. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”