MORGANTOWN — State Attorney General Patrick Morrisey joined in multi-state actions against the CDC and EPA on Tuesday.
In the first action, Morrisey joined a 23-state amicus (friend of the court) brief led by Florida asking the U.S. Court of Appeals for the 11th Circuit to affirm a lower court’s ruling that the Centers for Disease Control and Prevention lacks statutory authority “to require that virtually all persons wear masks while traveling.”
Morrisey commented in a release announcing the brief, “The U.S. District Court Middle District of Florida made the correct decision, ruling the CDC’s nationwide mask mandate in public transportation was unlawful. This is another case of a federal agency overstepping its boundaries and deciding what should be left to state and local governments to decide.”
The brief lists several reasons for believing the CDC overstepped.
Among them, federal code allows for CDC “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings and other measures.”
The states say the code authorizes the CDC “to demand cleaning, but it does not authorize CDC to require any action that may result in cleanliness, much less on a nationwide basis. A mask does not clean anything. Rather, it traps respiratory droplets in place, without regard to whether infection is present.”
By law, the CDC cannot demand that domestic travelers be examined without evidence that they are carrying disease. “But that is exactly what the mask mandate requires. It demands that every traveler be visually inspected — that is, examined — without any individualized suspicion.”
And finally, the CDC failed to go through notice and comment procedures and provided no justification for that failure.
The states say the CDC’s rule violates its own regulations. “CDC regulations say that it cannot act unless it finds local measures inadequate. But here, CDC never even studied local measures, much less developed a method to determine whether those measures are adequate.”
Neighbors Kentucky, Ohio and Virginia are among the states joining the brief.
In the other action, Morrisey is co-leading a letter to the EPA concerning a recent proposal to regulate greenhouse gases through the National Ambient Air Quality Standards (NAAQS).
Morrisey and Kentucky Attorney General Daniel Cameron are co-leading the letter — joined by 19 other states — written in response to a July 28 letter to the EPA from attorneys general of eight other states suggesting that the EPA wields “newly discovered authority” under the Clean Air Act in light of the U.S. Supreme Court’s decision in favor of West Virginia in West Virginia v. U.S. Environmental Protection Agency.
Morrisey said in his announcement, “These states have a misunderstanding of what the Supreme Court ruled in West Virginia v. EPA. The court clearly stated EPA must regulate within the express boundaries of the statute that Congress passed. The EPA cannot exercise expansive power that Congress did not clearly give — either directly or indirectly — to reach the outcome our colleagues who wrote the letter urge.”
The letter says that using NAAQS, as the other eight states proposed, would not be consistent with the Clean Air Act and would be destructive. They urge the EPA to “reject the suggestions of the July 28, 2022, letter.”
The July 28 letter, led by Oregon and Minnesota, says, “We urge you to consider a different section of the [Clean Air] Act and approach — NAAQS — to protect our air, and thus, our planet. Section 108 of the Act is explicit: If a pollutant ‘may reasonably be anticipated to endanger public health or welfare,’ and its ‘presence … in the ambient air results from numerous or diverse mobile or stationary sources,’ the EPA is authorized to establish NAAQS. Using NAAQS, the EPA sets a maximum level of a pollutant, and then the states must take the necessary steps to ensure that the level is not exceeded.”
They conclude, “Limiting the level of greenhouse gases in the air is central to preventing global temperature rise and concomitant climate disaster. … We do not presume to suggest at what level NAAQS should be set — that should be up to EPA’s scientific judgment. But one option might be to adopt a carbon dioxide NAAQS that mirrors the Paris Agreement.”
Neighbors Ohio and Virginia are among the states joining West Virginia and Kentucky in the new letter. Neighbor Pennsylvania was among the six states joining Oregon and Minnesota on the July 28 letter.
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