II 

112TH CONGRESS 

2D SESSION S. 3573 

To recognize the primacy of States, provide for the consideration of the 

economic impact of additional regulations, and provide for standards 

and requirements relating to certain guidelines and regulations relating 

to health and the environment. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 19, 2012 

Mr. HOEVEN (for himself and Ms. MURKOWSKI) introduced the following bill; 

which was read twice and referred to the Committee on Environment and 

Public Works 

A BILL 

To recognize the primacy of States, provide for the consideration of the economic impact of additional regulations, 

and provide for standards and requirements relating to 

certain guidelines and regulations relating to health and 

the environment. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Empower States Act 

5 of 2012’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that— 


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1 (1) the United States is dependent on adequate, 

2 affordable energy supplies from diverse sources for 

3 continued economic stability and growth, national 

4 security, and maintenance and enhancement of the 

5 quality of life of the people of the United States; 

6 (2) domestically produced natural gas and oil 

7 provide jobs and economic opportunity to the people 

8 of the United States and revenue to the States, in9 cluding educational programs of the States; 

10 (3) volatile energy prices, as well as dependence 

11 on oil from Middle East sources, have a detrimental 

12 effect on the economy and security of the United 

13 States; 

14 (4) States have a long record of protecting 

15 human health and the environment while enabling 

16 increased energy development; 

17 (5) hydraulic fracturing is, and has been for 

18 decades, a common operation used in exploration 

19 and production by the oil and gas industry; 

20 (6) the regulation of oil and gas exploration and 

21 production activities, including hydraulic fracturing, 

22 has traditionally been the within the province of the 

23 States; and 


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1 (7) States, that regulate oil and gas production, 

2 have comprehensive laws and regulations to ensure 

3 safe operations and drinking water. 

4 SEC. 3. STATE PRIMACY REGARDING SAFE DRINKING 

5 WATER. 

6 (a) AUTHORITY OF ADMINISTRATOR.—Section 1414 

7 of the Safe Drinking Water Act (42 U.S.C. 300g–3) is 

8 amended— 

9 (1) in subsection (b), by striking ‘‘(b) The Ad10 ministrator’’ and all that follows through ‘‘The court 

11 may enter’’ and inserting the following: 

12 ‘‘(b) ENFORCEMENT ACTIONS.— 

13 ‘‘(1) IN GENERAL.—Subject to paragraph (2), 

14 the Administrator may bring a civil action in the ap15 propriate United States district court to require 

16 compliance with any applicable requirement, with an 

17 order issued under subsection (g), or with any 

18 schedule or other requirement imposed pursuant to 

19 a variance or exemption granted under section 1415 

20 or 1416, if the order, schedule, or other requirement 

21 is— 

22 ‘‘(A) authorized under paragraph (1) or 

23 (2) of subsection (a); or 

24 ‘‘(B) requested by— 


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1 ‘‘(i) the chief executive officer of the 

2 State in which is located the public water 

3 system that is not in compliance with such 

4 regulation or requirement; or 

5 ‘‘(ii) the State agency with jurisdic6 tion over compliance by public water sys7 tems in the State with national primary 

8 drinking water regulations or State drink9 ing water regulations. 

10 ‘‘(2) REQUIREMENT.—Notwithstanding para11 graph (1), the Administrator may not take any en12 forcement action against a State that has primary 

13 enforcement responsibility for public water systems 

14 (within the meaning of section 1413(a)) or a com15 pany or individual within the State pursuant to this 

16 subsection, section 1423, or any other provision of 

17 law, unless— 

18 ‘‘(A) the Administrator determines that 

19 there is an imminent and substantial danger to 

20 the public health or environment; and 

21 ‘‘(B) the State failed to take corrective ac22 tion. 

23 ‘‘(3) ACTION BY COURT.—The court may 

24 enter’’; 


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1 (2) by redesignating subsections (h) and (i) as 

2 subsections (i) and (j), respectively; and 

3 (3) by inserting after subsection (g) the fol4 lowing: 

5 ‘‘(h) AMENDMENT OR REVOCATION.—The Adminis6 trator may not amend or revoke any program of a State 

7 with partial or total primary enforcement responsibility 

8 under this section unless the Administrator determines, by 

9 clear and convincing evidence, that the program fails to 

10 effectively protect drinking water in the State.’’. 

11 (b) REGULATIONS.—Part E of the Safe Drinking 

12 Water Act (42 U.S.C. 300j et seq.) is amended by adding 

13 at the end the following: 

14 ‘‘SEC. 1459. REGULATIONS. 

15 ‘‘(a) COMMENTS RELATING TO OIL AND GAS EXPLO16 RATION AND PRODUCTION.—Before issuing or promul17 gating any guideline or regulation relating to oil and gas 

18 exploration and production on Federal, State, tribal, or 

19 fee land pursuant to this Act, the Federal Water Pollution 

20 Control Act (33 U.S.C. 1251 et seq.), the Clean Air Act 

21 (42 U.S.C. 7401 et seq.), or any other provision of law 

22 or Executive order, the head of a Federal department or 

23 agency shall seek comments from and consult with the 

24 head of each affected State, State agency, and Indian tribe 


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1 at a location within the jurisdiction of the State or Indian 

2 tribe, as applicable. 

3 ‘‘(b) STATEMENT OF ENERGY AND ECONOMIC IM4 PACT.—Each Federal department or agency shall develop 

5 a Statement of Energy and Economic Impact, which shall 

6 consist of a detailed statement and analysis supported by 

7 credible objective evidence relating to— 

8 ‘‘(1) any adverse effects on energy supply, dis9 tribution, or use, including a shortfall in supply, 

10 price increases, and increased use of foreign sup11 plies; and 

12 ‘‘(2) any impact on the domestic economy if the 

13 action is taken, including the loss of jobs and de14 crease of revenue to each of the general and edu15 cational funds of the State or affected Indian tribe. 

16 ‘‘(c) REGULATIONS.— 

17 ‘‘(1) IN GENERAL.—A Federal department or 

18 agency shall not impose any new or modified regula19 tion unless the head of the applicable Federal de20 partment or agency determines— 

21 ‘‘(A) that the rule is necessary to prevent 

22 immediate harm to human health or the envi23 ronment; and 

24 ‘‘(B) by clear and convincing evidence, that 

25 the State or Indian tribe does not have an exVerDate Mar 15 2010 00:20 Sep 25, 2012 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3573.IS S3573

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1 isting reasonable alternative to the proposed 

2 regulation. 

3 ‘‘(2) DISCLOSURE.—Any Federal regulation 

4 promulgated on or after the date of enactment of 

5 this paragraph that requires disclosure of hydraulic 

6 fracturing chemicals shall refer to the database man7 aged by the Ground Water Protection Council and 

8 the Interstate Oil and Gas Compact Commission (as 

9 in effect on the date of enactment of this Act). 

10 ‘‘(d) JUDICIAL REVIEW.— 

11 ‘‘(1) IN GENERAL.—With respect to any regula12 tion described in this section— 

13 ‘‘(A) a State or Indian tribe adversely af14 fected by an action carried out under the regu15 lation shall be entitled to review by a United 

16 States district court located in the State or the 

17 District of Columbia of compliance by the appli18 cable Federal department or agency with the 

19 requirements of this section; 

20 ‘‘(B) an entity that is adversely affected by 

21 an action carried out under the regulation— 

22 ‘‘(i) may intervene in a review action 

23 carried out under subparagraph (A) by the 

24 State in which the adverse effect to the en25 tity has occurred or would occur; and 


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1 ‘‘(ii) shall be entitled to the same judi2 cial review as a State under subparagraph 

3 (A) if, not later than 90 days after the 

4 date of receipt of a petition from the enti5 ty, the State in which the adverse effect to 

6 the entity has occurred or would occur fails 

7 to seek judicial review pursuant to sub8 paragraph (A). 

9 ‘‘(2) ACTION BY COURT.— 

10 ‘‘(A) IN GENERAL.—A district court pro11 viding review under this subsection may enjoin 

12 or mandate any action by a relevant Federal 

13 department or agency until the district court 

14 determines that the department or agency has 

15 complied with the requirements of this section. 

16 ‘‘(B) DAMAGES.—The court shall not order 

17 money damages. 

18 ‘‘(3) SCOPE AND STANDARD OF REVIEW.—In 

19 reviewing a regulation under this subsection— 

20 ‘‘(A) the court shall not consider any evi21 dence outside of the record that was before the 

22 agency; and 

23 ‘‘(B) the standard of review shall be de 

24 novo.’’. 

Æ 


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