The President’s Spilled-Milk Joke
One of President Obama’s better applause lines the other night came when he stepped into the unaccustomed public role of a deregulator:
We got rid of one rule from 40 years ago that could have forced some dairy farmers to spend $10,000 a year proving that they could contain a spill — because milk was somehow classified as an oil. With a rule like that, I guess it was worth crying over spilled milk.
I will note for the record that we had made a bit of a hobbyhorse of EPA’s dairy-oil-spill controls, taking note of them in no fewer than four posts as the sort of regulatory overkill the Obama administration should disavow. House Republicans complain that the president is now putting himself at the head of someone else’s parade, since their members had long urged repeal of the rules and the Obama EPA under administrator Lisa Jackson had dragged its heels about going along. But I’m not going to complain. The ability to get out in front of the other side’s parades served President Bill Clinton well, and I just wish President Obama would use it more often.
EPA Actions Should Be Subject to Judicial Review
Michael and Chantelle Sackett bought some Idaho land and began placing gravel fill on the site to prepare for laying a foundation for their dream home. Then they got something from the EPA: a “Compliance Order,” declaring that they were in violation of the Clean Water Act, because their land had been deemed a “wetland” subject to federal jurisdiction.
By beginning construction without a federal permit, the Sacketts were breaking the law and exposing themselves to civil and possibly criminal penalties, according to the Order. The Order instructed them to stop their construction and restore the property to its “original state” — it even told them what type of shrubbery to plant on the site, and exactly where to plant it. If they failed to comply with the order, they were subject to $37,500 fines per day.
The Sacketts were, understandably, shocked: they had no reason to think their property was a wetland; their neighbors had been allowed to build homes, and there was no indication in their title documents that the land was subject to federal control. So they asked for a hearing — and that was when they learned that the Compliance Order process does not entitle them to a hearing. They must either comply with the Order immediately to avoid the fines, or play chicken with the EPA — waiting until the EPA decides to file an “enforcement action.” At that time, they would be allowed to present their arguments that the land is not actually a “wetland.” But of course, by that time, the fines would have accumulated to hundreds of thousands or millions of dollars.
Worse, these Compliance Orders are issued by a single EPA bureaucrat, on the basis of “any evidence.” That’s the language of the statute itself — and federal courts have interpreted “any evidence” to mean even an anonymous phone call or a newspaper story.
And a Compliance Order doesn’t just demand that you obey EPA’s orders or face fines — ignoring a Compliance Order is a separately punishable offense against federal law, aside from the liability for any environmental damage. In other words, you can face penalties for violating the Clean Water Act and also for ignoring a Compliance Order. Worse still, ignoring a Compliance Order can serve as the basis of a finding of “wilfulness,” and thus the basis of criminal charges.
Pacific Legal Foundation represents the Sacketts and argues that they should have their day in court — either under federal statutes like the Administrative Procedure Act or under the Due Process Clause — without having to face the possibility of devastating penalties. PLF lawyer Damien Schiff argued the case today before the Supreme Court; while the justices were active in probing the weaknesses of both sides, the government’s lawyer didn’t do the EPA any favors. So today may have ended being a very good day for the Sacketts, even if the New York Times editorial page took the alarmist stance that allowing them to seek pre-enforcement judicial review would be a ”big victory to corporations and developers who want to evade the requirements of the Clean Water Act.”
The case is Sackett v. EPA; read the argument transcript here and the briefs here.
This blogpost was coauthored by adjunct scholar Timothy Sandefur, who is a principal attorney at PLF and wrote about the case in Regulation magazine.
EPA Backs Off Dust Standard
Are there enough data points yet to call it a trend? I think there are: the Environmental Protection Agency is now backing off a whole series of deeply unpopular Obama-era initiatives. This time it’s the idea of tightening the federal standard for coarse airborne particulates—better known as “dust”—from the current 150 micrograms per cubic meter to a figure somewhere between 65 and 85, depending on what assumptions are used. That change could have dealt a tough economic blow to businesses, notably farms and ranches, that kick up quantities of dirt in the ordinary course of operation. Unfortunately, the EPA—unable to resist the urge to lash out against its critics—is being less than candid about its latest turnabout.
The retreats have been coming steadily in recent months, since President Obama’s popularity ratings began to tank. In July, following protests from Sen. Olympia Snowe (R-ME) and other lawmakers, the administration dropped a proposal that would have required lead-dust lab testing as part of even relatively minor renovations to older homes. Last month it scuttled costly new smog regulations. A couple of weeks ago it relaxed its so-called Cross-State Air Pollution Rule, which was menacing the continued operation of power plants. And it remains under heavy pressure to scrap its ultra-expensive “Boiler MACT” rules, another utility nemesis.
EPA administrator Lisa Jackson has made it clear that she isn’t happy about some of these about-faces, and her staff spun the latest dust decision in remarkably graceless fashion, accusing critics of spreading “myths” and claiming the agency never had any intention of going after farm dust in the first place. Following the same line, Kate Sheppard at Mother Jones has now twice dismissed the issue as “the tea party-right’s favorite EPA conspiracy theory. Sadly, it’s not true.”
But the farmers and ranchers—and the many lawmakers who stepped up to their defense—weren’t imagining things, as this letter last July from 21 Senators (including a couple of Democrats), or this contemporaneous Reuters coverage, makes clear. Had the standard been lower, various metropolitan areas would have been knocked out of compliance, and although it’s conceivable states could have found a variety of ways to order curbs to dust-raising economic activity, farms and ranches are just too big a target to have been spared. And the issue caused direct political blowback to President Obama, who was irritably dismissive of a farmer’s concerns when asked about it at a “Town Hall” in the rural Midwest.
This, then, seems to be the new Obama administration compromise position on the EPA: they’ll hold off for now on saddling the economy with at least some potentially ruinous regulations—but they’ll make sure you know they’re not happy about having to take that stand.
In Global Warming Case, Supreme Court Reaches Correct Result But Leaves Room for Mischievous Litigation
In the important global warming case decided today, American Electric Power Co. v. Connecticut, the Supreme Court unanimously reached the correct result but one that still leaves room for plenty of mischievous litigation. While it’s clearly true that, as the Court said, the Clean Air Act and the EPA exist to deal with the claims the plaintiffs made here—that the defendants’ carbon dioxide emissions are pollutants that cause global warming—the Court left open the possibility of claims on state common-law grounds such as nuisance. And it unfortunately said nothing about whether any such disputes, whether challenging EPA action or suing under state law, are properly “cases and controversies” ripe for judicial resolution.
The judiciary was not meant to be the sole method for resolving grievances with the government, even if everything looks like a nail to lawyers who only have a hammer. This case is the perfect example of a “political question” best left to the political branches: The science and politics of global warming is so complex and nuanced that there simply isn’t a judicial role to be had.
As Cato’s amicus brief argued, the chain of causation between the defendants’ carbon emissions and the alleged harm caused by global warming is so attenuated that it resembles the famed “butterfly effect.” Just as butterflies should not be sued for causing tsunamis, a handful of utility companies in the Northeastern United States should not be sued for the complex (and disputed) harms of global warming. Even if plaintiffs (here or in a future case) can demonstrate causation, it is unconstitutional for courts to make nuanced policy decisions that should be left to the legislature. Just as it’s improper for a legislature to pass a statute punishing a particular person (bill of attainder), it’s beyond courts’ constitutional authority to determine wide-ranging policies in which numerous considerations must be weighed in anything but an adversarial litigation process.
If a court were to adjudicate claims like those at issue in American Electric Power and issue an order dictating emissions standards, two things will happen: 1) the elected branches will be encouraged to abdicate to the courts their responsibilities for addressing complex and controversial policy issues, and 2) an already difficult situation would become nearly intractable as regulatory agencies and legislative actors butt heads with court orders issued across the country in quickly multiplying global warming cases. These inevitable outcomes are precisely why the standing and political question doctrines exist.
Dissatisfaction with the decisions and pace of government does not give someone the right to sue over anything. Or, as Chief Justice Marshall once said, “If the judicial power extended to every question under the laws of the United States … [t]he division of power [among the branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary.”
A Ban on Farm-Filming?
Animal-welfare activists have scored much publicity success by releasing hidden-camera videos that they say document the mistreatment of animals at farms and slaughterhouses. Now, at the behest of farm interests, lawmakers in Iowa, Florida, and Minnesota are proposing laws seeking to criminalize the making and even possession of such videos. According to the New York Times, the Iowa bill, which has passed the lower house of the legislature in Des Moines:
would make it a crime to produce, distribute or possess photos and video taken without permission at an agricultural facility. It would also criminalize lying on an application to work at an agriculture facility “with an intent to commit an act not authorized by the owner.”
From a libertarian perspective, there’s so much wrong with these bills that it’s hard to know where to begin. Maybe with the bills’ ridiculous overbreadth and over-punitiveness—the Florida proposal, for example, apparently would ban even roadside photography of farms, and send offenders to prison for as much as thirty years. In proposing a (very likely unconstitutional) ban on even the possession of improperly produced videos, the Iowa bill, ironically or otherwise, echoes the tireless legislative efforts of some animal rights activists over the years to ban even possession of videos depicting dogfights and other instances of animal cruelty, for example.
The fact is that we already criminalize too much photo-taking. Depending on where you live, it may be unlawful to snap photos in a busy transit hub, or videotape the police officer who’s conducting an arrest; New Jersey is now considering a law that could ban much picture-taking of children in public places. To be sure, farmers and food processors also have rights deserving of respect, but the core of those rights should be the right to post a notice of “No photography on premises” and then seek civil (as distinct from criminal, in the absence of forcible entry) remedies against visitors or employees who ignore it.
Relatedly, the New York Times invited me to join a “Room for Debate” discussion today on farm animal welfare and my contribution is here. My suggestions that the federal government leave the issue to the states, and that the development of a market in more expensive but humanely raised meat is to be welcomed, brought down predictable outrage from some readers, whose comments included, “The ‘free-market’ litany is a lying crock” and, “It would be a very good thing if meat became unaffordable to most ordinary people.”
Not so relatedly, I am happy to report that the Environmental Protection Agency has finally backed off its position that dairy farmers must build elaborate containment structures to guard against milk spills on the theory that—milk containing butterfat and all—those mishaps should be legally construed as “oil spills.” I had criticized the agency’s interpretation here and here.
When the Government Lobbies Itself
“National Public Radio (NPR) is paying the lobbying firm Bracy, Tucker, Brown & Valanzano to defend its taxpayer funding stream in Congress, according to lobbying disclosure forms filed with the Secretary of the Senate,” reports Matthew Boyle at the Daily Caller. Once again, a government-funded entity is using its taxpayer funds to lobby to get more money from the taxpayers.
When the bailouts and takeovers started in 2008-9, I noted that there was lots of outrage in the blogosphere over revelations that some of the biggest recipients of the federal government’s $700 billion TARP bailout had been spending money on lobbyists. And I wrote:
It’s bad enough to have our tax money taken and given to banks whose mistakes should have caused them to fail. It’s adding insult to injury when they use our money — or some “other” money; money is fungible — to lobby our representatives in Congress, perhaps for even more money.
Get taxpayers’ money, hire lobbyists, get more taxpayers’ money. Nice work if you can get it.
At the same time, Dan Mitchell wrote that companies that received government money and then lobbied for more “deserve a reserved seat in a very hot place.” Taxpayer-funded lobbying is a scandal, but it’s a scandal that has been going on for decades:
As far back as 1985, Cato published a book, Destroying Democracy: How Government Funds Partisan Politics, that exposed how billions of taxpayers’ dollars were used to subsidize organizations with a political agenda, mostly groups that lobbied and organized for bigger government and more spending. The book led off with this quotation from Thomas Jefferson’s Virginia Statute of Religious Liberty: “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.”
The book noted that the National Council of Senior Citizens had received more than $150 million in taxpayers’ money in four years. A more recent report estimated that AARP had received over a billion dollars in taxpayer funding. Both groups, of course, lobby incessantly for more spending on Social Security and Medicare. The Heritage Foundation reported in 1995, “Each year, the American taxpayers provide more than $39 billion in grants to organizations which may use the money to advance their political agendas.”
In 1999 Peter Samuel and Randal O’Toole found that EPA was a major funder of groups lobbying for “smart growth.” So these groups were pushing a policy agenda on the federal government, but the government itself was paying the groups to lobby it.
Taxpayers shouldn’t be forced to pay for the very lobbying that seeks to suck more dollars out of the taxpayers. But then, taxpayers shouldn’t be forced to subsidize banks, car companies, senior citizen groups, environmentalist lobbies, labor unions, or other private organizations in the first place.
Courts Must Review Agency Actions
There is a growing trend among federal agencies and courts to incrementally expand the government’s enforcement power by adopting statutory interpretations that go beyond their plain meaning and intent. National Corn Growers v. EPA exemplifies such government overreach.
Under the Federal Food, Drug, and Cosmetic Act, the Environmental Protection Agency establishes limits, or “tolerances,” for pesticide residues on food. If a pesticide residue exceeds an established tolerance it is deemed “unsafe” and the product is removed from interstate commerce—effectively banned from use. The EPA must modify or revoke a tolerance it deems unsafe through a “notice and comment” process. Both the FFDCA and its implementing regulations require the EPA to hold a public evidentiary hearing if any objections raise a “material issue of fact.”
In National Corn Growers, the pesticide carbofuran was registered for use in 1969 by the EPA and has been safely used for pest control for a variety of crops for more than 40 years. Recently, however, the EPA overlooked “material issues of fact” raised by the National Corn Growers and revoked all tolerances for carbofuran without a public hearing. In a decision that gives sole discretion to the EPA to determine the fate of hundreds of thousands of products already in the market, the D.C. Circuit held that courts must defer to the agency. The court declared that differences in scientific studies are insufficient for judicial review, essentially writing “material issue of fact” out of the Act.
Cato joined the Pacific Legal Foundation in filing a brief arguing that Supreme Court review is warranted because the D.C. Circuit undermined the legal requirement for a public hearing under the FFDCA. Moreover, because this case sets a precedent for other regulated products and allows government agencies to unlawfully deprive citizens of their property without adequate access to court review, we argue that the Supreme Court should take this case to: (1) establish the proper standard for review under the FFDCA for a public hearing; (2) curtail abuse of the administrative process; and (3) establish that complete deference is not compatible with a summary-judgment-type proceeding.
The right not to be deprived of one’s property without fair process is a bedrock principle of American jurisprudence. The Court should reinforce this principle and ensure that statutory safeguards intended to protect this right are not ignored.
Thanks to Cato legal associate Caitlyn McCarthy for her help with the brief and with this summary.
EPA on Guard against Spills
Well, at least of the dairy kind:
New Environmental Protection Agency regulations treat spilled milk like oil, requiring farmers to build extra storage tanks and form emergency spill plans….
The EPA regulations state that “milk typically contains a percentage of animal fat, which is a non-petroleum oil. Thus, containers storing milk are subject to the Oil Spill Prevention, Control and Countermeasure Program rule when they meet the applicability criteria.”
Peter Daining of the Holland Sentinel (Holland, MI) has a report, including predictions that smaller dairy producers could be driven out of business by the cost of the containment rules.
A Few Notes on Climate Change
As the Copenhagen Climate Conference is taking place, it is appropriate to clarify once again what is more or less accurately known about the climate of our planet and about climate change.
Obviously, a brief post can not substitute for detailed studies of professionals in a variety of scientific disciplines – climatology, atmospheric physics, chemistry, geology, astronomy, and economics. However, a short post can summarize basic theses on the main trends in climate evolution, on its forecasts, and on its actual and projected effects.
1. The Earth’s climate is constantly changing. The climate was changing in the past, is changing now and, obviously, will be changing in the future – as long as our planet exists.
2. Climatic changes are largely cyclical in nature. There are various time horizons of climatic cycles – from the annual cycle known to everyone to cycles of 65-70 years, of 1,300 years, or of 100,000 years (the so called Milankovitch cycles).
3. There is no fundamental disagreement among scientists, public figures and governments about the fact that the climate is changing. There is a broad consensus that climate changes occur constantly. The myth, created by climate alarmists, that their opponents deny climate change is sheer propaganda.
4. Current debate among climatologists, economists and public figures is not about the fact of climate change, but about other issues. In particular, disagreements exist on:
- Comparative levels of modern day temperatures (relative to the historically observed),
- The direction of climate change depending on the length of record,
- The extent of climate change,
- The rate of climate change,
- Causes of climate change,
- Forecasts of climate change,
- Consequences of climate change,
- The optimal strategy for human beings to respond to climate change.
5. Unbiased answers to many of these issues are critically dependent on a chosen time horizon – whether it is 10 years, or 30 years, or 70 years, or 1000 years, or 10,000 years, or hundreds of thousands or millions of years. Depending on the time horizon, the answers to many of these questions may be different, even opposite.
Have the Greens Failed?
Today’s question at “Politico Arena“:
“Have the greens failed?”
My response:
If the greens have failed, it’s not for lack of trying. For years now, in everything from pre-school programs to “educational” ads aimed at adults, they’ve been “greenwashing” our brains. In September the Wall Street Journal reported that the EPA was focusing on children: ”Partnering with the Parent Teacher Organization, the agency earlier this month launched a cross-country tour of 6,000 schools to teach students about climate change and energy efficiency.”
Yet for all that effort, the public isn’t buying. As Politico notes this morning: ”The Pew Research Center found that by last January, global warming ’ranked at the bottom of the public’s list of policy priorities for the president and Congress this year.’” And “Independent voters and Republicans ranked it last on a list of 20 priorities, while Democrats ranked it 16th.” Meanwhile, “other polling suggests Americans are growing more skeptical of the science behind climate change, with those who blame human activity for global warming – 36 percent – falling 11 percentage points this year, according to Pew.” And that was before “Climategate” came to light.
At bottom, the greens face three basic problems. First, by no means is the science of global warming “settled” — if anything, the fraud Climategate surfaced has settled that question. Second, even if global warming were a settled science, the contribution of human activity is anything but certain. And finally, most important, even if the answers to those two questions were clear, the costs — or benefits — of global warming are unknown, but the costs of the proposals promoted by the greens are astronomical.
So how do they respond to all of this? Politico cites Greenpeace executive director Phil Radford: “‘Obama’s problem is not his position on the climate issue but, rather, his will,’ says Radford. ’The question is how much the president will lead.’ Americans have ‘overlearned’ the lessons of Kyoto, where President Bill Clinton agreed to a treaty that he never submitted for ratification because it faced near-unanimous rejection in the Senate, Radford said. ’They’re using that as a reason to hide behind Congress instead of to lead Congress.’”
There you have it. It’s all a matter of will — indeed, of belief. The president needs simply to will this through, the people (and Congress) be damned. We, the anointed, know what’s right, what needs to be done. Is it any wonder that the greens are failing, at least where the people can still be heard?
Using ‘Cash For Clunkers’ Money to Buy a Muscle Car
ABC News reports that the “Cash for Clunkers” scheme, a government program that offers a rebate to people who trade in vehicles with low gas mileage for more fuel efficient cars, is gaining popularity:
The program is off to a fast start. In less than a week, 8,000 cars have been traded in for new ones — deals that might not have happened if Washington were not offering people $3,500 to $4,500 to get their aging gas guzzlers off the road.
In June, Cato senior fellow Alan Reynolds explained how you can use that money to buy the muscle car or truck you always wanted:
Consider how easy it would be to game this giveaway program by using that $4,500 voucher to buy a big SUV or V-8 muscle car.
First of all, with Chrysler and GM dealerships folding, it should be easy to buy a mediocre Chevy Cobalt or Dodge Caliber for about $10,000 more than the voucher.
What you do next is sell that boring econobox, even if you end up with $1,000 less than you paid — that still leaves you with $3,500 of free money, courtesy of taxpayers.
As this process unfolds, the flood of resold small cars will make it even harder for GM, Chrysler and Ford dealers to get a decent price for small cars, because of added competition from new cars being resold as used.
That’s their problem, not yours.
So, take the $9,000 net from reselling the crummy little car plus the $4,500 from Uncle Sam. Then use that $13,500 to make a big down payment on a used Cadillac Escalade, Toyota Tundra pickup or Corvette.
File this under “unintended consequences” (my own file is running out of space).
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