Topic: Energy and Environment

New Light on Paternalism

Yesterday Mario Rizzo pointed out a couple of new studies on the unexpected results of paternalist policies designed to “nudge” Americans into making what their betters consider smart decisions. In today’s Wall Street Journal, Energy Secretary Steven Chu sums up the paternalist view very concisely. Opposing a House bill to repeal the 2007 federal law that effectively outlaws incandescent light bulbs, Chu says:

We are taking away a choice that continues to let people waste their own money.

Exactly. The government wants to take away our choice. It wants to take away our right to make our own decision. It doesn’t trust us to make our own choices. And why should it? Secretary Chu won the Nobel prize in physics. He’s obviously smarter than we are.

Sure, some people just don’t like fluorescent light. Some people don’t like the way the new bulbs come on slowly. Some people don’t like the curlicue look. Some find that they don’t in fact last longer than incandescent bulbs. Some are skeptical about promises of long-term savings, or simply prefer to spend less now.

But none of that matters to Secretary Chu and other paternalists. They know that these bulbs are best for us, and so they “are taking away a choice” that they don’t think people should make. That’s the difference between the libertarian and paternalist views in a nutshell.

EPA Gives Millions to Enviro Groups That Sue it

It’s all a happy circle of funding, as John Merline reports at Investor’s Business Daily: the Environmental Protection Agency gives millions in grants to green organizations that perennially sue it demanding that it regulate more things. When the EPA settles or loses those suits, it then awards the groups millions more in attorneys’ fees under the federal Equal Access to Justice Act and other “one-way” attorney’s fee provisions (called “one-way” because they allow winning plaintiffs to collect fees from defendants, but not vice versa).

“The EPA isn’t harmed by these suits,” said Jeffrey Holmstead, who was an EPA official during the Bush administration. “Often the suits involve things the EPA wants to do anyway. By inviting a lawsuit and then signing a consent decree, the agency gets legal cover from political heat.”

Holmstead called this kind of litigation “sweetheart suits.”

As blogger Coyote puts it, “Our rulers are pretty good at finding tricky ways to expand their power.”

I go into much more detail on collusive public-sector litigation in chapter 8 of my new book Schools for Misrule. Other government agencies, much like the EPA, use settlements of pressure-group lawsuits as a way to go along with desired expansions of power; corrections and foster-care systems commit to step up program offerings and (no! anything but that!) seek higher funding to accomplish their missions; union-allied public-sector managers give away the store on employee benefits disputes, and so forth (scroll to “Consent of the Governors”). From New York to Alabama, state education departments have covertly or even openly assisted lawsuits against themselves intended to force spending expansion. And once sweetheart negotiations result in an adverse consent decree, with little or no formal input from taxpayers, parents, or other affected constituencies, the locked-in big-government policies can be nearly impossible to unlock later on, should voters’ moods change.

With a few exceptions, as with Prof. Ross Sandler and David Schoenbrod’s superb critique Democracy by Decree, these methods of agency governance are virtually uncontroversial and indeed highly popular in legal academia — and no wonder, since they transfer much power over public policy to a corps of “public-interest” litigation professionals who tend to be products of the finer law schools. But others, particularly Western land activists and Republicans in Congress, are skeptical. Rep. Cynthia Lummis (R-Wyo.) points out that since a rules revamp in 1995 the federal government no longer even tracks EAJA fee payouts in any organized manner, which makes it harder to catch double payments as well as suggestive patterns in which (critics have charged) certain environmental groups have filed hundreds of suits, assembly-line style, and cashed them in for fees. Lummis and home-state colleague Sen. John Barrasso (R-Wyo.) have introduced a bill called the Government Litigation Savings Act that would, among other provisions, reinstitute data collection regarding EAJA outlays, limit the size of awards to $200,000 per case and the number of annual awards to a given group to three, and cap hourly attorneys’ fee awards at an inflation-indexed $175/hour. (Sen. Orrin Hatch, another co-sponsor, summarizes the provisions here.) Whatever the merits of individual details, the bill furnishes a jumping-off point for a public debate that’s long overdue.

Driverless Nevada

In Gridlock, I argued that the next great improvement in human mobility will come not from rail transit or high-speed rail but driverless cars. Companies such as GM and Volkswagen have invested heavily in research and development of cars that can drive themselves, and I expected that they would soon begin lobbying state legislatures to change laws to allow such driverless cars on the road.

As it turned out, the lobbying was done not by an auto company but by Google, which has tested driverless cars (developed by the same Stanford University engineers who designed Volkswagen’s driverless cars) throughout the state of California. Google decided Nevada would be a good state to start legalizing driverless cars, and last week the Nevada legislature agreed.

By coincidence, Volkswagen has announced that it will soon offer semi-driverless cars for sale. The cars will include a “temporary auto pilot” that can stay within speed limits, steer within lane indicators, pass slow-moving vehicles, and avoid collisions on the highway. The cars will not be able to navigate city streets, but that will come soon.

The introduction of true driverless cars will significantly expand personal mobility because anyone—not just people over 16 who can pass a driver’s test—will be able to use them. Driverless cars will reduce congestion and improve safety. The new mobility will significantly change the way we live. And the cars will render obsolete any and all rail transit and moderate-speed rail lines now being planned or under construction long before taxpayers finish paying the heavy debts incurred to build such lines.

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.”

The Myth of the Senior Transit Rider

According to Transportation for America — which is largely a shill for the transit industry — the nation is about to face a new crisis: a shortage of mobility “options” for retiring baby boomers. According to a report published by the group on June 14, “By 2015, more than 15.5 million Americans 65 and older will live in communities where public transportation service is poor or non-existent.”

The appropriate answer to that, of course, is “So what?” Most seniors don’t ride transit. Census data show that more than 12.5 percent of all Americans are over 65, yet data from the American Public Transportation Association show that only 6.7 percent of transit trips are taken by senior citizens. The average American rides transit less than 34 times a year; the average senior citizen less than 18 times a year.

Putting that into perspective, the 2009 National Household Travel Survey says Americans over 65 take an average of 1,168 trips per year, nearly all by automobile. Transit serves only 1.5 percent of those trips. This survey of the travel habits of more than 300,000 people also found that senior citizens travel an average of 8,250 miles a year by car. Transit carries seniors an average of less than 100 miles a year, or about 1.1 percent of the total of transit and auto travel.

Despite this, Transportation for America joins the American Public Transportation Association in using the supposed needs of senior citizens to justify more transit subsidies. They say additional federal subsidies are needed to give seniors “options.”

But think about it. Baby boomers have driven cars for almost their entire lives. Nearly all of them will keep driving until they are physically or mentally unable to do so. At that point, they are probably not going to be capable of walking the quarter mile to the nearest bus stop or the half mile to the nearest rail stop that Transportation for America defines as “transit accessible.”

Those baby boomers who prefer transit over driving can do what everyone else does who prefers one set of services over another: locate to where the services they prefer are the greatest. In the case of transit riders, that generally means dense central cities.

Instead, Transportation for America wants transit agencies to extend frequent bus or rail service to every remote suburb where there might be a few people over 65 — not because those people want to ride transit, but to simply give them “options.” In order to pay for service extensions to suburbs, many transit agencies have reduced transit service in the central cities where most transit riders are actually located. As a result, since 1985, per-capita transit ridership has plummeted in such major urban areas as Los Angeles, Chicago, and Atlanta.

Congress expects to pass legislation this year that will decide how to spend $40 billion in annual federal gas tax revenues over the next six years. In recent years, 20 percent of those gas taxes have been spent on transit. Transportation for America’s goal is to further increase that share. But after decades of huge transit subsidies, per-capita transit ridership today is no greater than it was in 1970 — mainly because the subsidies have focused on extending transit service to those who don’t need it rather than providing better service to those who do.

Americans will be better off by privatizing transit. Private operators will provide better service to those willing to live in denser, transit-friendly neighborhoods without wasting a lot of money trying to attract a few suburbanites out of their cars.

Curricula with an Agenda? It Ain’t Just Big Coal

Today the Washington Post has a big story on efforts by the coal industry to get public schools to teach positive things about — you guessed it — coal. The impetus for the article is no doubt a recent kerfuffle over education mega-publisher Scholastic sending schools free copies of the industry-funded lesson plan “The United States of Energy.” Many parents and environmentalists were upset over businesses putting stealthy moves on kids, and Scholastic eventually promised to cease publication of the plan.

Loaded curricula designed to coerce specific sympathies from children, however, hardly come just from industry, as the Post story notes. Indeed, as I write in the new Cato book Climate Coup: Global Warming’s Invasion of Our Government and Our Lives, much of the curricular material put out at least on climate change is decidedly alarmist in nature, and is funded by you, the taxpayer. In other words, lots of people are trying to use the schools to push their biases on your kids, which is an especially dangerous thing considering how unsettled, uncertain, and multi-sided so many issues are.

In light of the huge question marks that exist in almost all subjects that schools address, the best education system is the one that is most decentralized, in which ideas can compete rather than having one (very likely flawed) conclusion imposed as orthodoxy. And it would be a system in which no level of government — either district, state, or federal — would decide what view is correct, or what should be taught based on the existence of some supposed consensus, as if “consensus” were synonymous with “absolute truth.” What is truth should not be decided by who has the best lobbyists or most political weight, nor should children be forced to learn what government simply deems to be best.

Of course, there are some people who will decide that they are so correct about something that it would be abusive not to have government force children to learn it. If their conclusion is so compelling and obvious, however, no coercion should be necessary to get people to teach it to their children — it should be overwhelmingly clear. More importantly, if there is controversy, efforts to impose a singular view are likely to fail not just with the children of unbelievers, but for many of the children whose parents share the view. As significant anecdotal evidence over the teaching of human origins has stongly suggested — and new empirical work has substantiated — when public schools are confronted with controversial issues, they tend to avoid them altogether rather than teach any side. In other words, efforts at compulsion don’t just fail, they hurt everyone.

Educational freedom, then, is the only solution to the curricular problem. If you want full power to avoid the imposition of unwanted materials on your children, you must be able to choose schools. And if you want to ensure that your kids get the instruction you think every child should have, everyone else must have that ability, too.

House Republicans Target Amtrak

House Transportation Committee chairman John Mica (R-FL) and Rail Subcommittee Chairman Bill Shuster (R-PA) announced that they will draw up legislation that would kill Amtrak’s desire to develop and operate high-speed rail in the Northeast Corridor:

We plan introduce legislation to separate the Northeast Corridor from Amtrak, transfer it to a separate entity, and begin a competitive bidding process that would allow for a public-private partnership to design, build, operate, maintain, and finance high-speed service. Our plan would do so in a dramatically shorter time, in closer to 10 rather than 30 years, and at a fraction of the $117 billion cost proposed by Amtrak, while creating new jobs.

Randal O’Toole says that “Rail fans feel threatened by the proposal because they know that, if the Northeast Corridor is ever spun off as a private operation, support for Amtrak subsidies in the rest of the nation will dwindle.” Not surprisingly, Amtrak booster Sen. Frank Lautenberg (D-NJ) thinks that “privatizing” the Northeast Corridor is a bad idea:

Let’s not forget: Congress created Amtrak in 1970 because the private railroads could no longer sustain inter-city passenger service on their own,” he said. “When I was building my business, I learned firsthand — if you want to be successful tomorrow, you must begin laying the foundation today. The same principle applies here. If we want to leave our children and grandchildren a better country, we must make smart investments on their behalf — and that means investing in Amtrak.

Dumping more taxpayer dollars into Amtrak will “leave our children and grandchildren” with more debt – not a better country as Lautenberg absurdly claims. And as a Cato essay on Amtrak subsidies explains, it was decades of taxes and burdensome government regulations that sped the demise of private passenger rail:

Decades of taxes and burdensome government regulations sped the demise of private passenger rail. Railway companies pay income taxes and substantial property taxes, costs that are not borne by government-owned highways. And during World War II, the federal government imposed a special 15 percent excise tax on train tickets, which was not repealed until 1962.

The railroads were rapidly losing customers in the mid-20th century, but government regulators created hurdles to letting them shed services as quickly as demand was falling. Most state governments imposed regulatory restrictions on the discontinuance of train routes. And beginning in 1958, Congress handed the ICC nationwide power to restrict the discontinuance of train routes. Attempts by the railroads to eliminate unprofitable passenger routes were met with political resistance in Congress.

The ICC’s micromanagement of the railroads was damaging. It took the ICC a decade to approve the merger of the struggling Pennsylvania and New York Central railroads into the ill-fated Penn Central. By the 1960s, the railroads’ crucial freight operations were losing ground to trucks and needed to adjust their shipping rates in order to remain competitive. However, the ICC insisted on maintaining a suffocating regulatory rate structure, which reduced the ability of the railroads to adapt to market conditions.

The railroads were also burdened with unionized workforces, which raised labor costs and reduced the management flexibility of companies to respond to the rapidly changing marketplace. For example, even though the job of stoking the old steam engines had been eliminated, railroad unions fought for 35 years to keep firemen in diesel locomotives.

After a number of major railroads, including Penn Central, went bankrupt in the 1960s, Congress and President Richard Nixon stepped in to take unprofitable passenger rail off the hands of the struggling railroads by creating a new federal rail corporation, Amtrak. Pressure from passenger rail advocacy groups and labor unions also led to Amtrak’s creation.

I’m not ready to hop on board Mica and Shuster’s plans for a federal “public-private partnership,” especially since they can only say that their eventual plan will “reduce” and “potentially eliminate” the need for federal subsidies. I’d prefer true privatization and a “bottom-up” approach to transportation. Regardless, halting Amtrak’s high-speed rail dreams would be a step in the right direction.