Topic: Regulatory Studies

The Constitutional Dimension of Your Morning Commute

Over the last few years, D.C.-area drivers may have noticed the continual increases in toll fares on the Dulles Toll Road, the highway going through the Northern Virginia suburbs past Dulles Airport.  Indeed, since 2005, the toll for the typical round-trip commuter has more than quadrupled from $1.50 to $7.00, with more increases coming. These extra toll dollars haven’t been going for upkeep or expansion of the highway, however, but instead have been funding the over-budget and under-performing construction of the Metro’s Silver Line extension.

While originally slated to fund only 25% of that cost, commuters are now looking at paying more than half of the $5.6 billion (and counting) total cost, with years of construction still to come. The entity in charge of the construction project (and of gouging the toll road’s commuters) is the Metropolitan Washington Airports Authority, a public body established to govern Dulles and Reagan National airports at the behest of the Department of Transportation. But who’s actually in charge of the MWAA, and to whom can beleaguered commuters turn for relief? Although created by an interstate compact between D.C. and Virginia, the MWAA was granted all of its authority by an act of Congress, and the highways and airports that it oversees are federal property.

In many ways, the MWAA acts like a federal agency—in nearly all ways, in fact, except one important aspect: oversight. If federal assets and lawmaking power are being delegated to the MWAA, then there must be a means for the executive branch to “take care that the laws be faithfully executed.” The MWAA, however, is governed by a board of individuals whom the president has no meaningful ability to appoint, oversee, or control. This means that the MWAA has no political accountability for its decisions.

Having no other meaningful recourse, a group of Dulles Toll Road users sued the MWAA, arguing that its decrees violate the separation of powers. (Full disclosure: my wife and I just bought a house in Falls Church and will likely be using the road every now and again, though not on my commute to Cato.) The federal district and appeals courts—two of them, in an unusual development whereby the Federal Circuit transferred the case to the Fourth Circuit—decided that the MWAA’s nature as a state-created entity required the case to be dismissed. Moreover—get this—because the MWAA has no meaningful executive-branch control, there is no separation-of-powers issue. (This despite the federal government’s appearance as an amicus to argue that the MWAA exercises federal power and is subject to separation-of-powers scrutiny.)

Undeterred, the plaintiffs have petitioned the Supreme Court to hear their case. Cato has joined the American Highway Users Alliance and the Recreation Vehicle Industry Association on a brief supporting their petition. We argue that the Court should take the case because (1) there is a critical violation of the separation of powers, (2) there are already manifest harms resulting precisely from that violation, and (3) the federal government sees and treats the MWAA as a federal agency—but one without any meaningful accountability whatsoever.

It isn’t every day that a separation-of-powers case is as squarely presented as it is here, where commuters are being railroaded, so to speak, by a runaway agency whose conductor is absent. The executive branch has to take the blame not only for the MWAA’s policies, but its corruption, incompetence, and mismanagement.

The Supreme Court will decide whether to take Corr v. Metro. Washington Airports Authority later this fall.

San Francisco Taxi Trips Plunge Amid Rise of Rideshare Companies

According to Kate Toran, the San Francisco transport authority’s Taxis and Accessible Services interim director, companies such as Uber and Lyft, which provide ridesharing services, “have dramatically changed the for-hire transportation industry in San Francisco.”

A few days ago, the San Francisco Examiner reported on a presentation Toran gave to the San Francisco Municipal Transportation Agency (SFMTA) board of directors. The presentation included the slide below:

 

Uber and Lyft are both headquartered in San Francisco and are classified as Transportation Network Companies (TNCs), a designation created by California’s Public Utilities Commission last year.

State Inspectors Get Run Of California Worksites—At Business Groups’ Behest

That workman from Craigslist who dropped by to install a set of office cabinets for you “off the books” is now more likely to be headed to jail, no matter how happy you are with the quality of his work, thanks to the California legislature:

Gov. Jerry Brown has signed S.B. 315, described by its sponsor, Sen. Ted Lieu (D-Beverly Hills), as a measure “to help curb California’s underground economy.” The measure would step up penalties and enforcement against persons who advertise for, or perform, repair and construction work with a value of $500 or more, counting parts and material as well as labor. … First offenses are subject to six months in jail and a $5,000 fine, and subsequent offenses are treated yet more harshly.

There’s more. The bill, according to its legislative summary, “would additionally require that the enforcement division, when participating in the activities of the Joint Enforcement Strike Force on the Underground Economy, be granted free access to all places of labor,” at least in business locations. (Yes, “all”; you only thought your property was private.) 

A special touch: the customer who ordered the work will now be legally classed as a “victim of crime” entitled to restitution and other benefits, even if the work was done exactly as ordered, and even if (the law is explicit) the customer was fully aware the job was unlicensed. 

How could the California legislature have unanimously (as it did) passed a measure curtailing property rights by giving more state inspectors access to places of labor against owners’ will? Simple: it was framed as a pro-business measure. Among its backers were the sponsoring Contractors State License Board and such groups as the Air Conditioning and Refrigeration Contractors Association, the electrical contractors, the landscape contractors, the plumbing and heating contractors, and so forth.   

The costs of occupational licensure are many. Not least is that it gives established businesses a stake in making government more powerful and invasive.  

P.S.: Possibly unrelated, or possibly not: California issued massive fines that closed down a small winery whose owners were allowing volunteers to do some work, in violation of state law; a state spokesman said permitting volunteer labor “isn’t fair” to competing wineries with all-professional staff. 

NYT Reverses Course on German Renewables

This week the New York Times featured an article lauding Germany’s embrace of renewable energy in recent years. This came just under a year after it published a separate article questioning the costs of subsidized wind power.  The article last year noted that “Industrial users still pay substantially more for electricity here than do their counterparts in Britain or France, and almost three times as much as those in the United States, according to a study by the German industrial giant Siemens. The Cologne Institute for Economic Research said there had been a marked decline in the willingness of industrial companies to invest in Germany since 2000.”  

Regulation has published two articles addressing the issue of renewable energy subsidies in recent years.

In the first, Jonathan Lesser examines the costs of the Cape Cod wind farms in Massachusetts.  Cape Wind prices will be around 21 cents per kWh when it starts production and 35 cents at the end of the contract in 2027.  In contrast the market supply is currently around 11 cents per kWh and projected to be 15 cents from 2020 through 2027. 

In the second article, Lesser uses data on actual wind generation to demonstrate the perverse economic consequences of the inverse relationship between the availability of wind power (at night in the winter) and the demand for electricity (during the day in the summer).

From January 2009 to August 2012 in three of the areas of the country that account for more than half of the installed wind generation capacity in the U.S.: Pennsylvania-New Jersey-Maryland, the upper Midwest, and Texas, the median wind unit operated only between 26 and 31 percent of the hours in a year and only between 2 and 16 percent of the peak hours in the 10 highest demand days of the year. 

Even though renewable power is least available when electricity is in greatest demand, renewable energy subsidies create taxpayer-subsidized competition for existing power generators during other lower-demand times.  This reduces the returns of existing generators.  The lower returns cause conventional supply to decline and eventually consumer prices increase particularly at peak times because so little wind generation is produced during peak hours.

German Uber Ban Lifted

Today, a court in Frankfurt lifted the temporary ban on Uber’s ride-sharing service imposed at the beginning of this month. Judges were reportedly sympathetic to the claim brought by Taxi Deutschland, an association of taxi dispatchers. However, Judge Frowin Kurth ruled that Taxi Deutschland had waited too long to file for an injunction. A spokesman for the court said that the case must have been filed within two months of Uber’s ride-sharing service launching in Germany.

Taxi Deutschland claimed that Uber’s ride-sharing service was in violation of legislation prohibiting drivers without a commercial license charging passengers more than the operating cost of a ride. 

Although the temporary ban has been lifted the court has not made a judgment on whether Uber’s ride-sharing service is legal in Germany.

Uber has been facing opposition across Europe. In June, London cabbies protested how Uber was being regulated by the city’s transportation agency. In March, Milan taxi drivers held a strike protesting Uber. According to Reuters, Milan’s taxi unions believed Uber was operating illegally:

Milan’s taxi unions say that because the app allows drivers to be summoned while in their car, it violates a 1992 law which describes hired drivers as a service ordered from the garage where their business is based, as distinct from taxis, which can pick up passengers on the move.

 In Germany and the U.K. the Uber protests reportedly resulted in an explosion in signups.

Share Better Coalition Takes Aim at Airbnb

Airbnb, which allows for homeowners to temporarily rent some or all of their property, is the target of “Share Better,” a New York City-based campaign group launched last Friday which claims that the company worsens the affordable housing crisis, allows for tenants to violate lease agreements, and poses a safety risk to property owners and guests.

Share Better is a coalition of predictable groups: New York state and NYC elected officials, activists, and hotel industry representatives.

The Share Better campaign is a notable example of established market participants (hotels) working to stifle competition. Airbnb has proven popular in NYC, and many New Yorkers believe that the type of short-term renting facilitated by Airbnb should be permitted. A Quinnipiac poll from earlier this month shows that only 36 percent of NYC voters believe that residents should not be “permitted to rent rooms in their homes for a few days at a time to strangers, similar to a hotel.”

Given Airbnb’s popularity some in the NYC hotel industry are understandably concerned. However, some of the claims made by the group are unfounded. 

Is Airbnb contributing to NYC’s affordable housing crisis? It’s hard to see how given the number of Airbnb rentals and the number of households in NYC. Airbnb claims that there are approximately 25,000 listings in NYC. In a city of roughly 3 million households it’s hard to see how Airbnb could be significantly contributing to a lack of affordable housing in NYC.

If New York and NYC elected officials and activists are concerned about affordable housing in NYC they should turn their attention to rent controls, which economists almost universally agree are bad policy. As Swedish economist Assar Lindbeck noted, “In many cases rent control appears to be the most efficient technique presently known to destroy a city—except for bombing.”

Read Cato’s Policy Analysis “How Rent Control Drives Out Affordable Housing” by William Tucker here.

The Share Better campaign released a video highlighting negative reviews of Airbnb rentals imposed over footage of grim-looking properties. No one who supports the sharing economy claims that every Airbnb experience will be good, just as no one will claim that every hotel visit will enjoyed by every guest. However, given the rise of the Internet it is easy for those interested in staying at a hotel to look up reviews of hotels made by previous guests. Similarly, Airbnb hosts and guests review each other, making it unlikely that a host offering dirty or unsafe accommodation will be able to use Airbnb’s services for long. 

Libertarians and Share Better can agree that, if an apartment tenant has signed a lease with a landlord that forbids him from temporarily renting his apartment, he should not be hosting Airbnb guests.

The FDA vs. Fine Cheese: A Wedge Too Far

[cross-posted, slightly adapted, from Overlawyered]

It’s happening just as warnedJanet Fletcher at the Los Angeles Times reports:

…cheese counters could soon be a lot less aromatic, with several popular cheeses falling victim to a more zealous U.S. Food and Drug Administration. Roquefort — France’s top-selling blue — is in the agency’s cross hairs along with raw-milk versions of Morbier, St. Nectaire and Tomme de Savoie. …

Of course, French creameries haven’t changed their recipes for any of these classic cheeses. But their wheels are flunking now because the FDA has drastically cut allowances for a typically harmless bacterium by a factor of 10.

The new rules have resulted in holds even on super-safe Parmigiano Reggiano, and the risk of losing a costly shipment of a perishable commodity is likely to be enough to drive many European producers out of the market for export to America entirely. Highly praised artisanal cheese makers in the United States are facing shutdown as well.

Earlier on the FDA and cheese regulation in this space here (predictions before the Food Safety Modernization Act of 2010, or FSMA, passed) and at Overlawyered hereherehere, etc.

They told us this administration was going to be run by wine-and-cheese liberals. Now where are they when they could do us some good?