Topic: Regulatory Studies

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?

Auto Dealers Attempt to Ban Tesla from Georgia

Rather than selling cars through independent dealers, the upstart electric car maker Tesla sells its automobiles directly to consumers. However, many states prohibit direct auto sales, thanks to laws from the mid-20th century that ostensibly were intended to protect dealers from automakers’ market power. The need for that protection was questionable when the laws and regulations were adopted and are even more dubious in today’s highly competitive auto market. But they are especially inappropriate when applied to a small new automaker that solely wants to engage in direct sales.

This week, the Georgia Automobile Dealers Association filed a petition with the state’s Department of Revenue in an attempt to bar further sales of Tesla sedans. Such battles have erupted in numerous states, from Missouri to New Jersey. In the latest issue of Regulation, University of Michigan Law professor Daniel Crane argues that dealer distribution restrictions are based on faulty ideas of consumer protection. Traditional dealers claim that competition among a brand’s dealers prevents the manufacturer from “gouging” consumers and extracting monopoly profits. Crane argues that standard economic theory demonstrates that these claims are nonsense. Firms with market power will be able to claim monopoly profits, regardless of whether middlemen, such as dealerships, are involved.

Moreover, by restricting competition among business models for auto sales, laws such as those in Georgia stifle competition among automakers. When companies such as Tesla seek to lower costs through innovative business designs, they face costly regulatory hurdles and legal challenges such as the sales ban in Georgia. These laws protect existing dealers and hurt consumers.

Supreme Court Must Resolve Obamacare Chaos

When the Affordable Care Act was being debated in Congress, former House Speaker Nancy Pelosi infamously insisted that “we have to pass the bill to find out what’s in it.”  It turns out, however, that the Obama administration—which has been making it up as it goes along with regard to ACA enforcement—doesn’t care “what’s in it.”

The IRS in particular has been implementing Obamacare as it thinks the law should be, not as it is. The ACA encourages states to establish health insurance exchanges by offering people who get their health coverage “through an Exchange established by the State” a tax credit—a subsidy to help them pay their premium. In the event a state declines to establish an exchange, Section 1321 further empowers the Department of Health and Human Services to establish federal exchange in states that decline to establish their own exchanges (without providing for the premium subsidy).

When, contrary to the expectations of the law’s achitects, 34 states declined to establish an exchange—two more have since failed—the IRS decided that those getting their insurance on federally established exchanges should qualify for tax credits regardless of the statutory text. In conflict with the U.S. Court of Appeals for the D.C. Circuit in a similar case called Halbig v. Burwell, the Fourth Circuit in King v. Burwell found the legal text to be ambiguous and thus deferred to the IRS interpretation.

The so-called Chevron doctrine counsels that statutory text controls when Congress has spoken clearly on an issue. But where Congress is ambiguous or silent, the agency can fill the regulatory gap with its own rules and policies. The problem here is that the ACA’s text was not ambiguous and there is no evidence that Congress intended to delegate to the IRS the power to determine whether billions of taxpayer dollars should annually be dispersed to those purchasing health care coverage on federal exchanges. That the Fourth Circuit has bent over backwards to accommodate the administration’s latest Obamacare “fix shows that it, too, is not so concerned with “what’s in” the law. 

To that end, Cato joined four other organizations to support the plaintiffs’ petition for review by the Supreme Court. Our brief argues that the Court should hear the case because it offers the opportunity to reverse potentially grave harm to the separation of powers, to correct a misapplication of the Chevron doctrine, and to restore the idea that drastically altering the operation of a major legislative act belongs to the political process and not in a back rooms of an administrative agency. Just because those who voted for the ACA didn’t care what it said doesn’t mean that the executive and judicial branches should also turn a blind eye.  

To see the legal machinations now at play in these cases regarding the Obamacare-IRS-tax-credit, see my recent op-ed in the National Law Journal. Since that was published this past Monday, the government received a 30-day extension in which it has to file its response to the King cert petition. That means that the Supreme Court will be considering at some point next month whether to take the case.

For Cato’s previous briefs in Halbig and King, respectively, see here and here.

Uber Signups Soar Following German Ban

Uber has experienced an explosion in signups in Germany after a Frankfurt court handed down a temporary injunction banning the transport technology company. The countrywide ban follows a suit brought against Uber by Taxi Deutschland, an association of taxi dispatchers. Taxi Deutschland claimed that Uber did not have the necessary permits to operate. Under German law, drivers without a commercial licenses can pick up passengers as long as they do not charge more than the operating costs for the ride.

The Telegraph notes that Uber says it will continue to operate in Germany despite Taxi Deutschland claiming it will seek a fine of as much as €250,000 every time Uber provides a service without a license.

Since the injunction was issued, Uber claims that it has experienced a larger than 500 percent increase in signups compared to the same period last week in some parts of Germany. As City A.M.’s Guy Bentley notes, the Uber app has been downloaded in parts of Germany where Uber drivers do not operate:

The taxi app company doubled signups in all five German cities where it operates, with demand in both Hamburg and Düsseldorf rising over 500 per cent. Even people who don’t live in cities where Uber operates are downloading the app, perhaps in an act of capitalist solidarity. Uber now ranks in the top ten most downloaded apps in Germany.

According to Uber, the increased signups on September 2 in the five German cities where it operates compared to the same period last week are as follows:

- Uber Hamburg up 590 percent

- Uber Dusseldorf up 518 percent

- Uber Munich up 329 percent

- Uber Berlin up 270 percent

- Uber Frankfurt up 228 percent

I noted in July that, according to Uber’s U.K. general manager, Uber enjoyed an 850 percent increase in British signups in one day following a London black cab protest against how Uber was being treated by London’s transportation agency.

Taxi companies are understandably frustrated by the rise of Uber and will continue to seek legal means to stifle the company’s growth. However, events in Germany and the U.K. have shown that attacks on Uber can provide the company with welcome exposure and new customers.