October 18, 2011 3:40PM

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.

June 20, 2011 11:58AM

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."

May 11, 2011 2:48PM

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.

May 10, 2011 10:19AM

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.

March 21, 2011 8:57AM

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.

June 25, 2010 11:47AM

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.

December 11, 2009 4:33PM

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.

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