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  • EPA Tries to Cover Its Tracks in Texas by Sending 17 Years of History Down the Memory Hole

    May 2, 2016 11:14 AM

    Background: The Regional Haze rule is a Clean Air Act regulation whose purpose is to improve the view at National Parks. Because it is an aesthetic rule, and not a public health regulation, Congress intended for States to be the primary decision-maker. In spite of State primacy under the program, EPA since 2009 has imposed federal Regional Haze plans on 15 States, at a cost of more than $5 billion, in order to achieve an “improvement” in visibility that is literally imperceptible. For a primer on the Rule, see my congressional testimony from March.

    This week, EPA proposed a “clarification” of its Regional Haze rule that ranks among the agency’s all-time most mendacious issuances.

    Normally, a “clarification” of an existing regulatory text is performed through interpretation. In this case, however, EPA says its clarification necessitates amendment of the underlying rule. This is the first big red flag—the agency’s Kafkaesque claim that the Regional Haze rule must be re-written in order to achieve its original meaning.

    The second big red flag is the agency’s assertion that its “clarification” reflects the agency’s “long standing interpretation.” The agency helpfully adds a footnote so as to demonstrate just how long standing is its interpretation. And the footnote cites a January 5, 2016 federal Regional Haze plan imposed on Texas (more on that below). So the agency’s “long standing interpretation” is about five months old.  For reference, consider that the Regional Haze rule was published in 1999.  In sum, the agency is asserting that a “long-standing” interpretation is one that has existed for five months out of 17 years.

  • CEI Sues over TSA's Body Scanners

    May 2, 2016 10:30 AM

    Today, CEI, The Rutherford Institute, CEI Vice President Iain Murray, and yours truly filed a lawsuit against the Department of Homeland Security in the U.S. Court of Appeals for the D.C. Circuit challenging the Transportation Security Administration’s (TSA) final rule on body scanners, which was published in March.

    CEI et al. argue that TSA’s final rule fails to consider one important factor related to the deployment body scanners: a potential increase in highway injuries and deaths. If that sounds crazy, let me explain. Past research suggests that post-9/11 airport security policies were so invasive that a number of would-be air travelers decided to drive instead. Given the fact that auto travel is far more dangerous than air travel, three Cornell University economists found that TSA’s invasive, time-consuming airport screening policies resulted in about 500 additional highway fatalities annually in the years following 9/11—more than a fully loaded 747 per year.

    Professors John Mueller and Mark Stewart have repeatedly highlighted this major omission from TSA’s benefit-cost and risk analyses, both in their excellent book Terror, Security, and Money, and in formal comments to TSA coauthored with the Cato Institute’s Jim Harper on the 2013 proposed rule on body scanners. CEI and former American Airlines CEO Bob Crandall made similar points in joint comments submitted to TSA.

    Yet, in the final rule, TSA failed to consider the human toll of their invasive policies with respect to the resulting air-highway modal substitution, which anyone should understand to be an important factor. Thus, we argue the rule is arbitrary, capricious, and contrary to law, and should be enjoined and set aside under the Administrative Procedure Act.

  • CEI's Battered Business Bureau: The Week in Regulation

    May 2, 2016 9:04 AM

    As the Federal Register passed the 25,000-page mark, new rules for the week ranged from fluorescent lamps to disaffected youth.

    On to the data:

    • Last week, 65 new final regulations were published in the Federal Register, after 53 the previous week.
    • That’s the equivalent of a new regulation every two hours and 35 minutes.
    • With 1,077 final regulations published so far in 2016, the federal government is on pace to issue 3,244 regulations in 2016. Last year’s total was 3,406 regulations.
    • Last week, 2,035 new pages were added to the Federal Register, after 1,496 pages the previous week.
    • Currently at 26,003 pages, the 2016 Federal Register is on pace for 78,323 pages. The 2015 Federal Register had an adjusted page count of 81,611.
    • Rules are called “economically significant” if they have costs of $100 million or more in a given year. Eight such rules have been published so far in 2016, one in the last week.
    • The running compliance cost tally for 2016’s economically significant regulations ranges from $729 million to $1.56 billion.
    • 85 final rules meeting the broader definition of “significant” have been published this year.
    • So far in 2016, 203 new rules affect small businesses; 30 of them are classified as significant. 
  • State Department Tells 28 Senators To Go Pound Sand

    April 29, 2016 5:23 PM

    The U. S. State Department replied this week to the 18th April letter to Secretary John Kerry from 28 Senators that pointed out that Palestine was recognized as a full member of the UN Framework Convention on Climate Change as of 17th March and therefore the United States must stop all funding of the UNFCCC as required by laws enacted in 1994 and 1990.  State’s snotty response to the Senators can be summarized thus: Go pound sand.

    Assistant Secretary of State for Legislative Affairs Julia Frifield wrote to Senator John Barrasso (R-Wyo.):

    “It is our view that neither the restriction referenced in your letter, section 410 of Public Law 103-236, nor the restriction contained in section 414 of Public Law 101-246, have been triggered by the Palestinians’ purported accession to the UNFCCC.  The UNFCCC is a treaty, and the Palestinians’ purported accession to it does not involve their becoming members of any UN specialized agency or, indeed any international organization.”

    Frifield makes two points.  First, by calling the membership of Palestine in the UNFCCC “purported,” she seems to be implying that it really isn’t so.  This is preposterous.  The UNFCCC issued a press release titled, “State of Palestine Joins UNFCCC.”  And the Palestinian delegation issued a press release that they have signed the Paris Climate Treaty, which is a part of the UNFCCC.

  • Power Plant Rule: EPA Defies Stay to Develop Legally Dubious Incentive Program

    April 28, 2016 3:18 PM

    The EPA yesterday took another step to advance the Obama administration’s flagship domestic climate policy, the so-called Clean Power Plan (CPP).

    As Politico reported:

    The EPA is moving forward with a component of the Clean Power Plan, sending proposed details and language for the optional Clean Energy Incentive Program to the White House Office of Management and Budget today, according to an EPA statement set to be released today. The CEIP would provide credit for power generated by new wind and solar projects in 2020 and 2021, as well as double credit for energy efficiency measures in low-income communities over that same period.

    “But,” Politico asks, “didn’t SCOTUS stay the Clean Power Plan?” Of course it did. On February 9, the Supreme Court told EPA to halt further proceedings on the rule. So how does EPA justify its continuing work on the CEIP? According to Politico:

    EPA will argue that advancing this piece of the rule doesn't violate the stay. “Many states and tribes have indicated that they plan to move forward voluntarily to work to cut carbon pollution from power plants and have asked the agency to continue providing support and developing tools that may support those efforts, including the CEIP,” the statement says. “Sending this proposal to OMB for review is a routine step and it is consistent with the Supreme Court stay of the Clean Power Plan.”

  • Why Is Employee Involvement an Unfair Labor Practice?

    April 28, 2016 3:16 PM

    U.S. labor law is largely based on the false narrative of an inequality of bargaining power between employees and employers. The theory goes that an employer will extort an employee down to their reservation wage, or lowest acceptable wage that is better than being unemployed.

    Tyler Cowen and Alex Tabarrok, both professors at George Mason University, dispel this myth. As they explain, “[B]uyers compete against other buyers (and sellers compete against other sellers). Firms buy labor and they are competing primarily not against workers but against other firms. Firms versus Firms! Now that is a real battle!”

    Meaning when companies are trying to determine what compensation to pay an employee, they are not thinking about shaking down an employee, but how much another company may pay the employee. Interestingly, the data show it is more likely that an employee leaves a company than an employer breaks off the relationship (see data here on quits vs. layoffs).

    Even still, labor unions and Democrats commonly argue workers need stronger voice in how a company is run. Yet, there is an obvious reason why employees are not given much of a say in company matters. The only voice an employee can have under American labor law is from a union. Other kinds of “employee involvement,” sometimes referred to as a “company union” or simply a formal system that gives employees input on how the company runs, have been illegal for decades. This is just another flaw in the outdated, 80-year-old National Labor Relations Act.

  • CEI Supports Vote to Block Labor Department's Fiduciary Rule

    April 28, 2016 10:49 AM

    Today, the U.S. House of Representatives is expected to vote on H.J. Res 88, the resolution pursuant to the Congressional Review Act to disapprove the Department of Labor fiduciary rule, which was introduced by Reps. Phil Roe (R-Tenn.), Charles Boustany (R-La.), and Ann Wagner (R-Mo.).

    The Competitive Enterprise Institute strongly supports this legislation. Congress must disapprove this regulation for many reasons, the first being the Obama administration’s blatant disregard of the statute that Congress wrote. The Employee Retirement Income Security Act of 1974 gives the Department of Labor very limited authority over employment-based pensions. It in a way authorizes the Labor Department to redefine the term “fiduciary”—much less in a way that differs from decades-old interpretations of the term from the Securities and Exchange Commission and state common law precedent—in order to bring a broad swath of financial professionals under its jurisdiction.

    In the proposed rule, the Labor Department didn't even bother to try to disguise its contempt for the intelligence of American savers. It says, most individuals “cannot prudently manage retirement assets on their own,” and that improved disclosure won’t help because savers “generally cannot distinguish good advice, or even good investment results, from bad.” The Labor Department has never disavowed this outrageous justification for the rule.

  • CEI Challenges Illegal "Vapes on a Plane" Regulation

    April 28, 2016 8:30 AM

    Today, CEI, the Consumer Advocates for Smoke-free Alternatives Association (CASAA), and CEI employee Gordon Cummings, as a private individual, filed a lawsuit challenging the Department of Transportation’s (USDOT) recent regulation extending the existing statute prohibiting smoking aboard aircraft to cover electronic cigarettes. The reason is simple: Congress never gave regulators the power to prohibit e-cigarette use aboard aircraft.

    The agency is inventing authority it clearly does not have. Congress granted USDOT power to implement its law under 49 U.S.C. § 41706 prohibiting “[a]n individual from smoking” during a scheduled flight and to “require all air carriers and foreign air carriers to prohibit smoking.” Yet, as even USDOT conceded in its proposed rule, electronic cigarettes do not combust any material or produce smoke. Thus, it is impermissible to rely on Congress’s no-smoking statute to promulgate a regulation outlawing e-cigarette use on aircraft. Anyone concerned about government wrongfully trampling on the rule of law should be worried by this abuse of power.

    As CEI and CASAA noted in comments to the agency in 2011:

    Statutes should be construed under their ordinary and plain meaning. Merriam-Webster defines smoke as “the gaseous products of burning materials especially of organic origin made visible by the presence of small particles of carbon.” An e-cigarette produces no smoke and no combustion is involved in its operation. As the D.C. Circuit panel noted in Sottera, e-cigarettes “are battery-powered products that allow users to inhale nicotine vapor without fire, smoke, ash, or carbon monoxide.” 627 F.3d at 893 (emphasis added). DOT’s arguments that the use of e-cigarettes resembles smoking have nothing to do with the fact that their use does not involve smoking. For example, the fact that this use involves “an inhalation and exhalation similar to smoking cigarettes” (76 FR 57,009) means nothing. Blowing air through a straw (such as the hollow plastic coffee stirrers handed out by flight attendants, which passengers occasionally play with in this manner) also involves inhaling and exhaling, but it hardly constitutes smoking.

    As I noted last year in an article for

    The DOT states that Congress’ intent in prohibiting smoking in the skies was to “improve air quality within the aircraft, reduce the risk of adverse health effects on passengers and crewmembers, and enhance aviation safety and passenger comfort.” The law was intended to address secondhand smoke, and the department concedes “a vapor, rather than smoke, is produced.” So how does the Department of Transportation justify its proposal? By noting, that e-cigarettes “require an inhalation and exhalation similar to smoking cigarettes.”

    So, by DOT’s logic, when Congress referred to “smoke” and “smoking,” it meant anything that might vaguely resemble smoke and smoking, rather than smoke itself and its resulting harms, even though Congress enacted a clear law in which the terms “smoke” and “smoking” are not ambiguous.

    The Department of Transportation has no authority to regulate vaping, an area over which it has no jurisdiction. It may claim that it is simply interpreting “smoking” to cover the use of e-cigarettes, but as the Supreme Court has made clear, an “agency may not bootstrap itself into an area in which it has no jurisdiction” by stretching the language of a statute.

    Fundamentally, this is a rule of law issue. Regardless of your views on vaping on planes, the statute USDOT is attempting to illegally rewrite does not cover smoke-free vapor products. As had been the case until the final rule, airlines voluntarily prohibited vaping aboard their aircraft. This should be their right and it should be preserved and respected.

  • Congress Must Pass Email Privacy Act

    April 27, 2016 11:06 AM

    This week, the U.S. House of Representatives will vote on the Email Privacy Act (H.R. 699) sponsored by Rep. Kevin Yoder (R-Kan.). The Competitive Enterprise Institute strongly supports this legislation, which would amend the 1986 Electronic Communications Privacy Act (ECPA) to require that the government obtain a warrant, based on a showing of probable cause, to compel a cloud computing provider to divulge the contents of a user’s private electronic communications. The Email Privacy Act enjoys strong bipartisan support, with well over 300 House cosponsors—a majority of House Republicans and Democrats.

    Yesterday, CEI joined dozens of public interest groups, companies, and activists in a coalition letter urging members of Congress to vote for H.R. 699. Reforming ECPA isn’t a new priority for CEI. We first urged Congress to rewrite the statute in written testimony to the House and Senate Judiciary Committees in 2010.

    Existing law doesn’t adequately protect Americans from warrantless searches of their private data stored with cloud and mobile providers. Congress must make clear that law enforcement cannot access users’ private information—such as stored emails and backup files—without showing probable cause or even notifying users that the government has accessed their private data. The Email Privacy Act would protect Americans’ privacy by making clear that the Fourth Amendment to the Constitution, which protects the “right of the people to be secure … against unreasonable searches and seizures,” applies in the digital world.  

  • Wind Energy Industry Suffers Fuel Shortage in 2015

    April 27, 2016 11:05 AM

    Wind energy can’t compete. Instead, it exists only by the grace of favorable politics. On the supply side, the industry enjoys the federal production tax credit, which awards tax equity to owners of wind power for each megawatt hour of generated electricity. On the demand side, the industry enjoys Soviet-style production quotas in 30 states that force ratepayers to use increasing amounts of wind power.

    Yet even with all this political “wind” at its back, sometimes the industry nonetheless falls short—because nature won’t cooperate. According to James Osborne at Fuel Fix

    Last year might have been a banner year for wind turbine construction, but not for the wind itself.

    According to new data from the U.S. Energy Information Administration, the amount of electricity generated from wind turbines grew by less than 10 million megawatt hours last year, the smallest increase since 2007.

    In a report Thursday government analysts attributed the slow down to decreased wind speeds across the western half of the United States during the first six months of 2015.

    “The same weather patterns resulted in stronger winds in the central part of the country, where wind generation growth in 2015 was most pronounced,” the report read.

    The fall off came even as wind energy capacity grew by its highest level in three years, as more than 8,000 megawatts worth of new turbines were installed on the grid, according to EIA.

    To recap: Due to the wind not blowing, there was a paradox for the wind energy industry in 2015 whereby capacity installment was historically high, while generation was historically low. By my back-of-the-envelope calculation, the new wind power capacity operated 13 percent of the time in 2015, which is hardly the hallmark of reliability.


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