April 1, 2015 3:36 PM
Sometimes, the media propagates anti-business myths, in the course of reporting on legislation that has little impact on business. So it is with its recent reporting on the Religious Freedom Restoration Act legislation enacted in Indiana, and passed by Arkansas legislators. (CEI takes no position on such legislation, which we previously discussed at length at this link.)
As The Washington Examiner notes, “The federal version of Indiana's bill, which was signed into law in 1993 by Democratic President Bill Clinton, prohibits the federal government from substantially burdening a person's free exercise of their religion — except in instances where the government can prove it has a ‘compelling interest’ and can impose the burden in the least-restrictive way possible.”
In reporting on the Indiana legislation, many media sources have erroneously suggested that it is somehow radical to give rights to businesses or corporations (as opposed to individuals) and that such legislation would be unprecedented in allowing religious freedom to be asserted as a defense to a lawsuit by a private person.
Press coverage has also often falsely implied that religious-freedom legislation gives religious businesses a broad right to discriminate against gays and lesbians, when in fact no such right has ever been recognized under the similar legislation that already exists at the federal level and in many states. As The Washington Examiner points out, “The words ‘gay,’ ‘lesbian’ and ‘sexual orientation’ are nowhere to be found in” its “language,” and “no religious freedom bill has been used successfully to defend discrimination against members of the LGBT community in the 22 years since Congress and states began adopting such laws.”
This is not because of the novelty or rarity of such laws: as The Washington Post’s Hunter Schwarz notes, many states have their own Religious Freedom Restoration Act, and “Indiana is actually . . . one of 20 states with a version of the Religious Freedom Restoration Act.” Instead, religious defenses to gay-rights claims tend to fail because the court finds a “compelling interest” justifying regulation, or finds no “substantial burden” on the business owner, which illustrates the limited reach of these religious freedom statutes as applied to discrimination claims.
But, in fact, there is already a Religious Freedom Restoration Act at the federal level, and as Washington Post fact-checker Glenn Kessler has observed, it has already been interpreted to apply as a defense in lawsuits brought by private persons, by most (but not all) of the federal appeals courts that have considered the question, including “The U.S. Courts of Appeals for the 2nd, 8th, 9th and D.C. Circuits.”
I have previously explained why businesses should be able to assert constitutional rights and other civil liberties as a defense to lawsuits by private people at this link. Thus, Kessler’s colleague Sandhya Somashekar was mistaken to write earlier that Indiana’s law is “fundamentally different” from the “federal” RFRA, which “protects only individuals seeking relief from government intrusions on their religious beliefs, while “[t]he Indiana law and others like it also apply to disputes between private parties.” In reality, Indiana’s law merely makes explicit what was already implicit in the federal law, as commentators like Reason’s Jacob Sullum and law professor Josh Blackman have observed.
The media have also suggested it is somehow radical to give rights to businesses (as opposed to individuals). But it makes little sense to deny rights to an association of persons, such as a corporation, since that would allow the government to effectively use the corporate form to take away the rights of real people. The Supreme Court’s Hobby Lobby and Gonzales decisions, like the great majority of prior court rulings, allowed corporations to rely on the federal Religious Freedom Restoration Act. I have previously explained why corporations logically have rights at this link, noting that corporations also have rights under international human-rights accords, such as the European Convention on Human Rights. (See also this Detroit News op-ed by CEI’s Ryan Young and me at this link, and my commentary, “Amendments try to take away the rights of corporations and gay people.”)
There is nothing novel about a corporation having constitutional or other rights: The Supreme Court first recognized such rights in ruling in favor of Dartmouth College, an incorporated entity, in its decision two centuries ago interpreting the Constitution’s Contracts Clause, in Dartmouth College v. Woodward (1819).
April 1, 2015 1:59 PM
At recent hearings on the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697), senators, environmental activists, and local government officials claimed that the Toxic Substances Control Act (TSCA) law is not sufficient protect public health. As I have argued before, that’s certainly not the case.
There may be an economic reason to reform this law—to preempt a growing patchwork of nonsensical state-level consumer product regulations—but there’s no legitimate “safety” reason for reform.
Still, activists and some members of Congress at the hearing complained that TSCA’s risk standard has prevented the EPA from banning “a known human carcinogen,” i.e., asbestos. Cosponsor of S. 697 Senator Tom Udall (D-N.M.) exclaimed at the hearing, “I think we all agree: TSCA is fatally flawed. It has failed to ban even asbestos.”
Activists and members of Congress point out that EPA failed to address asbestos in part because TSCA requires EPA to pick the “least burdensome” regulation to achieve its goals.
But how can that be a bad thing? Shouldn’t we want to achieve our goals at the lowest costs? It doesn’t say EPA should pick a regulation that is less safe; rather, it says that EPA should simply pick a less expensive means to meet the safety goal.
That requirement is part of TSCA’s robust risk standard that holds regulators accountable and prevents them from passing rules that do more harm than good. Under TSCA, EPA may regulate when the agency finds that a chemical may pose an “unreasonable risk of injury to health or the environment.” This standard requires weighing the risks of the chemical against the risks of the regulatory action.
People who use the asbestos case to push TSCA reform are either grossly misinformed about the case or they are simply being disingenuous. It is true that the rule was thrown out by a federal court in part because EPA did not bother to find the “least burdensome” approach to meet its goals. In addition, the court pointed out that the rule might have produced more deaths than theoretical lives saved. Accordingly, this is not a TSCA failure, it’s a life-saving success!
March 31, 2015 3:38 PM
Myron Ebell of the Competitive Enterprise Institute responded to the Obama Administration’s submission of its intended nationally-determined contribution (INDC) to the United Nations:
“President Obama has pursued his domestic climate agenda without trying to build support for it with the American people or in Congress, and today’s INDC submission is no different. The President thinks he can make an international commitment to reduce greenhouse emissions by up to 28 percent of 2005 levels, and thereby limit economic growth, without consulting Congress. The administration is making this commitment to the forthcoming Paris Accord under the UN Framework Convention on Climate Change without any authorization from Congress and without broad public support. Governments in other countries should be aware that the President’s plan is dead on arrival in Congress.
“The U.S.’s INDC goes far beyond the commitments undertaken by the Clinton Administration under the Kyoto Protocol in 1997. But the Senate did not ratify the Kyoto Protocol, and the Congress refused to enact cap-and-trade legislation or any other significant climate legislation. Nor has Congress given any indication that it will support major elements in the plan submitted to the UN. The largest single component of the plan is the EPA’s proposed Clean Air Act regulations to reduce emissions from power plants. These rules are being challenged in federal court by at least 13 states and are opposed by a majority in both the House and Senate.”
March 30, 2015 3:49 PM
On March 17, an international panel of experts gathered in Brussels to discuss the proposed EU interchange fee regulations that are set to be approved by the Council of Ministers in the next few months. Hosted by the International Alliance for Electronic Payments, experts from France, Austria, Lithuania, the UK, and the USA each outlined different objections to the regulations based on the own countries’ experience and situations.
Interchange fees are the fees levied by banks and payments card networks from merchants and vendors when a consumer uses a payment card to purchase a good or service. The proposed EU regulation will cap these fees at the rate of 0.2 percent of the transaction value for consumer debit cards and at 0.3 percent for consumer credit cards. For consumer debit cards, the regulation also gives flexibility to Member States to define lower percentage caps and impose maximum fee amounts. Payment card networks will also have to separate their operations and infrastructure businesses.
The panel, chaired by Daniel Hannan MEP (European Conservatives and Reformists) consisted of:
- Pierre Garello, Professor of Economics at Aix-Marseille University
- Barbara Kolm, President of the Austrian Economic Center
- Zilvinas Silenas, President of the Lithuanian Free Market Institute
- Matthew Sinclair, Senior Consultant, Europe Economics, and
- Iain Murray, Vice President of the Competitive Enterprise Institute (USA)
March 30, 2015 12:11 PM
Today, Secretary of Transportation Anthony Foxx unveiled the administration’s latest surface transportation reauthorization proposal. Like the previous White House bill, the latest iteration of the GROW AMERICA Act is unlikely to go anywhere on Capitol Hill. The president’s proposal to fund much of his increased infrastructure spending relies largely on a one-shot tax repatriation scheme, something that will do nothing to improve the long-run fiscal position of the Highway Trust Fund. In addition, the White House proposal would make the very wasteful TIGER discretionary grant program permanent. See this post for more on what good and bad surface transportation policy looks like.
But the administration’s GROW AMERICA 2.0 proposal isn’t all bad. In fact, it contains two very smart elements that Congress should attach to their own reauthorization package.
First, the administration proposal would repeal the current prohibition on states tolling their own Interstate segments, codified at 23 U.S.C. § 129, while also repealing the three-slot Interstate System Reconstruction and Rehabilitation Pilot Program, which was established by the Transportation Equity Act for the 21st Century of 1998 and has failed to promote Interstate reconstruction through tolling. Contrary to popular belief, the states, not the federal government, own and operate the Interstate Highway System. Currently, the only tolled segments of the Interstate system were grandfathered in by the Federal-Aid Highway Act of 1956. No federal-aid funds can be used to maintain these roads, which constitute a little over 6 percent of the Interstate Highway System. Tolling offers a number of advantages over fuel tax or non-user funding. Reason Foundation’s Bob Poole has developed a plan to reconstruct and modernize the Interstate Highway System through the use of all-electronic highway tolling, something policy makers should consider as an alternative to gas tax increases and Highway Trust Fund bailouts.
Second, the current cap on tax-exempt private activity bonds, which bring financing parity to infrastructure development by allowing the private sector to take advantage of similar debt instruments as the public sector, would be raised from $15 billion to $19 billion (see 26 U.S.C. § 142(m)(2)(A)). Ideally, this cap would be repealed, but increasing it is at least a step in the right direction.
To be sure, there is little in the latest GROW AMERICA Act for free marketeers to love. But Congress would be wise to take seriously the administration’s recommendations on Interstate tolling and private activity bonds.
For more on federal surface transportation reauthorization, see CEI's agenda for Congress, Free to Prosper.
March 30, 2015 12:10 PM
Along with last wwek’s usual slew of final regulations covering everything from power plants to televisions, an additional 55 proposed regulations also hit the books.
On to the data:
- Last week, 58 new final regulations were published in the Federal Register, after 68 new regulations the previous week.
- That’s the equivalent of a new regulation every two hours and 54 minutes.
- So far in 2015, 674 final regulations have been published in the Federal Register. At that pace, there will be a total of 2,856 new regulations this year, which would be nearly 1,000 fewer rules than the usual total.
- Last week, 1,398 new pages were added to the Federal Register, after 1,157 pages the previous week.
- Currently at 16,531 pages, the 2015 Federal Register is on pace for 70,047 pages.
- Rules are called “economically significant” if they have costs of $100 million or more in a given year. Six such rules have been published so far this year, one in the past week.
- The total estimated compliance cost of 2015’s economically significant regulations ranges from $693 million to $746 million for the current year.
- Sixty-two final rules meeting the broader definition of “significant” have been published so far this year.
- So far in 2015, 137 new rules affect small businesses; 23 of them are classified as significant.
March 27, 2015 4:07 PM
Earth Hour vs. Human Achievement Hour—two irreconcilably opposed events scheduled for the same time: 8:30-9:30 pm EST, Saturday, March 28, 2015. Earth Hour protestors will turn off their lights to express solidarity with the Earth and “raise consciousness” about climate change. Human Achievement Hour partiers will turn on their lights and, in countless individual ways, celebrate the creativity of an energy-rich civilization. I may join some friends at a pub—or just stay home, plug in the Telecaster, crank up the tube amp, and let the good times roll.
The Earth Hour crowd would have you believe that our mostly fossil-fueled civilization is unsustainable. I know of no better antidote to their ideology than energy analyst Alex Epstein’s new book, The Moral Case for Fossil Fuels. Epstein presents the big picture Earth Hour types ignore, belittle, or deny. Human beings using carbon dioxide (CO2)-emitting energy did not take a safe climate and make it dangerous. Rather, they took a dangerous climate and made it dramatically safer.
Building on the work of economist Indur Goklany, Epstein examines aggregate mortality and death rates related to extreme weather in the International Disaster Database (EM-DAT) maintained by the Brussels-based Centre for Research on the Epidemiology of Disasters (CRED).
He appropriately begins with drought, historically the leading source of climate-related deaths. Drought can decrease the two most essential commodities of human life—water and food.
In the 1920s, drought killed an estimated 472,000 people worldwide. What’s happened since then? Fossil fuel consumption skyrocketed. Carbon dioxide concentrations increased by almost one-third. The world warmed by approximately 0.8C. Deaths related to drought declined by an amazing 99.8 percent even though population in drought-prone areas tripled or quadrupled.
What caused this remarkable improvement in the human condition? Affordable energy, the lion’s share of which comes from fossil fuels, reduces drought risk in manifold ways.
March 27, 2015 3:44 PM
It’s the most wonderful time of year! Human Achievement Hour is once again upon us, giving us reason to pause and consider recent innovations that have or will significantly improve the human condition. I usually like to focus on some development in medicine or environmental tech, but this year I feel compelled to highlight what may be the most significant advancement in the modern economy. What began with eBay—the digital garage sale—has now blossomed into an entire economy and a way of life. You may have heard it called the “sharing economy,” or “collaborative consumption” is actually about efficient resource allocation.
Instead of leaving rooms or homes empty and unused families can make extra money by renting them out to vacationers or business people through Airbnb or VRBO. Instead of paying to leave your car at the airport—you can now have someone pay you to use your car while you’re away. The sharing economy allows just about anyone to instantly turn his or her otherwise underused or unused resources or skills to turn a profit. The result is an economy with highly personalized goods and services that are cheaper, higher quality, and more efficient.
Collaboration allocates resources efficiently: For most people living in a city with public transportation and limited parking, it may not make sense to own a car. However, there are certain times when a car becomes necessary to run certain errands or get to locations not accessible by public transportation. Luckily, services like RelayRides and Getaround connect people who need cars with their neighbors who have cars, but aren’t using them. Spinlister and Liquid offer a similar sharing-service for bikes.
Time is also a resource, and when you’re busy preparing for a party it’s a resource that might be in short supply. Nobody likes to make that third trip to the liquor store for those few bottles they forgot to pick up. Luckily there are platforms like Klink, an alcohol delivery app operating in DC, Ann Arbor, and Central Florida. It allows customers to use their smart phone to shop local liquor stores which then deliver it (without a markup) to their door.
Similarly TaskRabbit allows you to outsource errands to qualified people in your area for an hourly rate. You can use the app to find people to help you move, clean your home, do repairs, and staff your events, among other things. Similarly, Zaarly is a peer-to-peer marketplace for services.
For those hurt by the economic downturn in 2008, services like VRBO and Airbnb provides an opportunity to rent out a room in their home—or the entire house—and to make a little extra money from a resource that would otherwise have remained unused. Customers benefit by getting lower rates, a place with “character,” or a rental in a location where hotels might not be available.
March 26, 2015 5:24 PM
I saw some unfortunate news today: Grover Norquist’s Americans for Tax Reform sent a letter to Congress opposing a possible increase in the cap of the airport Passenger Facility Charge (PFC). ATR is often an ally in CEI’s libertarian battles, but here they are both wrong on the facts and inadvertently supporting a tax-and-spend federal regime that the PFC and other facility user charges can help counter.
Before I get to why ATR is completely wrong on federalist and free-market grounds in opposing a PFC cap increase, let’s be clear about what a PFC is, why it exists as it does, and what Congress may (or may not) do with the cap.
First, the PFC is a local user charge. Congress authorized its creation in 1990 and it allows airports to charge per-passenger enplanement fees. The revenue raised can then only be used for a very narrow class of airport improvement projects. These funds are collected locally and never touch the federal Treasury.
Second, the only reason the PFC exists is because Congress outlawed user-based airport charges in the Airport Development Acceleration Act of 1973 (widely known as the “Anti-Head Tax Act” and codified at 49 U.S.C. § 40116). Why, you might ask, would Congress intervene? Well, this was a case of pure cronyism. In 1970, Evansville-Vanderburgh Airport Authority enacted an ordinance requiring that airlines using their airport collect and remit a $1 per passenger fee, minus any administrative costs the airlines assumed in the collection process. Delta Air Lines sued, challenging the charge on Commerce Clause grounds. Ultimately, the U.S. Supreme Court accepted the case and rejected Delta’s rent-seeking arguments in 1972. In response to their loss before the Supreme Court, Delta and other carriers then lobbied Congress to outlaw airport user fees, only taking one year to get their terrible law enacted.
Third, the PFC cap currently stands at $4.50. This was last raised in 2000 and inflation has eroded its buying power by approximately half since then. While CEI supports uncapping PFCs (and ideally repealing both the Anti-Head Tax Act and the PFC-creating section of the Aviation Safety and Capacity Act of 1990, and then letting airports decide their user-fee regimes without federal approval), this is unlikely in this Congress. Instead, we agree with the airports that raising the PFC cap to $8.50 and then indexing it to inflation is a sound move. Note that the PFC cap is not a charge itself, only the limit at what airports can locally decide to charge per passenger. This distinction is important in understanding why ATR’s opposition to the PFC makes no sense.
March 26, 2015 2:23 PM
Dan Nosowitz in Modern Farmer offers some insights on the recent class action lawsuit filed against California winemakers. The plaintiffs found that some inexpensive wines contained arsenic at levels exceeding the federal drinking water standard for this substance. Nosowitz rightly points out that the standard is for water, not wine and “people don’t, or shouldn’t, drink as much wine as water.”
Well, let’s not go that far… kidding of course! Moderation is surely a good idea when it comes to alcohol consumption. Yet even if you drank as much wine as you do water, there’s still no reason to be alarmed about arsenic. The levels in wine are still too low to have any significant adverse impacts, and ironically, such small amounts might even have health benefits.
Arsenic is an element that naturally occurs in the earth’s crust, so traces of arsenic inevitably appear in food and water. Certainly, high levels of arsenic are not healthy and concentrated exposures can be immediately deadly. But the trace levels found in water and food are rarely an issue. Problems have emerged primarily in developing nations like Bangladesh where poor people drink from untreated water sources with arsenic levels that range in the hundreds of parts per billion (ppb), and sometimes more than 1,000 ppb.
It’s worth noting that the levels allegedly found in wine are reportedly just five times greater (or 500 percent higher as noted in the press) than the federal drinking water standard of 10 ppb. So, some number of samples—we don’t know how many—tested by the plaintiffs in this case had some level of arsenic near the 50 ppb level. But did you know that until 2006, that was the allowable level in drinking water in the United States and it had been for decades?
The U.S. Environmental Protection Agency (EPA) changed the standard to 10 ppb in 2001 with full compliance not required until 2006. The 10 ppb standard for arsenic in drinking water is excessively overcautious. When EPA proposed it, it was very controversial because the cost to small drinking water systems was substantial and the benefits highly questionable. EPA’s Science Advisory Board highlighted lots of problems with EPA’s science and maintained that the change could actually undermine public health. The SAB explained that the costs might cause some small communities to disconnect their water systems, forcing people to use untreated well water, but EPA finalized the rule anyway.
If you look at the history, you can see that EPA did not change the standard for safety reasons; they did it for political ones. You may remember, environmental activists attacked the Bush administration for taking time to reconsider changing the standard, which the Clinton administration rushed out during the final hours of the Clinton presidency. Green groups made it sound like the Bush administration was adding arsenic to the water supply. And this bad press made a rational and scientific debate impossible.