TESTIMONY OF THE COMPETITIVE ENTERPRISE INSTITUTE
From the May 2001 CEI UpDate
The question on so many lips in the wake of the unveiling of the President’s energy package was: “What about conservation?” Energy conservation seems to have become the touchstone by which every branch of government should be judged. Is Congress passing enough laws to mandate conservation? Are federal agencies issuing enough rules to promote conservation?
Well, there are three branches of government, aren’t there? And so here’s my question: Is the Supreme Court doing its part for energy conservation? I’m not asking about whether the Court is turning down its thermostat and dimming its office lights. What I want to know is whether the Court is taking energy conservation into consideration when it issues its decisions. True, the Court’s rulings should be based on constitutional doctrines and enacted statutes and judicial precedent. But surely, in the face of an energy crisis, the Supreme Court should issue an occasional decision to remind us, irrespective of the law, about the need to reduce energy consumption.
As luck would have it, the Supreme Court just happens to have before it the perfect case for doing so—Danny Kyllo v. United States, argued before the Court on February 20 and likely to be decided shortly. In 1992 Mr. Kyllo was the lucky winner of a free residential energy audit conducted by the Oregon National Guard. Well, not quite. Mr. Kyllo was suspected of growing marijuana indoors, and so a National Guard sergeant trained an “Agema Thermovision 210” device on his home.
Now, Agema makes some very impressive thermal monitoring equipment. Type “Agema Thermovision” into a Yahoo search, and you’ll quickly learn how sophisticated this technology has become. Even with the relatively basic 210 model, the sergeant found unusually high amounts of heat being emitted from Mr. Kyllo’s house. Less than two weeks later federal agents searched the house, found indoor marijuana plants, and arrested him.
The legal question is whether the sergeant’s use of the Thermovision was an unconstitutional search of Mr. Kyllo’s home, or whether he was entitled to stand outside the house and use his monitor without a warrant to observe the thermal emanations produced by the indoor agricultural activities.
The 9th Circuit issued a split decision upholding the monitoring. Personally, I think that ruling was incorrect. I worry that new technologies will allow the state to observe things through our walls that we’d just as soon keep private (or at least reveal them only on Jerry Springer). But at times like this, the real issue isn’t the Fourth Amendment and privacy. It’s energy conservation.
What will the Supreme Court’s decision in Kyllo v. United States have to do with energy conservation? Plenty! For example, if the Court disallows the search, then Mr. Kyllo will have little incentive to grow marijuana in a more energy-efficient manner. Oh, he might save a few bucks by investing in more efficient bulbs when his current ones burn out, but that will hardly meet society’s conservation needs.
On the other hand, if the Court rules against Mr. Kyllo, think what that will mean for the energy-conserving habits of indoor marijuana cultivators nationwide. Once they know their homes are legally subject to warrantless thermal monitoring, they’ll go all out to cut down their energy use dramatically. They’ll invest in the most efficient growing bulbs imaginable, bulbs that maximize their output of focused growing light while minimizing extraneous heat production. They’ll install premium weather stripping on their doors and they’ll quadruple-glaze their windows. They’ll double-caulk all those drafty wall crevices. Most of all, they will insulate, insulate, insulate! After all, if heat doesn’t leave the house, then it can’t be detected by Agema.
The results will be dramatic: super energy-efficient homes that will be the envy of the neighbors and the talk of the town. Environmentalist groups will give them awards. Green home and garden magazines will publish beautifully photographed articles about them. (“Careful where you point that camera, please.”) Schools will send busloads of students to tour them on Earth Day. (“I’m sorry, Earth Day isn’t until next week. And don’t you guys look a bit old for fourth graders? Oh, my mistake; I’ve never seen a warrant filled out in crayon before.”)
I realize that some people might regard their Fourth Amendment rights as too precious to be sacrificed to the cause of energy conservation. On the other hand, with blackouts in California and predictions of $3 per gallon of gasoline, it’s clear that we need to make some sacrifices. Clearly, no politician has had the courage to propose a constitutional amendment to give energy conservation its rightful place in our social contract (though Al Gore is reportedly working on this). All the more reason for the Supreme Court to step forward.
Sam Kazman ([email protected]) is CEI’s general counsel.