My congressional testimony this week: EPA’s Science Advisory Board

On Wednesday, May 20, 2015, I testified before a senate subcommittee seeking to make EPA’s Science Advisory Board more transparent, effective, and fair.  The senate bill at issue, S. 543, is being proffered in response to criticism that EPA is not using the Board properly to provide peer review of the scientific bases of its regulatory proposals.  My testimony criticized EPA’s failure to send proposed regulations governing carbon dioxide emissions to the Board for expert analysis before finalizing the rules.  Carbon dioxide is a  natural substance that is everywhere and in everything.  By regulating that ubiquitous substance, EPA gives itself the potential authority to regulate virtually everything, everywhere.  That is an unprecedented reach for power by a federal administrative agency.  Accordingly, if anything merits peer review from the top scientific experts, it is the scientific analysis forming the foundation of EPA’s carbon dioxide regulatory proposals.  For more details, see my written and oral (time stamp 41) testimony.

Is the Constitution a paradox?

In defending the constitutionality of the Utah prairie dog regulation, the government makes a paradoxical claim. Conceding that federal intrusions into areas of traditional state authority are unconstitutional, the government nonetheless argues that the Necessary and Proper Clause allows the … Continue reading

Watch Ted Hadzi-Antich’s Testimony on EPA Accountability

UPDATE: View Ted Hadzi-Antich’s testimony on EPA accountabiliy during a hearing entitled, “Oversight of Scientific Advisory Panels and Processes at the Environmental Protection Agency.” The panel discussion begins on May 20th, at 9:30 AM EDT.

I’ve been invited to testify next week before the United States Senate Committee on Environment and Public Works (Subcommittee on Superfund, Waste Management, and Regulatory Oversight) regarding ways in which EPA is violating the statutory requirement to obtain peer review of regulatory proposals from the Science Advisory Board.

In 2009, when EPA issued its first regulation governing greenhouse gas emissions, it failed to submit the regulatory proposal to the Board.  Several subsequent greenhouse gas emissions standards went down the same wrong path.  Those EPA failures to obtain peer review of the science underlying the greenhouse gas regulations were bald statutory violations, so PLF sued EPA to enforce the peer review requirements.  Look here for more information regarding our challenge to the greenhouse gas emissions standards for cars, and here for trucks,  It looks like Congress is paying attention to these case.

California can’t arbitrarily ban mining

The California Supreme Court is considering an important case concerning whether a state can frustrate federal law and deprive people of their livelihoods for no good reason. PLF filed this amicus brief in the case, joined by the Western Mining … Continue reading

It’s cap and trade time again

On Friday, May 1, 2015, we filed our final brief in California’s appellate court in connection with our challenge to CARB’s scheme to sell carbon dioxide emissions allowances at auction to the highest bidders.  CARB intends to generate billions of dollars of revenue for the state from the auctions and use the funds for a variety of purposes that have little if anything to do with reducing carbon dioxide emissions.  Those unrelated purposes include diversion of funds to California’s general fund, high speed rail, and projects to benefit disadvantaged communities.

The California Constitution requires that such uses of the revenues be authorized by at least a two-thirds supermajority vote of both houses of the legislature.  CARB purported to create the auction under a 2006 statute known as A.B. 32, which was not enacted by a supermajority legislative vote.  Accordingly, the auction revenues are unconstitutional taxes.  Moreover, nothing in A.B. 32 actually authorizes CARB to sell emissions allowances at auction for billions of dollars.

CARB argues that the auction revenues are not illegal taxes because those who purchase emissions allowances at auction do so voluntarily.  But that ignores the realities facing California businesses that must comply with the cap and trade regulation, such as PLF’s client Morning Star Packing Company.  Morning Star makes tomato paste from tomatoes received from farms by heating the tomatoes in boilers fueled by natural gas, which causes carbon dioxide emissions in excess of CARB’s regulatory threshold.  As a result, Morning Star’s tomato processing facilities are required to obtain a sufficient number of emissions allowances in order to continue operating in California.  Because Morning Star does not receive all its required emissions allowances free of charge from CARB, it is forced to obtain them through other means, including purchasing them from CARB at the auctions.  Under the cap and trade regulation, this is a necessary cost of staying in business in California.

To characterize such payments as “voluntary” stretches the meaning of the term beyond recognition.  One could just as well argue that the payment of California income tax is “voluntary” because a California resident could choose to move out of the state and no longer be subject to the tax.  But, for those who choose to remain in California, the state income tax does not somehow become “voluntary” and not a tax.  Merely because a company like Morning Star chooses to continue to do business in the state by purchasing emissions allowances at auction does not make the auction payments any more “voluntary” or any less of a tax.

A PLF video provides additional insight into the case, and more information can be found at PLF’s website.

Waters of the U.S.: Separating fact from fiction

Yesterday, PLF and the Heritage Foundation co-sponsored a forum on the Corps and EPA’s controversial proposed rule redefining the scope of the Clean Water Act.  As we have previously reported, this rule is a massive power grab in direct violation … Continue reading

Will the Supreme Court’s second Horne decision undermine Williamson County ripeness?

One issue that has received little attention following the oral argument in Horne v. United States Department of Agriculture is the question of what the Hornes’ remedy should be if they prevail. Readers will recall that the Supreme Court last … Continue reading

Supreme Court hears argument in raisin takings case

The Supreme Court yesterday heard oral argument in the “raisin takings case,” Horne v. United States Department of Agriculture. As we have previously explained, the Department of Agriculture brought an enforcement action against California raisin farmers Marvin and Laura Horne … Continue reading