Sam Kazman

Yes, the recent ruling in Competitive Enterprise Institute v. Environmental Protection Agency (D.D.C. No. 12-1617) is good news for the EPA, but the lawsuit still produced some pretty valuable results for both CEI and the public at large.

This case involved then-Administrator Lisa Jackson’s use of her “Richard Windsor” email alias. As the court noted, the fact that administrator Jackson and other EPA officials used alternative email addresses “raised questions about the agency’s compliance with federal record-keeping laws as well as the completeness of its responses to certain FOIA requests.” In the court’s words, this was a matter of “appropriate… concern,” and not just for us.

The court ruling has some entertaining references to CEI’s so-called “conspiracy theory.” We didn’t use that phrase in our pleadings, but we did argue that EPA’s filings and declarations shouldn’t get the usually automatic presumption of good faith. After all, as recently as last August, another court found the agency had handled a Landmark Legal Foundation FOIA request in “bad faith,” and six months before that, EPA’s Region 8 Administrator resigned after having apparently misrepresented his use of a private email account for official business. In short, we believe the court erred in how it applied the good faith presumption, because we weren’t exactly suing Snow White here.

Our FOIA request to EPA on this issue produced more than 10,000 records in response, all of which were given to CEI after the lawsuit was filed. The judge also ruled that EPA must disclose the White House email address used by top advisor Carol Browner to communicate with EPA. (Ms. Browner, according to The New York Times, was a key partner in the “we put nothing in writing, ever” strategy used by top White House and California environmental officials several years ago. Not that we’re calling it a conspiracy, mind you.)

Ms. Browner’s White House email account is probably inactive now, so we’ll have to find another way to send her our best wishes.

We had zero documents before filing this case. We now have more than 10,000, and of those, more than 5,000 were produced in full. We also know quite a bit more about the continued use of personal email accounts by agency officials than we did before.

The ruling on the partial and full withholdings wasn’t all that kind to us, but we’ll survive. And, thankfully, so will the documents we received.

The court’s ruling today in Halbig v. Sebelius delivers a major blow to the states that chose not to participate in the Obamacare insurance exchange program. It is also a blow to the small businesses, employees and individuals who live in those states as well. In upholding this IRS regulation that is contrary to the law enacted by Congress, this decision guts the choice made by a majority of the states to stay out of the exchange program. It imposes Obamacare penalties on employers and on many individuals in those states, penalties that Congress never authorized, putting their livelihoods and the jobs of their employees at risk. Worst of all, it gives a stamp of approval to the Administration’s attempt to substitute its version of Obamacare for the law that Congress enacted.

The court does all this despite its own finding that our arguments were supported by, in its words, “the plain language” of the law’s key provision regarding state-established exchanges.  And by erasing the distinction between functions carried out by states and functions carried out by the federal government on behalf of states, the ruling undercuts some basic aspects of federalism. We have appealed this decision, and will shortly move to expedite the appeal.

> View more about the lawsuit at cei.org/obamacare

The IRS today acknowledged that it had wrongfully targeted Tea Party groups for heightened scrutiny. In trying to explain the agency’s mistake, IRS spokeswoman Lois Lerner reportedly stated “I’m not good at math” – an excuse that now seems to be going viral.

Given the smashing success of this phrase, we wonder whether the IRS will now use a few variations of it in the new Obamacare lawsuit that it’s facing. This lawsuit challenges the legality of the IRS’ unauthorized extension of the employer mandate to states that have refused to set up their own health insurance exchanges. The plaintiffs contend that Congress limited the employer mandate to participating states, and that the IRS has no power to rewrite the law.

Perhaps, rather than present a detailed legal defense of its position, the IRS will simply claim one or more of the following:

“We’re not good at taking no for an answer”;

“We’re not good at interpreting complicated sentences written by another government body, especially when that body is Congress”;

“We’re not good at dealing with states that aren’t team players, even if those states outnumber the states on our team.” (Thirty-three states have refused to participate in the exchange program); and/or

“We’re not good at Latin, so the phrase ‘ultra vires’ (‘beyond our powers’) is Greek to us.”

Dodd-Frank’s destructive economic impact continues to grow week by week. Last June, CEI and two other plaintiffs, the State National Bank of Big Spring, Texas, and the 60 Plus Association, filed a lawsuit challenging the constitutionality of several major parts of the law. In September, the states of Michigan, Oklahoma, and South Carolina joined the lawsuit.

Yesterday, the government filed a motion to dismiss the suit. The government contends that the constitutional issues raised by this massive law are not ripe, and that none of plaintiffs have standing to raise them.

Constitutional litigation, however, is not a matter of closing the barn door after the horses have bolted and rampaged the town. We believe that the issues raised in this case are ripe, and that plaintiffs are entitled to adjudicate them. And our basis for saying this will be fully set out in our response to the government’s motion.

The sad news of Jack Calfee’s death came out of the blue yesterday morning.

I first met Jack about two decades ago. FDA reform had not yet become a hot topic, but it soon would be, and then several years later it would go into reverse after the drug recall overreactions, and now it’s emerging again as a serious issue. Through it all, I found Jack’s writing and advice to be invariably useful. The same was true of his older work on tobacco and advertising regulation, which I continue to use to this day. And because Jack himself was so invariably cheerful and personable, I never hesitated to pester him with out-of-the-blue requests for information that I figured he’d have at his fingertips. And usually he did.

His death is a terrible loss. I’m glad to have known him, and I know I’ll keep using his work — even if, sadly, I won’t be using his phone number.

Image credit: dellacalfee’s flickr photostream.

Today is National Donut Day.

Ordinarily, this would be just another cute calendar event.  But nowadays we’re bombarded by government proposals on obesity and so-called nutritional reform.  The most recent manifestation of this is Michelle Obama’s White House Task Force on Childhood Obesity, which last month released a massive report with recommendations ranging from prenatal care programs to increased support for breastfeeding to soda taxes to community planning.

Like countless other government reports, it prominently portrays obesity as a crisis; only inside the report do you find the admission that childhood obesity rates have shown “no significant increase in recent years.” (Page 4)

So how should the conscientious citizen respond to this on National Donut Day?  I say, by eating two donuts—one for himself, and one as an act of civil disobedience.

Bon appétit.

The EPA whistleblower saga took a new turn this week with a report that EPA was considering shutting down the agency unit in which Dr. Alan Carlin works.  Dr. Carlin is the senior EPA analyst who authored a 100-page study last March, which severely criticized the scientific basis for the agency’s position on global warming.  CEI broke the story in late June, when it unveiled a series of emails to Dr. Carlin from his boss, stating that his study would not be disclosed, and that Dr. Carlin was to stop working on global warming issues, because criticizing EPA’s position would only cause trouble.

Dr. Carlin works in EPA’s National Center for Environmental Economics (NCEE), whose function is, in its words, “analyzing the economic and health impacts of environmental regulations and policies, and … informing important policy decisions with sound economics and other sciences.”  EPA has long been criticized for the tunnel-vision, cost-be-damned nature of many of its policies.  (See, for example, Supreme Court Justice Stephen Breyer’s 1995 book, Breaking the Vicious Circle: Toward Effective Risk Regulation, written before he joined the court.)  Economists are the most likely professionals within EPA to examine the real-world effects of its policies.  For that reason, the NCEE is potentially a major restraining force on the agency’s out-of-this-world regulatory ambitions.  Wouldn’t it be great for EPA to get this office out of the way?

Hopefully, the publicity and scrutiny that Dr. Carlin’s report has received since it became public will carry over to EPA’s plans for NCEE, and this agency, with its hollow commitment to scientific integrity and transparency, won’t get its wish.

President Obama unveiled Tuesday a plan to sharply increase federal gas mileage rules for vehicles sold in the United States, eventually bringing the requirement up to an average of 35.5 miles per gallon. Unfortunately, these rules – known as the Corporate Average Fuel Economy (CAFE) standards – have the deadly effect of causing new cars to be lighter, smaller and less crashworthy.

CAFE is among the deadliest government regulations we have, and with today’s announcement it’s going to get even deadlier. It kills consumers by reducing vehicle size, and now it may well kill car companies by forcing them to produce cars that consumers don’t want. The only redeeming aspect of the President’s announcement is that there’ll be only one standard imposed on the industry, rather both national and California standards. But that just means carmakers will have one noose around their necks instead of two.

A 2002 National Research Council study found that the federal CAFE standards contributed to about 2,000 deaths per year through their restrictions on car size and weight. An increase in the severity of the rules will only raise that death toll. Shockingly, the federal agency tasked with making Americans safer on the road – the National Highway Traffic Safety Administration – has refused to acknowledge this fact, even after being overturned by a federal court for ignoring the issue.

As bad as CAFE is, it’s an even more ominous sign that the National Highway Traffic Safety Administration is being joined in this initiative by the Environmental Protection Agency. Longtime observers of the EPA know that while the agency’s mission is to protect human health and the environment, it’s usually not in that order.

In addition to being sold as a global warming measure, the tightening of CAFE standards is, even less convincingly, being promoted as a boon for economic growth. Advocates have claimed that more fuel efficient cars are the future of the auto industry, yet have not explained why this should require government mandates.

President Obama today announced that he is pressuring the Department of Energy (DoE) to speed up some long-delayed efficiency standards for appliances.  His move is being applauded by environmentalists—no surprise there.  And DoE itself will almost certainly proclaim that the new standards will give us better appliances in the future; they might cost more, but they’ll supposedly save us money in the long run.

Don’t believe it.  Here are some examples of how DoE efficiency mandates have produced, or will produce, fiascoes rather than progress:

  • In 2001, Consumer Reports found that high-efficiency dishwashers equipped with dirt-sensors were actually the least efficient of all dishwasher models.  This means that consumers who purchased them, perhaps in reliance on the government’s Energy Star program, were actually hurt twice-first when they bought the high-priced models, and then each time they ran them.

(By the way, don’t think that Consumer Reports opposes these mandates; it favors them!  But that’s a topic for another day.)

  • Current DoE standards for light bulbs will soon result in a ban on incandescent bulbs, even though many people prefer incandescent bulbs and even though a “Great Lightbulb Exchange” in one town showed no reduction in electricity use when people switched to fluorescents.  (Evidently, folks kept their lights on longer.)

Remember—if higher-efficiency appliances are really better, then we don’t need laws to force them on us.  And if there are such laws, then those appliances are probably lousy.

Perhaps some consumers realize this and will quickly purchase current appliance models before they’re replaced by the “new, improved” versions.  Could this be a White House economic stimulus plan in disguise?

Nah.

Secretary of State Hillary Clinton reportedly declared “There is a great exhalation of breath going on in the world as people express their appreciation for the new direction that’s being set and the team that is put together by the president.”  That’s a cute contrast to President Bill Clinton’s claim that he “didn’t inhale.” Different context, perhaps, but it is change.