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Dictatorship out of Thin Air

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FEDERAL ENVIRONMENTAL LAWS turn bureaucrats into dictators who need not care a whit about public health. Instead, federal agencies blindly pursue both power and publicity. The result is one absurdity after another — and scant attention for the real health threats that Americans face.

On July 12, 1999, the Justice Department announced that it was suing Toyota for $58 billion because of alleged violations in the emission-control system installed in late-model autos. This was the largest penalty ever sought in a federal regulatory proceeding and would have been the equivalent of confiscating all of the Toyota factories in the world. The Feds sought a penalty of $27,500 for hypothetical violations on each of more than two million cars. EPA Chief Carol Browner harrumphed,

Today’s action shows this administration’s commitment to ensure that companies will not profit from polluting and that the public health will be protected.

What was Toyota’s crime? The “Check Engine” light on the dashboards of late-model Lexuses and Toyotas did not illuminate often enough. Toyota had the highest-rated in-use emissions-control systems of any major automaker. EPA had no evidence that fuel vapors were actually leaking. Instead, EPA wanted Toyota to do a massive recall of millions of vehicles to modify an emissions-control system that the Feds had formally approved a few years earlier.

Under the 1990 amendments to the Clean Air Act, automakers were required to get EPA approval for their catalytic converters and emissions-control maintenance systems. All major manufacturers complied. But beginning in 1997, EPA began going back and demanding that automakers pay fines for violations of rules that did not exist until the EPA made them up a few weeks before issuing its demands. Honda and Ford rolled over in 1998, paying multimillion-dollar fines and agreeing to recalls.

The issue in the Toyota case was more heresy than public health — the heresy that Toyota refused to kowtow to EPA demands. Toyota estimated that, in a worst-case scenario, the total amount of hydrocarbon evaporation from all its cars would not exceed the amount of hydrocarbons that are emitted from painting the exterior of a dozen houses.

The Justice Department threatened to destroy one of the world’s largest carmakers because of an arcane retroactive dispute over hypothetical trace amounts of possible pollutants.

In the week before filing the lawsuit, the Justice Department offered to settle the charges against Toyota if the company would agree to pay a roughly $100 million fine and recall the vehicles to modify their emissions-control systems.

The difference between the $100 million settlement offer and the $58 billion penalty sought was the precise measure of federal browbeating and regulatory extortion.

The EPA had approved Toyota’s emission diagnostics system in 1995. Holman Jenkins noted in the Wall Street Journal,

Toyota’s crime, based on 1997 tests of fewer than a dozen rental cars and cars owned by employees of the California Air Resources Board, was to have a system that did not shriek alarm at every loose gas cap or other momentary escape of fuel vapors.

The EPA piled on to demand that Toyota recall more than two million cars sold in other states.

The changes that EPA demanded would have greatly increased the number of false positive alerts in the engine-maintenance light, needlessly hassling hundreds of thousands of irate consumers who would have had to return with their car to the dealer. On the bright side, the change would allow bureaucrats to pretend that they deserved an “outstanding” rating in their next semiannual performance evaluation.

The charges by the California Air Resources Board were heard by administrative law judge Jaime Roman, who concluded in a February 25, 2000, ruling that “there are no incremental or excess emissions from the Toyota recall-class vehicles.” The judge found that the “over-design” of the emissions-control systems actually meant that Toyotas and Lexuses performed better than California law required. The acquittal in a California court had no influence on the Justice Department’s pursuit of Toyota, even though the factual basis for the federal suit collapsed.

Unfortunately, this defeat of environmental bureaucrats received little or no publicity. As a result, the Clinton administration had free rein to choose its next corporate target — issue new volleys of charges which most newspapers would report as the word of God — and continue to extort more money and submission from the companies it often slandered.

Clean Air Act tyranny

The torpedo fired at Toyota exemplified federal absolutism in enforcing the Clean Air Act. Shortly after the 1996 presidential election, EPA announced plans to impose entirely new standards for ozone and fine-particulate emissions. Any state or county with air not as pure as the new standards demanded could lose its federal highway funds and be required to radically curtail factory operations and criminalize backyard barbecues.

Browner promised that the new rules would cost less than $10 billion a year. But Clinton’s Council of Economic Advisers estimated that the rules could cost $60 billion a year, and economists at George Mason University’s Center for the Study of Public Choice estimated that compliance with the new regs could cost $380 billion per year.

Surprisingly, the new regs were expected — even by EPA’s own Clean Air Science Advisory Committee — to have little or no health benefit. The new regs were based largely on research done for EPA by Harvard professors. However, the EPA refused to make public the information on which it based the new standards for human exposure.

EPA’s actions were so extreme that even federal judges sat up and took notice. In May 1999, a federal appeals court struck down EPA’s new regulations as “an unconstitutional delegation of legislative power…. What EPA lacks is any determinate criterion for drawing lines.” The court noted that EPA was “free to pick any [pollution standard] between zero and a hair below the concentrations yielding London’s Killer Fog of 1952.” EPA chief Browner denounced the appeals court decision as “one of the most bizarre and extreme decisions in the annals of environmental jurisprudence.”

In the debate over the new Clean Air regs, Clinton pushed the hottest button available. In a May 1, 1999, radio address, he declared, “We’ve set the toughest standards in decades for smog and soot, which will prevent millions of cases of childhood asthma.” Clinton’s claim was ludicrous: even EPA’s own experts believed that the new standards would do little to reduce the number of asthma cases. Hitting a similar theme, EPA’s Browner, shortly after she announced the new Clean Air Act standards, told a children’s health conference, “When it comes to protecting our kids, I will not be swayed.”

The FDA joins in

But EPA’s affection for children was like a struggling asthmatic’s breathing — sporadic.

On March 6, 1997, the Food and Drug Administration (FDA) announced that, in collaboration with the EPA, it planned to ban the inhalers that 30 million Americans rely on to protect their daily breath.

The EPA was concerned that, because the inhalers contained trace amounts of chlorofluorocarbons (CFCs), they contributed to greenhouse gas emissions. As soon as a single non-CFC inhaler got FDA approval, the Clinton administration started the process to outlaw the 42 types of inhalers widely used in this country. (Many different inhalers are used because different people and different illnesses require different methods of treatment.)

The FDA-EPA proposal generated nearly 10,000 negative responses from medical professionals and others. Health and Human Services Secretary Donna Shalala declared that the proposal “would be more than dangerous.”

Former Surgeon General C. Everett Koop wrote that there is “no comparison between the infinitesimal improvement in ozone depletion that would result from the FDA’s ban and the direct impact of forced elimination of medications on 14 million American asthmatics.”

Ben Lieberman of the Competitive Enterprise Institute noted,

Numerous medical societies raised concerns that the wide variety of CFC inhalers currently in use will be replaced with a handful of unproven substitutes that may be inadequate for some patients.

But banning CFC inhalers would have given Clinton administration officials new bragging rights at international environmental conclaves. (The Clinton administration downshifted on this initiative after the backlash.)

The ethanol crusade

The only thing that Clinton seemed to care about more than clean air was campaign contributions and political posturing. His ethanol policy knowingly sacrificed air quality so that he could continue the masquerade that ethanol is the agricultural equivalent of holy water.

Clinton’s EPA issued a special waiver for the use of ethanol in gasoline — despite the environmental harm it would cause. The EPA waiver for ethanol’s use in gasoline was the equivalent of allowing city trash trucks to drop as much trash on the streets as they pick up from the curbsides and to double-bill their customers at the same time. Environmentalists were outraged. As the National Journal noted,

Environmental activists cite a recent Energy Department study suggesting that the EPA rule could lead to a slight increase in pollution because of ethanol’s volatility. And some state environmental officials testified at congressional hearings last spring that the mandate could worsen air quality and contribute to an increase in greenhouse gas emissions.

Clinton ignored the criticism. However, on April 28, 1995, a federal appeals court zapped the mandate, noting,

EPA admits that the ethanol rule will not give additional emission reductions for … toxics … and has even conceded that the use of ethanol might possibly make air quality worse.

The Clinton administration should have taught Americans to be far more skeptical about people who announce that “I’m from the government and I’m here to help the environment.” It remains to be seen how much the Bush administration learned from the Clinton follies.

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    James Bovard serves as policy advisor to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.