Zadekpedia2017-05-21 · Guest: Ted Hadzi-Antich (Texas Public Policy Foundation) · 5:50
Filed under: Federalism and exit · Regulation and the administrative state
Fifty year legacy of the Clean Air Act
Bob Zadek and guest Ted Hadzi-Antich discuss the 50-year legacy of the Clean Air Act. They explore the original intent of the legislation, the concept of “cooperative federalism,” and how the relationship between the EPA and states like California has evolved over decades of environmental regulation.
Topics: Clean Air Act, EPA, Environmental Regulation, Cooperative Federalism, California, Air Quality, Scott Pruitt
Speakers: Bob Zadek, Ted Hadzi-Antich
Introduction to the Clean Air Act [00:25]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the only live libertarian talk radio show on the air all weekend. I am, as always, your host, Bob Zadek. Thanks so much for listening and a good morning to all of my newly acquired friends in the Sacramento, California area and in Seattle, where we are now broadcast live on AM radio. We are, of course, broadcast live throughout the whole country courtesy of streaming on the web. So thank you so much Seattle, Sacramento, the Bay Area, and the rest of the country.
50 years ago to the year, as they say, the Clean Air Act—a dramatic, revolutionary, game-changing statute—was enacted by Congress to clean the air. There isn’t much dispute that the air was pretty rancid and foul, at least in parts of the country. The problem was nationwide, and probably not many people dispute the fact that legislation was perhaps needed—perhaps.
How has the Clean Air Act performed over the next 50 years? Has its purpose been perverted, captured, changed? How have the bureaucrats performed at EPA, a somewhat reviled, at least in some circles, federal agency? How has the EPA performed and what is the prospect for future performance? And how will its performance change with its new administrator, Scott Pruitt, appointed by President Trump? Scott Pruitt famously said his goal will be to more or less disband or eliminate the agency itself. How is that for agency morale, to have your boss want to fire everybody?
To help us understand these issues, I’m happy to welcome this morning Ted Hadzi-Antich. Ted is a litigation rockstar and a “no modifier” rockstar. More about the second part of my introduction later on in the show, but please stay tuned to learn about Ted’s real rockstar status. Ted is a litigator with the Texas Public Policy Foundation, and Ted has made a very happy career out of litigating on the issues of clean air in general, and specifically litigating against the EPA. This morning we’re going to discuss several important, very important, EPA-related issues. One involves the status of California as a what I will call “superstate” insofar as regulation of clean air is concerned—you’ll learn what I mean about that—and also about whether or not science has a role to play in the administration of the Clean Air Act and its progeny. Ted, thanks so much for joining us this morning.
Ted Hadzi-Antich: Great to be with you, Bob.
The Origins of Air Quality Regulation [03:31]
Bob Zadek: Now Ted, let’s just get the audience organized on some general principles. We have the Clean Air Act, which was enacted—well, there had been many somewhat sweeping bits of federal legislation, but the Clean Air Act enacted, I think, in 1967. It was a statute which I think was needed at the time, wasn’t it?
Ted Hadzi-Antich: It was. You know, a lot of folks like myself are old enough to remember in the 1960s, the air situation in many parts—not all, but many parts—of the country was pretty bad. And that really goes especially so for certain areas in California, primarily the Los Angeles Basin and the San Joaquin Valley. So the Clean Air Act really was enacted to deal with the growing air pollution issues throughout the country and especially in certain pockets.
Cooperative Federalism [04:40]
Bob Zadek: And the Clean Air Act has been identified as—the phrase I’ve seen is “an experiment in cooperative federalism.” Help us understand what cooperative federalism means in the context of the Clean Air Act as it was originally structured.
Ted Hadzi-Antich: So federalism, you know, as a general matter refers to the relationship between the federal government and the state government, and which aspects of law and regulation the feds are responsible for and which aspects the states are responsible for. And of course, the United States Constitution really enumerates the very limited powers of the federal government and, under the reserve clause, reserves to the states all other powers that are not specifically enumerated for the federal government. So what the Clean Air Act did in 1967 is coined this phrase of “cooperative federalism.”
Show prep notes
Bob’s own preparation for this episode.
(424) BOB-SHOW // (424) 262-7469
Notes: Pronunciation: Hod-zee Antic
Main topic is the trucking emissions case, but there is another story about the EPA’s broader power grab (no pun intended) that is increasing reliance on a national grid.
Planning Call: Friday 3:00pm PT, (cell)
Live Show: (land)
Show Notes:
Headline: How the EPA Violated the Clean Air Act
Ask a Californian what’s so special about the Golden State – you’ll hear about our beaches, our redwood forests, and our high tech and entertainment hubs. 30 years ago, you’d have heard about our smog. Today’s small business owners, however, will tell you about our “unique” environmental regulations. California’s emissions laws are the strictest in the nation, thanks to an exemption from the EPA’s Clean Air Act that allows special vehicle standards, as long as they’re at least as strict as federal standards. The Clean Air Act of 1970 requires the EPA to submit new rules to an expert oversight panel, which it failed to do for new recommendations by the California Air Resources Board. While the Air Resources Board may have once been needed to address a crisis, its new rules go too far (modern diesel engines emit far less exhaust than engines from even 15 years ago). Ted Hadzi-Antich is the senior attorney for the Texas Public Policy Foundation’s Center for the American Future, and is on the team challenging the EPA’s violation of the law. He stands for thousands of small businesses that would be devastated by the restrictions on diesel vehicles, while big corporations thrive based on their ability to comply. Ted joins the show to clear the air for us Californians, and to give an overview of the EPA’s regulatory overreach nationwide.
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Links
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How state’s air rules went too far - San Francisco Chronicle May 9, 2017, by Ted Hadzi-Antich
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Dalton Trucking, Inc., et al., Petitioners v. United States Environmental Protection Agency
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Texas Public Policy Foundation
Related Shows (Subscribe to the Podcast):
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The Supreme Court Has Spoken: The Unanimous Decision in U.S. Army Corp of Engineers v. Hawkes July 5, 2016, with Mark Miller of the Pacific Legal Foundation
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Environmentalism - The Libertarian Way December 26, 2011, with Dr. Mary Ruwart
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The Age of Unenlightenment September 20, 2009
[BIO]
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Ted Hadzi-Antich is the senior attorney in the Center for the American Future for the Texas Public Policy Foundation.
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He has served for 40 years as a lawyer in federal and state government, private practice, law teaching, in-house corporate counselling, and public interest advocacy.
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AV-rated lawyer, the highest honor awarded by one’s peers for excellence in legal practice and ethics.
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Member of the Bar in five states and numerous federal courts, including the United States Supreme Court.
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A musician and songwriter, Ted has served for almost a decade as a subdeacon in the Orthodox Church.
FIND HIS WORK AT:
- Texas Public Policy Foundation
On this Day in History (Skip)
Summary:
How state’s air rules went too far - San Francisco Chronicle May 9, 2017, by Ted Hadzi-Antich
Laws like these exacerbate the problem of corporatism, harm small businesses disproportionately:
“The California Air Resources Board issued its regulation ostensibly to address air pollution. In the process, the board ignored the deep economic and social adverse effects of the rule, which affects tens of thousands of vehicles used in industries as diverse as construction, air travel, landscaping, logging, ski resorts and public agencies. It will impact a warehouse with one diesel forklift, a local landscaper with a dozen lawnmowers, a county that maintains rural roads, and large firms operating hundreds of loaders, graders, scrapers and rollers. Small companies do not have the cash or credit required to comply with the stringent emissions standards and will be forced out of business, while larger companies will take over market share, thereby decreasing competition and increasing prices for all sorts of goods and services.”
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California is the only state that is permitted to deviate from those standards if it has “compelling and extraordinary conditions” that require air emissions standards differing from the federal ones. Congress gave California that flexibility because of the vast numbers of cars and trucks in the state coupled with the state’s unique topography and geography that captures air pollutants in certain localized areas, and the EPA has approved dozens of California motor-vehicle emissions standards that are substantially more stringent than the EPA’s.
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The problem is that the state’s Air Resources Board, in pursuing its hard-line agenda, has tightened emissions limitations on motor vehicles to such a draconian level that it is almost impossible for all but the largest and most well-heeled companies to comply. The EPA is complicit in this market-twisting process because it uniformly rubber stamps proposals for motor-vehicle emissions controls proffered by the state air board, regardless of need or cost. That violates EPA’s duty under the Clean Air Act to screen California standards before approving them.
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The petitioners in the case, Dalton Trucking vs. EPA, have joined together to say, “Enough is enough.” By any yardstick, the tight limitations in these regulations are not required to meet “compelling and extraordinary conditions.” This case sends a message to the EPA: You must comply with the law, just like everyone else.”
Other Links:
Trucking Case
Opinion Journal: Is EPA Above the Law? [VIDEO]
The question is whether EPA must comply with the law: a mandate to submit their proposed regulations to a blue ribbon panel known as the science advisory board.
For the first time in 30 years, they did not submit the diesel truck emissions regulations to the advisory board.
Stringent controls on new trucks and cars makes the cost of trucks and cars rise. Macroeconomic costs estimated at $1 trillion over the coming years. Microeconomic costs include layoffs and closures of firms that can’t pay the price.
California environmental lawsuit still up in the air | Northern California Record Feb. 2, 2017
The Clean Air Act of 1970 allows California to write its own environmental regulations provided they are as stringent as the federal ones. California must prove that conditions are so extraordinary that they can be mitigated only by regulations unique to the state.
The situation is not the same as it was in 1970:
“today’s diesel engine emit 99 percent less exhaust gases than what engines produced 15 years ago.”
The justification for the law is health effects, but the economic impact also affects health:
“California’s child poverty rate (26 percent) is the highest in the nation – we’re worse than Appalachia. There is a direct link between economic outcomes (not having a job) and health effects; it is statistically measurable, much more that the specious science used by ARB to throttle California industry at all levels under the guise of improving human health by their continually rulemaking. It would be nice if we ended up with leadership in Washington that recognizes we can have economic growth and a clean environment at the same time. I truly don’t believe anyone in Sacramento thinks that, even though politicians and bureaucrats often mouth those words.”
DALTON TRUCKING, INC., ET AL., PETITIONERS v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Case before the U.S. Court of Appeals, District of Columbia
Theodore Hadzi-Antich argued the cause for petitioners. With him on the joint briefs were M. Reed Hopper and Lawrence J. Joseph.
Petitioners are arguing the the 9th circuit is the appropriate venue for the case, while the EPA is arguing for the D.C. Circuit Court not to review its failure to put the new rules before the Blue Ribbon expert panel.
Section 209(e) of the Clean Air Act generally preempts states from adopting standards relating to the control of emissions from in-use nonroad diesel engines. See 42 U.S.C. § 7543(e)(1). California, however, may adopt emissions standards for in-use nonroad diesel engines if it applies for and receives a waiver of federal preemption from EPA.
In July 2007, the California Air Resources Board, California’s air pollution agency, approved regulations to reduce particulate matter and oxides of nitrogen emissions from in-use nonroad diesel engines (hereinafter “Nonroad Fleet Requirements”). As amended, the Nonroad Fleet Requirements apply to persons, businesses, or government agencies owning or operating in California in-use nonroad diesel engines with a maximum horsepower of 25 or greater.
Stall In Lawsuit Reveals The Distance Between California And Former Ally, EPA | KPBS
Where an Obama administration was fighting this lawsuit, keeping EPA allied with California, in the Trump administration, the EPA now sends this message to the diesel interests: Give us a little more time, we think you may be right.