Hans Bader

Supreme Court Allows Challenge to EPA Power Grab, Cites CEI Brief in Sackett v. EPA; But Property Rights Still In Jeopardy

by Hans Bader on March 22, 2012

in Blog, Politics

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In recent years, the EPA has sought to block land from being used by claiming that vast tracts of seemingly dry land are actually “wetlands.”  The Clean Water Act gives it the power to regulate “waters of the United States.”  The EPA has interpreted that expansively to effectively mean “moistures of the United States,” treating perfectly ordinarily land as a “wetland” simply because water happens to occasionally flow downhill from it into a ditch or creek.  The four liberal Supreme Court justices largely bought this argument in the 2006 Rapanos case, so the Supreme Court is just one vote away from accepting this interpretation, which would render much of America a restricted “wetland” and financially ruin countless families.  Thus, property rights in America are hanging by a thread.

But yesterday, the flickering flame of property rights temporarily grew brighter. Rejecting the Obama Administration’s arguments, the Supreme Court held that EPA “compliance orders” restricting land use can be challenged in court if they are arbitrary and capricious — for example, if they are based on an erroneous bureaucratic interpretation of what a “wetland” is, that results in dry land improperly being declared an unusable wetland. In his concurring opinion, Justice Samuel Alito explained why such judicial review is essential: the EPA uses vague, inconsistent standards when it declares seemingly-dry land to be a wetland. As Justice Alito pointed out, “far from providing clarity and predictabil­ity, the agency’s latest informal guidance advises property owners that many jurisdictional determinations concern­ing wetlands can only be made on a case-by-case basis by EPA field staff. See Brief for Competitive Enterprise Institute as Amicus Curiae 7–13.”  (Justice Alito was relying on an amicus brief submitted on behalf of a Washington think-tank, the Competitive Enterprise Institute (CEI), by environmental lawyer Theodore Garrett of Covington & Burling).

The E.P.A. has a practice of issuing “compliance orders” to property owners telling them to stop using their land and restore it to its prior condition, under penalty of $75,000 a day in fines, and declaring in such orders that such land is a federally protected wetland. It then waits months or years before actually suing the property owner to collect the fines, which accrue daily, potentially adding up to millions in fines. But in the meantime, it insists that the property owners can’t challenge its claim that their property is a non-usable wetland in court. If they want to take issue with its claim that their property is a “wetland,” they have to wait until the EPA sues them later on to collect the fines, after they’ve racked up potentially millions in fines under the compliance order.  The order doubles the fines that a judge can impose on the property owners when the EPA ultimately sues them, although if the judge later finds the land was not in fact a “wetland,” he can refuse to impose the fines. (In the absence of a “compliance order,” the maximum fine for developing a wetland is $37,500 a day; the compliance order adds another $37,500 per day, bringing the total to $75,000 per day.  Federal law has a broad and counterintuitive notion of what is a “wetland”: for example, in one court ruling, the government was allowed to declare a property to be a “wetland” even though it appeared dry, since water occasionally passed from it into a roadside ditch that in turn flowed into another ditch that flowed into a creek).

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Energy Secretary Gives Himself Stellar Grade of A- for 85% Failure Rate

by Hans Bader on March 15, 2012

in Blog, Politics

Despite the hundreds of millions of dollars lost in the Solyndra scandal, Energy Secretary Steven Chu gave himself “an A-” when he “testified before Congress after a series of bankruptcies from companies floated by green-tech stimulus loans” and was asked what “grade he would give himself as a steward of public funds.”  But it turns out that Chu’s Energy Department was much more reckless in its lending decisions than the private lenders that the Obama Administration has blamed for the financial crisis (even as the Administration has expanded the role of the government-sponsored mortgage giants and federal affordable-housing mandates that helped spawn the housing crisis), manifested in “an 85 percent failure rate on its process check.”  As Ed Morrissey notes, a recent report from the Government Accountability Office (GAO)

looked at the handling of $30 billion outstanding in loan guarantees and future commitments and discovered that the DOE rarely follows its own written procedures for vetting and auditing applications.  In fact, in many cases, the Loan Guarantee Program (LGP) couldn’t even find the data managers needed to administer the loans properly . .

In the case of Solyndra, the Obama administration ended up overriding the expressed concerns of DOE auditors to grant the solar-tech firm $535 million in taxpayer guarantees, all of which disappeared in the company’s collapse.  In almost every case study investigated by the GAO, important steps got skipped in the reviews that determined whether loan applications would be granted.  In other cases, the documentation was so poor that the GAO couldn’t figure out what the LGP did . . . the process had at least an 85 percent failure rate on its process check.  . .

With $30 billion in taxpayer money at risk, the DOE under Steven Chu didn’t bother to conduct the reviews it claimed it would on applications for loan guarantees, didn’t keep records of what reviews they did accomplish, and signed off on loans with incomplete documentation and inadequate oversight of the risk.  The result — perhaps $6.5 billion immediately at risk, according to CBS, and possibly most of the $30 billion. . . Political connections existed with Solyndra specifically, but the DOE may have felt political pressure to sign off on loans quickly in order to get Obama’s stimulus started. . . the DOE under Chu has been anything but a careful steward of taxpayer money.

As Morrissey notes, Obama has also fostered financial irresponsibility by expanding federal bailouts “to include the real-estate speculators that helped inflate the housing bubble.”  (The speculator bailouts are being done partly with taxpayer money, and partly at the expense of innocent mortgage investors who have never been accused of any wrongdoing). The Administration has also forced some banks to make risky loans to borrowers of certain races, potentially contributing to future bank failures and bailouts.

As The Washington Post noted earlier, energy programs have been “infused with politics at every level” during the Obama administration. It hastily approved subsidies for Solyndra, whose executives are now pleading the 5th Amendment, despite obvious danger signs and warnings about the company’s likely collapse. (Later, federal officials successfully pressured Solyndra to delay its announcement about upcoming layoffs until just after the 2010 election, to avoid embarrassing the Obama administration.)  CBS News reported that there were 11 more Solyndras in the Obama Administration’s green-energy programs.

The Obama Administration has used green-jobs money from the stimulus package to outsource American jobs to countries like China: “Despite all the talk of green jobs, the overwhelming majority of stimulus money spent on wind power has gone to foreign companies, according to a new report by the Investigative Reporting Workshop at the American University’s School of Communication in Washington, D.C.” As the Investigative Reporting Workshop noted, “79 percent” of all green-jobs funding “went to companies based overseas . . . In fact, the largest grant made under the program so far, a $178 million payment on Dec. 29, went to Babcock & Brown, a bankrupt Australian company.” This just one of many ways in which the Obama administration has used taxpayer money to outsource American jobs to foreign countries.

Obama, the Outsourcer-in-Chief

by Hans Bader on January 24, 2012

in Blog, Politics

Ironically, in his State of the Union Address tonight, President Obama railed against “outsourcing.”  That was funny, because he has spent billions of tax dollars on subsidizing the outsourcing of American jobs to foreign countries.

“79 percent” of all green-jobs funding in Obama’s $800 billion stimulus package went to foreign companies, with the largest payment going to a bankrupt Australian company.  For example, the Obama Administration spent $1.6 billion on Chinese and other foreign wind power. The practical effect of those subsidies was to outsource American jobs.  ABC News reported on the subsidies for Chinese wind turbines contained in the stimulus package:

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Five Million Missing Jobs Haunt Obama’s State of the Union Address

by Hans Bader on January 23, 2012

in Blog, Politics

In his upcoming State of the Union Address, President Obama will push for more green-jobs subsidies at taxpayer expense in the name of job creation: “With a Solyndra-scandal-be-damned attitude, President Obama is expected to revive his push for new green fuel sources in Tuesday’s State of the Union address, claiming that they will boost jobs.”  But these impractical proposals are haunted by the utter failure of Obama’s existing green-energy programs to produce economically-viable jobs or fuel.

There are only 140,000 jobs in the whole renewable-energy sector, which illustrates the absurdity of Obama’s unrealistic 2008 promise “to create 5 million new green jobs.” Most of America’s existing green jobs predate the Obama Administration, which did not create them: “from 2003-2010, the rate of growth for clean jobs was 3.4 percent.”  By contrast, Obama wiped out 20,000 jobs recently just by blocking the Keystone XL Pipeline, and recent EPA rules will wipe out at least 800,000 more.

More job losses are yet to come: in 2008, President Obama admitted that under his greenhouse gas regulations, people’s utility bills would “skyrocket,” and coal-fired power plants would go “bankrupt.”  That will wipe out vast numbers of jobs in the energy sector.

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CBS: 11 More Solyndras in Obama Green Energy Program

by Hans Bader on January 14, 2012

in Blog, Politics

CBS News is reporting that there are 11 more Solyndras in the Obama Administration’s green-energy program:

CBS News counted 12 clean energy companies that are having trouble after collectively being approved for more than $6.5 billion in federal assistance. Five have filed for bankruptcy: The junk bond-rated Beacon, Evergreen Solar, SpectraWatt, AES’ subsidiary Eastern Energy and Solyndra. . .Standard and Poor’s had given the [Beacon] project a rating of ‘CCC-plus.’

(A CCC rating is also shared by Greece, a virtually bankrupt nation embroiled in a massive debt crisis).

A liberal Congress must share the blame for this fiasco, since the massive $800 billion stimulus package it passed in 2009 funded these boondoggles. As a Solyndra stakeholder exulted, “there’s never been more money shoved out the government’s door in world history.”  But as the Washington Post noted, energy programs were “infused with politics at every level” under Obama.  His Administration hastily approved subsidies for Solyndra, whose executives are now pleading the 5th Amendment, despite obvious danger signs and warnings about the company’s likely collapse. (Later, federal officials successfully pressured Solyndra to delay its announcement about upcoming layoffs until just after the 2010 election, to avoid embarrassing the Obama Administration).

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Occupy Protester: Humanity’s “Existence Is Bad For the Planet”

by Hans Bader on January 2, 2012

in Blog, Politics, Science

An Occupy Orange County protester decries mankind’s existence: “Our very existence is bad for the planet.”  “Another protester told” an interviewer “that human beings are parasites,” adding that “if you take humanity off this planet, the planet would explode with prosperity.”

In May, a group of Nobel laureates and others gathered to put humanity on trial, to decide whether humanity had breached its relations with the planet.  Representing “the planet” was none other than Obama science and technology advisor Mario Molina.

Delegates to a U.N. climate change conference signed a petition to ban water, which the petition referred to using an obvious chemical name for water that anyone who has studied science or taken a chemistry course would logically recognize (as “dihydrogen monoxide”).  The petition cited the fact that water can erode rock or metal over time.

The Washington Post gave a thumbs-down to the billions of dollars dumped into electric vehicles by the Obama Administration, noting that these electric vehicles are not a “solution to America’s dependence on foreign oil, or to global warming, in the near future. They simply pose too many issues of price and practicality to attract a large segment of the car-buying public.”  It pointed out that subsidies for electric vehicles are “trickle-down economics” that benefit a wealthy few at the expense of taxpayers.  (Each Chevy Volt costs taxpayers up to $250,000).

The Post also criticized the costly ethanol subsidies backed by the Obama Administration, noting that a recently-expired ethanol tax credit “badly distorted the global grain market, artificially raised the cost of agricultural land and did almost nothing to curb greenhouse gas emissions. A federal law requiring the use of 36 billion gallons of ethanol for fuel by 2022 still props up the industry, but the tax credit’s expiration is a victory for common sense just the same.”  The Obama Administration supports ethanol subsidies, even though they have a history of  spawning famines and food riots overseas. It has forced up the ethanol content of gasoline through EPA regulations, even though ethanol production results in deforestation, soil erosion, and water pollution.  Back in 2008, leading environmentalists lamented the devastating impact of ethanol subsidies on the global environment and the world’s poor in the Washington Post. They noted that thanks to ethanol mandates, “deadly food riots” had already “broken out in dozens of nations,” such as “Haiti and Egypt.”

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Washington Post: Obama Energy Programs “Infused With Politics at Every Level”

by Hans Bader on December 26, 2011

in Blog, Politics, Small business

Even the liberal Washington Post, which hasn’t endorsed a Republican for President since 1952, seems to be souring on the Obama Administration’s failed energy programs, saying they were “infused with politics at every level.” As it noted in discussing the Solyndra scandal: “Obama’s green-technology program was infused with politics at every level, The Washington Post found in an analysis of thousands of memos, company records and internal ­e-mails. Political considerations were raised repeatedly by company investors, Energy Department bureaucrats and White House officials. The records, some previously unreported, show that when warned that financial disaster might lie ahead, the administration remained steadfast in its support for Solyndra,” which was owned by major Obama backers, like George Kaiser.

As law professor Glenn Harlan Reynolds notes, “all the ‘stimulus’ and ‘green energy’ stuff was never anything but a program to put taxpayer money into the hands of cronies and supporters.”

The Obama Administration hastily approved the  taxpayer subsidies for Solyndra despite obvious danger signs and warnings from accountants about the company’s likely collapse, the misgivings of agency officials, and the company’s mismanagement and lousy-quality products. (Solyndra executives are now pleading the 5th Amendment to avoid disclosing incriminating information.) The Obama administration was determined to shovel taxpayer money to its cronies as fast as it could. As an Obama fundraiser and Solyndra stakeholder exulted,  “there’s never been more money shoved out of the government’s door in world history and probably never will be again than in the last few months and the next 18 months. And our selfish parochial goal is to get as much of it . . . as we possibly can.”  “At the time Solyndra received its grant, Vice President Joe Biden declared that the Solyndra investment is ‘exactly what the [the stimulus package] is all about.’”

While diverting taxpayer money away from productive and efficient businesses to corporate-welfare recipients controlled by political cronies, the Obama Administration is busy wiping out jobs through thousands of pages of counterproductive regulations.  Some of these new regulations are designed to spawn lawsuits that will enrich trial lawyers at businesses’  and consumers’ expense.

Obama appointees at the EEOC are busy harassing businesses that hire and fire based on merit, thus discouraging employers from hiring or expanding operations, and the EEOC is bringing costly, unjustified lawsuits against businesses.  The 2010 healthcare law imposes financial burdens — some of them large, and others difficult to calculate — on the nation’s employers, resulting in some business owners deciding not to expand or hire new employees.

Many businesses are also suffering from the effects of the Dodd-Frank financial “reform” law, a 2,315 page monstrosity that makes it harder for small businesses to obtain credit, and also outsources and wipes out jobs in the financial sector. Even one-time Obama supporters in the business community have grown disenchanted: Democratic businessman Steve Wynn called Obama“the greatest wet blanket to business and progress and job creation in my lifetime,” saying that “the business community in this country is frightened to death of the weird political philosophy of the President of the United States. And until he’s gone, everybody’s going to be sitting on their thumbs.”

The Obama administration has sought to temporarily pump up the economy with stimulus spending paid for with massive deficits, but as the Congressional Budget Office has noted, the stimulus package will actually shrink the economy in the long run, so it will not be able to offset the economic drag resulting from all of the Obama administration’s new regulations and red tape.

Obama Promotes More Failed Green-Jobs Schemes, More Job-Killing Regulations

by Hans Bader on September 2, 2011

in Blog, Small business

No net jobs were created in America last month (even as the people needing jobs increased), as the Obama Administration drafted a host of new job-killing regulations and threatened costly lawsuits against employers.  But rather than rethink his failed economic policies, Obama is planning to spend billions more on green-jobs fantasies and boondoggles, in his upcoming “stimulus” proposals.  Forbes describes some of the past green-jobs fiascos promoted by the Obama Administration that cost taxpayers billions while creating no lasting jobs:

even as the president claims he is now laser-focused on job creation, he wants the public to forget all of his previous taxpayer-funded efforts to create those “green jobs” of the future, many of which have been abject failures. Like the $20 million federal grant given to Seattle to weatherize houses.  The promise?  To create “2,000 living-wage jobs in Seattle and retrofitting 2,000 homes in poorer neighborhoods.” . . . The reality a year later: “only three homes had been retrofitted and just 14 new jobs have emerged from the program.”

The much-hyped company Solyndra, which manufactures—um, make that “manufactured”—solar technology, has closed its doors and filed for Chapter 11 bankruptcy.  Only a year ago Obama gave it $535 million in low-cost loan guarantees, touting the company “as a prime example of how green technology could deliver jobs,” according to an NBC-affiliate report.  Now another 1,000 people have become unemployed victims of Obama’s job-creating skills.  And taxpayers have become victims of another half-billion dollars sucked down the Obama job-creating drain. . .

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Obama Thwarts Debt-Ceiling Deal by Clinging to Wasteful Green-Jobs and Stimulus Spending

by Hans Bader on July 14, 2011

in Blog, Features, Politics

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President Obama is refusing accept deals that would raise the federal debt ceiling because they would require him to accept cuts in wasteful green-jobs and rail boondoggles and stimulus spending:   “The president has made a bipartisan agreement even more difficult by declaring certain spending off-limits to cuts. Mr. Obama’s ‘untouchable’ list includes his $1 trillion health-care reform, $128 billion in unspent stimulus funds, education and training outlays, his $53 billion high-speed rail proposal, spending on ‘green’ jobs and student loans, and virtually any structural changes to entitlements except further squeezing payments to doctors, hospitals and health-care professionals.”  If the debt ceiling is not raised, America’s credit rating may be downgraded, leading to higher interest payments on the debt in the future.

Obama’s refusal to reconsider green-jobs spending is unfortunate given how such spending has backfired, effectively outsourcing thousands of American jobs at taxpayer expense.  ABC News reports on the subsidies for Chinese wind turbines contained in the stimulus package:

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EPA Gives Millions to Green Groups That Sue It; Massive Funding Advantage for Enviro Groups and Green Welfare

by Hans Bader on July 10, 2011

in Blog, Features, Politics

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The EPA gives millions to the environmental groups that sue it.  “When the EPA settles or loses those suits, it then awards the groups millions more in attorneys’ fees,” notes legal commentator Walter Olson.  “‘The EPA isn’t harmed by these suits,’ said Jeffrey Holmstead, who was an EPA official during the Bush administration. ‘Often the suits involve things the EPA wants to do anyway. By inviting a lawsuit and then signing a consent decree, the agency gets legal cover from political heat.’ Holmstead called this kind of litigation ‘sweetheart suits.’”

The EPA gave millions to groups that sued it to get it to regulate greenhouse gases, like the Environmental Defense Fund and Natural Resources Defense Council.  Those groups brought a lawsuit that led to the Supreme Court’s 5-to-4 decision in Massachusetts v. EPA (2007), which vastly expanded the EPA’s jurisdiction.  More recently, they sued to compel the EPA to issue greenhouse gas “performance standards” for power plants and refineries. In a recent settlement, the EPA agreed to do just that.  Critics “said the costly settlement was ‘concocted in secret’” and that other lawsuits by EPA grantees resulted in collusive settlements that cost the economy billions, increased the EPA’s powers, and gave environmental groups things that they were unlikely to win in any court ruling.

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