Biden’s Green Agenda Meets Environmental Red Tape

“One test is unfolding in Nevada in a fight over a planned lithium mine and a rare desert wildflower. A mining company, ioneer Ltd., has proposed building a large-scale lithium-boron mine in western Nevada (the first of its kind in the United States) to supply materials for electric vehicle batteries, wind turbines, and other clean-energy technologies. If approved, the mine could quadruple domestic lithium production and help build 400,000 electric cars each year, according to the company’s estimates, helping to advance Biden’s goal “to win the EV market.”

But a rare plant may stop the project from breaking ground. The site is also home to Tiehm’s buckwheat, a pale yellow wildflower that is only found on a 10-acre patch of lithium-rich soil within the project area. Last year, the Center for Biological Diversity, a litigious environmental group, sued the U.S. Fish and Wildlife Service, demanding emergency protections for the buckwheat to block the mine. On Thursday, in response to a court order, the service proposed listing the buckwheat under the Endangered Species Act. The Biden administration now has until September 30 to issue a proposed rule to protect the plant, which could all but doom the lithium mine.

It’s a familiar story: A tangled web of environmental laws and regulations gives litigious groups ample opportunities to stall development projects or thwart them altogether. That strategy works well when environmentalists’ goal is to stop things from happening, but it’s likely to be a major obstacle to building the infrastructure and technological capacity to achieve Biden’s clean-energy vision, which will require many new mining operations, solar and wind farms, transmission lines, and other forms of development.”

Arbitrary THC Limits Could Wipe Out Much of the Cannabis Industry

“The marijuana in that pipe was quite different from the black-market stuff I had smoked during college, when I could go through a whole bowl without experiencing the same effect. From my perspective, the Colorado cannabis was better, delivering a more pleasant experience in exchange for less effort and less exposure to combustion products. In that sense, it was also healthier.

Many politicians, by contrast, view stronger marijuana as ipso facto worse. Unimpressed by the minimization of respiratory hazards, they focus on contentious claims about the psychological impact of potent pot: It is more addictive, they say, or more likely to trigger psychotic reactions. They therefore want to legally restrict the potency of cannabis products sold by state-licensed retailers, which they claim will protect public health and safety.”

“As long as consumers understand what they are getting, you might think, they can decide for themselves which products meet their tastes and preferences, and they can adjust their consumption accordingly: Just as drinkers tend to consume smaller volumes when they drink liquor than they do when they drink beer, cannabis consumers tend to stop when they achieve the effect they want, which means they take fewer puffs of stronger pot. But politicians who favor THC limits do not trust consumers to make those decisions.”

“Vermont is the only state with a legal cap on THC content. Recreational stores have not opened there yet, but when they do they will not be allowed to sell flower that exceeds 30 percent THC or concentrates that exceed 60 percent.

A proposed limit in Florida, where marijuana is legal only for medical use, is far more onerous. It also would cap the THC content of concentrates at 60 percent, but it would limit flower to 10 percent. A bill to that effect was approved by a state House committee on a party-line vote last month; a similar Senate bill has not advanced yet.”

“In Massachusetts, HD 2841 would likewise limit THC in flower to 10 percent”

“A Montana bill described as “probably dead” would establish a 15 percent cap for all cannabis products.

In Colorado, state Rep. Yadira Caraveo (D–Adams County) this year wrote a bill that would have imposed the same 15-percent rule but shelved it in response to the uproar it provoked.”

“Legislators who support such limits think potent pot appeals to many consumers, which is why they want to ban it. But if they are right, their proposals will invite a resurgence of the black market that legalization aims to displace.”

Voters back Joe Biden’s gun control plan. It’s not clear if the evidence does.

“The fundamental reality about the US gun problem is that it’s a function of how many guns Americans have. Heavily reducing that stockpile may be the only way to significantly reduce America’s out of control gun deaths”

“”Gun control policies that don’t confront the core issue — that America simply has too many guns — are doomed to merely nibble around the edges. Everywhere in the world, people get into arguments. Every country has residents who are dangerous to themselves or others because of mental illness. Every country has bigots and extremists. But here, it’s uniquely easy for a person to obtain a gun, letting otherwise tense but nonlethal conflicts escalate into deadly violence.””

“Roughly 39,000 Americans die from guns every year. Mass shootings draw attention to this problem, but everyday suicides and violent confrontations that unnecessarily escalate to homicide due to the easy availability of guns are the norm in the United States. If policymakers are serious about changing this, dramatically reducing the number of guns is the path forward.”

The Supreme Court’s coming war with Joe Biden, explained

“On February 9, 2016 — the last Tuesday of Scalia’s life — the Supreme Court handed down an unexpected order announcing a stay of the Environmental Protection Agency’s carbon emissions rules for many power plants. The vote was 5-4, along party lines, with Scalia joining his fellow conservatives in the majority.

The environmental regulations blocked by this order were commonly known as the Clean Power Plan, and they were the Obama administration’s most ambitious effort to fight climate change. Had the Clean Power Plan taken effect, the EPA predicted that by 2030 it would have reduced overall carbon dioxide emissions from utility power plants 32 percent from where they were in 2005.

But the Clean Power Plan never took effect. Though the Supreme Court’s order halting the plan was temporary, Donald Trump’s 2016 victory all but ensured that it would not be revived. Even if the Trump administration hadn’t replaced this Obama-era policy with a significantly weaker rule, the appointment of Neil Gorsuch to fill Scalia’s vacant seat signaled the Supreme Court would be highly likely to strike down the Clean Power Plan permanently if given the chance.

The problem for Democrats is that the legal defeat of the Clean Power Plan is likely not a one-off. This fight over the federal government’s power to address a slow-moving catastrophe is just one battle in a multi-front war over federal agencies’ power to regulate. As Stephen Bannon, then the White House’s chief strategist, told the Conservative Political Action Conference a month after Trump took office, one of the Trump administration’s primary goals would be “deconstruction of the administrative state.””

“It wasn’t always this way. In the late 1980s, Justice Scalia was one of the Court’s staunchest defenders of a strong administrative state. Presidents Ronald Reagan and George H.W. Bush delivered three landslide victories in a row to Republicans, and the GOP was at the apex of its ability to gain power the old-fashioned way — by winning elections.
So conservatives benefited from court decisions that gave the Reagan and Bush administrations broad leeway to set federal policy. Both administrations could use this leeway to deregulate.

But the right’s approach to federal agencies shifted drastically during the Obama administration. With the GOP’s grip on the presidency waning at the very same time that they had a firm hold on the judiciary, conservatives had an obvious interest in increasing the judiciary’s power to strike down new rules pushed by federal agencies.”

“Congress is a slow-moving body, and federal laws are difficult to amend. If, in the 1970s, Congress had commanded power plants to use the best emissions reduction technology that existed at the time, it could have potentially locked these plants into using obsolete tech that is vastly inferior to the technology available now. At a minimum, Congress would have struggled to stay on top of new developments and to update this law as new methods of reducing emissions were invented.

For this reason, Congress may also regulate businesses in a second way. It can pass a law that lays out a broad federal policy but leave the details of how to implement that policy up to a federal agency. Often, such delegation means giving that agency a fair amount of authority to determine how businesses operate, so long as the agency uses this authority to advance the policy goal enacted by Congress.”

“Ideally, laws like the Clean Air Act make complex lawmaking possible without having to sacrifice democratic accountability. Regulation allows our laws to be both democratic and dynamic. Such laws are democratic because the goals of federal policy — goals such as ensuring that power plants use the best emission reduction technology available — are still set by the people’s elected representatives in Congress. But they are dynamic because it allows federal rules to be updated without requiring Congress to enact a new law every time a new innovation is developed.”

“the very idea that Congress should be free to delegate power in this way has many enemies within the conservative legal movement. In a 2016 opinion, for example, then-Judge Gorsuch wrote that two foundational Supreme Court decisions preserving agencies’ ability to regulate “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.””

“early American lawmakers — many of whom were the same people who drafted the Constitution — delegated tremendous power to executive branch officials.”

“As a practical matter, when the Supreme Court hands down a vague and open-ended legal standard like the one Gorsuch articulated in his Gundy opinion, the Court is shifting power to itself. What does it mean for a statute to be “sufficiently definite and precise” that the public can “ascertain whether Congress’s guidance has been followed”?

The answer is that the courts — and, ultimately, the Supreme Court — will decide for themselves what this vague language means. The courts will gain a broad new power to strike down federal regulations, on the grounds that they exceed Congress’s power to delegate authority.”

“If five justices get behind it, the nondelegation doctrine would give a Republican supermajority on the Supreme Court the ability to veto nearly any regulation handed down by a Democratic administration.”

Is America Too Bound by Red Tape to Support Space Entrepreneurs?

“As the test flights continue, so do disputes between SpaceX and the FAA.

“Unlike its aircraft division, which is fine, the FAA space division has a fundamentally broken regulatory structure,” Musk protested before the SN9 launch. “Their rules are meant for a handful of expendable launches per year from a few government facilities. Under those rules, humanity will never get to Mars.”

The SpaceX founder isn’t alone in pointing out that regulators haven’t kept up with the times when it comes to the changing nature of ventures into space.

“The era of commercial space travel and the rise of abundant spacefaring nations has led to an increase in space activity, which has outpaced international space laws—laws that were originally imagined for state-sponsored space travel in an arena with only two spacefaring states,” Juan Davalos wrote in a 2015 article for Emory International Law Review.

“Existing space law has not kept up with the growth in the private sector, and the United States lacks a comprehensive regulatory regime,” Brianna Rauenzahn, Jasmine Wang, Jamison Chung, Peter Jacobs, Aaron Kaufman, and Hannah Pugh chimed in last summer in the University of Pennsylvania Law School’s The Regulatory Review.

Worse, the regulatory regime that the U.S. does have, inherited from an era of government-dominance of space, lends itself (as do all intrusive rules) to abuse. That can come from “you will respect mah authoritah” resentment of anybody who bucks bureaucracy. But it can also reflect government seat warmers’ discomfort with the unfamiliar and threatening world of private entrepreneurial activity.”

“even the FAA’s political masters recognize that the agency needs to change. The FAA is under orders “to streamline the regulations governing commercial space launch and reentry licensing” under rulemaking that “replaces prescriptive requirements with performance-based criteria.”

But there’s no assurance that “streamline” means easing regulation rather than making it more restrictive.”

The Texas Blackout Is the Story of a Disaster Foretold

“it wasn’t as if those running the Texas energy system’s various fiefdoms—the grid, the power plants, the natural gas–production facilities—hadn’t been warned about the dangers of severe weather. Hell may not freeze over, but history suggests that Texas’s energy system does—and with some frequency. In 1989, in 2003, and in 2011, the state experienced, to varying degrees, simultaneous shutdowns of power plants and parts of its natural gas–producing infrastructure, as significant swaths of both of those critical systems were incapacitated by arctic temperatures, triggering blackouts.

The frigid weather during the first four days of February 2011 knocked off enough power generation throughout ERCOT—about 29,000 megawatts of capacity—that ERCOT initiated blackouts affecting about 3.2 million customers, according to a voluminous postmortem of the failure produced in August 2011 by the Federal Energy Regulatory Commission and the North American Electric Reliability Corp. That report suggested the state add teeth to its effort to gird its energy infrastructure for wintry weather. Among its policy recommendations was that in states in the Southwest, including Texas, legislatures require power companies to submit winterization plans and give their public-utility commissions the authority to require senior executives of power companies to sign off on those plans and the authority “to impose penalties for non-compliance.” Magness, the ERCOT chief, said that in the wake of the 2011 report he and others met with Texas power generators to suggest that they better winterize their facilities. He was asking, not telling. “It wasn’t a conversation like, `I’m your regulator and you have to do this,’” he recalled. “It was sharing those best practices.””

“Under the deregulation scheme passed by the Legislature more than two decades ago, Texas has a market design that allows generators to make money only by selling juice—not for investing in equipment that could help produce extra power in the event of an emergency. Critics contend that this approach, part and parcel of Texas’s aversion to regulation, makes the state’s energy system less reliable, even as it boosts profits for some market participants. Based on their biographies on the ERCOT website, at least eleven of the fifteen ERCOT board members have current or prior ties to the energy industry.”

“Texas lawmakers, as they investigate what went wrong this past week, ought to explore weatherization mandates.”

“better weatherizing power infrastructure, like inducing electricity producers to invest in extra generating capacity, likely would raise Texans’s electricity rates. “Is it worth the cost to consumers?” he asked. I asked him if ERCOT had any answer to that question. “I am not aware,” he said, “that we have ever conducted a real cost-benefit analysis on that topic.””

“the electricity blackout and frozen pipes in Texas had significantly curtailed the state’s production of oil and natural gas. IHS estimated that nearly 20 percent of natural-gas production, and perhaps an equal or greater percentage of oil production, in the continental U.S. in the first half of February had been shut in—and that the Permian Basin, the big oil-producing region that sits largely in West Texas, accounted for the biggest share of that production drop.
A couple of hours later, the governor, who earlier in the week had called for top ERCOT leaders to resign, issued an announcement. Years after Texas officials had been advised to do so, Abbott said he would ask the Legislature to mandate the winterization of power plants across the state—and to “ensure the necessary funding” for it.”

Will Joe Biden Destroy Trump’s Legacy of Deregulation?

“The guiding light of the Trump administration’s deregulatory efforts was Executive Order 13771. That 2017 order instituted the famous rule that regulators issue two deregulatory actions for every new regulatory action. It also created a system of accounting for the costs of new regulations and the cost savings of deregulatory actions. This was used to give federal departments regulatory budgets that limited the costs of new regulations they could impose, and often required them to find regulatory savings.
Using this measurement of regulatory savings, the Trump administration has been modestly successful at its goal of deregulating the economy, claiming $198 billion in eliminated regulatory costs. From fiscal years 2017–2019, the administration claims to have eliminated 3.6 rules for every new rule added. That ratio is 3.2 for fiscal year 2020.

Using other measurements, the Trump administration has been less successful. In some areas, they’ve done more to slow the growth of the administrative state without significantly reducing it. The length of the Code of Federal Regulations stayed essentially flat during Trump’s time in office, hovering at around 185,000 pages. The Mercatus Center’s tracker of restrictive words in the federal regulatory code comes to a similar result, finding that these words grew from 1.08 million at the beginning of Trump’s term to 1.09 million as of January 1, 2021.

Trump “leaves us with fewer regulations than Hillary Clinton would have—though not many fewer regulations than we had before,” summarizes Robert Verbruggen in a November National Review article.

One can expect this limited progress to be more than reversed under the new administration. Biden has already announced plans to reinstate Obama-era regulations that were pared back by the Trump administration.”