Biden’s Infrastructure Plan Confuses Costs for Benefits

“Thanks to the Davis-Bacon Act of 1931, which mandates that all infrastructure projects receiving federal funding pay “prevailing” (generally union) wages, organized labor has been getting a piece of the action for nearly a century. This requirement raises labor costs by as much as 22 percent, according to an analysis by Suffolk University’s Beacon Hill Institute.

The president’s insistence that he’ll sign off on a contract only if it’s with “an American company with American products all the way down the line and American workers” will raise costs even further. Existing “Buy American” provisions are a well-established driver of transportation project costs.

A 2019 report from the Congressional Research Service found that buying American steel costs around twice as much as importing it from China. Requiring road builders to use pricier domestic steel raised the cost of highway construction by about $2 billion from 2009 to 2011, back when then–Vice President Biden was overseeing the spending of stimulus dollars on infrastructure projects.

If the president’s goal were truly to “build, baby, build,” he would be making every effort to pare back regulations that raise the labor and material costs of federal infrastructure projects. Instead, Biden wants to double down on those rules.”

After four years of inaction, the EPA is finally regulating this superpollutant

“HFCs have only been used in appliances since the 1990s, as a replacement for ozone-depleting chemicals, but their use has grown at a terrifying rate. While HFCs still only comprise about 1 percent of total greenhouse emissions, they are thousands of times better at trapping heat than carbon over a 20-year period.”

“another big task awaits for President Joe Biden to rein in HFCs: ratifying the 2016 Kigali Amendment, the global agreement to phase down these dangerous chemicals by 85 percent before 2050. It’s one of many amendments that has been added to the Montreal Protocol since 1987, a treaty that has been used to phase out ozone-depleting chemicals.
Every one of these amendments was ratified and implemented successfully by the US —except Kigali, the one that came along just as Trump and Republicans took power and brought climate action to a standstill.”

If Biden Truly Wanted To Create Jobs, He Wouldn’t Support the PRO Act

“This isn’t speculation. We know what this law bill will do to freelancers because it’s based on A.B. 5, legislation passed in California in 2019 that codified extremely restrictive rules controlling who was allowed to work as an independent contractor. The law was written deliberately to attack the gig economy and companies like Uber and Lyft, which operate on a business model in which drivers are classified as independent contractors. This means they can set their own hours and control their work schedules, but also means they don’t qualify for certain benefits. And it also makes it much harder for union supporters to organize them.

But A.B. 5 was written so broadly that in practice it affected thousands of different jobs, threatening hairdressers, freelance journalists, real estate agents, translators, musicians, and many, many others. Ultimately, the bill’s own creator had to pass legislation last year that carved out a bunch of occupational exemptions. The ride-sharing and delivery drivers were left in, but then California voters in November supported a ballot initiative that exempted them as well.

A.B. 5 is in tatters but is still officially on the books. A federal ruling had exempted truck drivers from A.B. 5, accepting the argument that it was preempted by federal transportation law. But on Wednesday, a panel of three judges in the U.S. Court of Appeals for the 9th Circuit reversed the lower court’s order, meaning that independent truckers may soon be affected by the law, hampering their ability to find work unless a company takes them on as employees.

Circuit Judge Mark J. Bennett was the sole dissenter, noting that “[California Trucking Association’s] members will now suffer irreparable injury.”

“Embedded within the PRO Act is text to take A.B. 5 nationwide, despite California voters’ rejection of the measure. It sets the exact same rules restricting who is permitted to be classified as an independent contractor, regardless of what the worker actually wants. This, to be clear, is completely intentional. A.B. 5 proponent Assemblywoman Lorena Gonzalez (D–San Diego) dismissed the concerns of freelancers, saying, “These were never good jobs.” It was very clearly her goal to dismantle and destroy the ability for workers to decide to make careers out of being independent contractors.”

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.”

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.”

New Hampshire Towns Turn Out Tiny-Home Dwellers

“For 12 years, the 25 residents of a “tiny house” community known as Walden EcoVillage managed to live in peace with both nature and local zoning officials in the town of Peterborough, New Hampshire.

That peace ended on December 15, when the city ordered the eviction of all the community’s residents, whose diminutive dwellings, many of which were less than 400 square feet, offered an inexpensive but technically illegal housing option. An application from the village’s owner to add more units to the property had alerted planning officials to the fact that its cottages and casitas were not permitted as full-time residences. A site visit also discovered a host of building code violations, including supposedly dangerous wiring.”

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.”

A Power Company’s Quiet Land-Buying Spree Could Shield It From Coal Ash Cleanup Costs

“The new regulations require utilities to clean up contaminants if they are found at high enough levels beyond the boundaries of their plant sites. By extending those boundaries through land purchases, Georgia Power could push back the day it has to deal with its legacy of pollution”

“Georgia Power spokesperson John Kraft said in a recent statement that the purchased properties were intended for use as a construction buffer while the company closes its unlined ponds, a lengthy process that includes pumping water out of the disposal site and burying the remaining coal ash in place. He did not respond to direct questions about whether the purchased land would help the company delay cleanup costs.

He noted that the company, a subsidiary of the Southern Company, the nation’s second-largest energy provider, has hired experts to monitor test wells positioned around the ash ponds for signs of groundwater contamination. Based on the results of those tests, he added, the company “has identified no impact to drinking water.””

“On Dec. 22, 2008, more than a billion gallons of a toxic slurry of coal ash and water breached a dike at the Tennessee Valley Authority’s Kingston Fossil Plant about 40 miles west of Knoxville. The wave — roughly five times the volume of liquid spilled by the Deepwater Horizon disaster in the Gulf of Mexico two years later — tore up railways, toppled power lines, knocked a home off its foundation and caked the Emory River in a thick, gray sludge.”

“Utilities produce over 100 million tons of coal ash annually, according to the EPA, making it the nation’s second-largest source of industrial waste after household garbage.

Coal ash is the fine residue left when coal is burned to produce power. The ash contains contaminants associated with long-term health risks, including damage to the kidney (from mercury), stomach (from boron) and nervous system (from arsenic). To dispose of it, utilities can either transport the waste to a landfill with a protective liner on the bottom or mix it with water in an ash pond without a layer underneath.”

Nuclear Regulatory Commission Approves First Domestic Small Commercial Reactor

“The U.S. Nuclear Regulatory Commission last week approved a design application for the first domestic small commercial nuclear reactor. These types of reactors are smaller, simpler, cheaper, and feature more advanced safety systems than traditional reactor designs. It has the potential to generate enough electricity to power more than 50,000 homes.

The reactor design was submitted by NuScale Power, an Oregon company that plans to build at least a dozen small reactors by 2030 at a site in eastern Idaho. NuScale has received $288 million from the Department of Energy for the development of modular nuclear reactors, but a complex regulatory system for nuclear power means there’s a long way to go before construction can begin.

Utah Associated Municipal Power Systems—a consortium of 46 public utilities in six western states that plans to work with NuScale on the small reactor project— is now required to submit a combined construction and operating license application, and must complete an environmental analysis in compliance with the National Environmental Policy Act. Utah Associated spokesman LaVarr Webb told the Associated Press that he estimates these applications will likely take two years to prepare.”

“NuScale submitted its 12,000-page application to the U.S Nuclear Regulatory Commission in 2017 and has responded to more than 1,500 formal requests from the commission for more information. There’s a reason that NuScale’s design is the first that the NRC has approved since 2014.

While NuScale is moving forward, NRC regulations seem to be discouraging innovation. Carrie Fosaaen, a licensing specialist at NuScale, told Science Magazine that the NRC regulations, strictly interpreted, would push NuScale towards just building a miniature version of a conventional reactor—rather than being able to incorporate the design improvements that make NuScale’s design safer than conventional reactors.

As more states shift away from generating electricity from fossil fuels, nuclear power should be part of the mix. California’s rolling blackouts show how an increased focus on renewable energy comes with a problematic lack of durability for the power grid. The sun and wind do not care about the demand for electricity. Sometimes the sun doesn’t shine, or there is no wind. Nuclear power, however, produces a consistent amount of electricity that can be dialed up or down to meet demand.”