Supreme Court Rules EPA Must Obey the Law

It should be obvious that the EPA must obey the law.  However, the EPA and every other regulatory agency has long adopted the principle that they can exercise whatever flights of fantasy they wish in interpreting the laws passed by Congress that the agency has been empowered to enforce.   The EPA has declared that carbon dioxide is a pollutant under the Clean Air Act and claimed that that gave it the power to control its emissions from power plants. Carbon dioxide was certainly not considered a pollutant when the Clean Air Act was passed into law.  It was declared a pollutant by the EPA under the Obama administration under the claim that it caused catastrophic man-made global warming.  That declaration of carbon dioxide as a pollutant had particularly threatening effects upon existing coal-fired power plants.  The Supreme Court put a temporary hold on the Obama EPA rules for carbon dioxide emissions from power plants.  In 2017, the Trump EPA changed those rules to make them more lenient, but the U.S. Court of Appeals for the District of Columbia decided the Trump EPA rules were invalid.  This caused West Virginia and 18 other states to appeal that ruling to the Supreme Court.

If carbon dioxide actually did cause catastrophic man-made global warming, that would still not actually make it a pollutant and it would not really have been addressed by the Clean Air Act.  The EPA is required to provide scientific studies proving that an emitted gas is a pollutant.  The EPA cited no actual science proving that carbon dioxide caused catastrophic man-made global warming.  It did point at the UN IPCC reports, but those reports are only political documents fulfilling the desires of the governments of the world.  They are not scientific analyses, though they mascaraed as such.  The Summary for Policymakers for each report is written by the political representatives of the governments and any failures of the more detailed "science" sections of the report to support the political Summary for Policymakers are corrected as required.  There have been many re-writes of the science sections to make them more supportive of the political ends of the governments.  Nonetheless, the unwarranted assumptions and the holes in the scientific argument for catastrophic man-made global warming are apparent to any careful reader of the "science" sections of the UN IPCC reports.  Over the years, many of the scientists who wrote the original science sections stopped participating in the writing of the IPCC reports because they were furious about how the science sections were rewritten either by the scientists on the take or by purely political hacks.

In a 6 - 3 ruling, written by Chief Justice Roberts, the Supreme Court said that it was implausible that the Congress would have given the EPA the power to control carbon dioxide emissions of power plants without saying so clearly and explicitly in the Clean Air Act.  He also said that such controls have such a strong effect upon our energy service that such a power requires that Congress address it in law explicitly if those controls are entrusted to a government agency.  Indeed, the implication was that any agency making decisions with great magnitude and consequence must have been given that power very explicitly by our elected representatives.

This ruling is of huge importance for American energy infrastructure and the cost and reliability of power for Americans.  It will likely also result in a welcome reduction of regulatory overreach so common for most of our government regulatory agencies.  It will force Congress to make laws addressing many issues for which they might rather not take responsibility.  The rate of new rulings of government agencies far surpass the rate of new laws produced by Congress.  This court ruling will serve as a brake on the rapid growth of government micromanagement of most all aspects of our lives.

I propose we make 30 June a national holiday called Freedom from Regulation Day.

Unconstitutional Rule by Bureaucracy

There is an excellent article by John Yoo and Dean Reuter at AEI on this subject.  I think it is instructive, but not surprising given the general incompetence of our federal government, that there is no authoritative list of all the rule-producing government agencies.  This fits in very well with the fact that the federal government has no authoritative accounting of its assets.  It is not even clear that it knows who it employs.  Yet this unaccountable government expects individuals and companies to be much more accountable than it is.  It is the old "Do as I say, not as I do." rule.  This is the unaccountable, unconstitutional power that adds 80,000 pages of rules and regulations a year that everyone of us is expected to read, study, interpret, check on court interpretations, and find ways to obey in our lives.

Did you do your duty as a peon under this system of governance?  If not, wouldn't you be better off if you required the legislative body, our Congress, to be the sole source of binding rules which we must obey.  Of course, that would not be sufficient either given that our elected representatives cannot be bothered to read the laws they vote for.  We must make them pass a law that no legislative representative may vote for a law they have not read.

Extortion of Businesses Using a Safety Regulation Scam

This is a particular examination of a regulatory case which applies to relatively few people.  This makes it a more viable scam which does not generate voter ire during elections.  Some voters are actually deceived into thinking that big government is doing its job of protecting them.  This case is instructive in terms of understanding what motivates most regulatory agencies and about their competency as a regulator.  In that way, it should of interest to everyone who wants rational, ethical government and cares about the rights of the individual.

The state of Maryland under the Dept. of the Environment has a Radiological Health Program which regulates all x-ray generating equipment except the cathode ray tubes (CRT) used in the older TV and computer monitor technology.  Yes, CRTs generate x-rays.  The electron beam that causes the light to appear generates x-rays at moderately high energies such as 25 to 40 KeV energies.

My laboratory operates a scanning electron microscope whose electron beam energy is commonly in the 15 to 25 KeV range and so can generate x-rays with energies up to the electron beam energy.  But, unlike a CRT computer monitor or TV, the SEM has very thick stainless steel walls.  Just as is the case with a CRT, the x-rays are contained within a vacuum system into which no human body part can be inserted while under vacuum.  When the sample insertion door is opened, no x-rays can be generated because if the electron beam-producing filament was on, it would instantaneously burn out and the electron beam would be eliminated.

This SEM instrument and the entire class of them was ruled a couple of years ago in Maryland to be safe enough that it does not have to be listed and no x-ray tube tax is assessed on it by the state of Maryland.  I thought this meant that the only reason my laboratory still had to register as a certified radiation facility was because of our x-ray photoelectron spectrometer (XPS) system.  Apparently not quite so.  Under this belief, and knowing that there is no conceivable safety hazard in operating the XPS system and that it is actually clearly much safer even than either a CRT or an SEM, I attempted to get it exempted from regulation.

As a regulated radiation facility, I have to hire a state-licensed inspector to come to my laboratory every two years and run around with a Geiger counter looking for radiation near the SEM and the XPS system.  He sometimes thinks he can see something, but never enough radiation to warrant any health issue.  What he is actually seeing is the radiation emitted due to very energetic cosmic rays hitting the massive steel structure and generating x-rays at higher levels than does the air when he backs up a couple of feet from the instrument.  He is not seeing any radiation from the inside of the instrument due to its operation.  But, he does not know enough radiation physics to know this.

I pay the state Radiological Health Program a $215 x-ray tube charge every second year for each x-ray tube they require to be listed.  I also have to pay for radiation badges, which in 18 years of operation have never had a quarterly reading other than 0 mRem.  This is despite the fact that I leave a badge on the instrument at the most vulnerable point 100% of the time, so it collects at least 100 times more radiation than any operator possibly could.  It is a hassle to mail these back to the radiation measurement company to be read and recorded due to the unusual size of the envelope and the bulk of the badges.  The post office requires a different amount of postage almost every time.  In addition, I am supposed to have my instruments maintained by a state-licensed company, none of whom know anything about an XPS instrument.  Presumably, this is to assure that safety issues are addressed, but if there are no safety issues, I am baffled as to how they are to address them.

A couple of years ago, I had a phone conversation with one of the radiological health bureaucrats about getting the absolutely safe XPS exempted.  He flat out told me that the radiation physics and the fact of whether there was any possible danger or not was of no concern to him.  He said their purpose was to make people feel as though they were safe from radiation.  Whether there actually was any radiation or not was of no interest to them.  This time around, I thought I would write them a letter and explain why this instrument should be exempted and why my laboratory should not have to register as a radiation facility.  This letter follows:

Roland G. Fletcher

Program Manager IV

Radiological Health Program

Air & Radiation Management Administration

Maryland Dept. Of the Environment

1800 Washington Blvd.

Baltimore, MD 21230

Phone: 410-537-3000

Dear Roland Fletcher,

Anderson Materials Evaluation, Inc. does not now and never has operated any radiation machine with any safety hazard.  The only radiation producing equipment we operate produces low energy radiation completely contained by a vacuum containment vessel, which cannot be breached without the instantaneous destruction of the filament which creates the electron beam and hence the x-rays.  These instruments are:

•                    Cathode Ray Tube (CRT) Computer Monitors

•                    Scanning Electron Microscope (SEM)

•                    X-ray Photoelectron Spectrometer (XPS)

These are listed in the order of the danger posed by each.  Your agency has rightly acknowledged that the first two do not require registration as a radiation facility.  Therefore, the much less dangerous XPS system does not require registration either.

The CRTs have electron beam energies of 25 KeV and higher and therefore can generate Bremsstrahlung radiation inside their vacuum containment vessel up to an energy equal to the beam energy.  Our SEM is operated in the electron beam energy range from 15 to 25 KeV.  These are acknowledged safe instruments.

Our XPS system is operated at only 10 KeV and the radiation is only emitted into the analytical vacuum chamber after passing through an x-ray monochromator which filters out all x-ray energies except those precisely at the 1.487 KeV energy of the main aluminum Kα characteristic x-ray.  This is an incredibly low energy x-ray, which precisely suits the purpose of having as much of the x-ray absorbed in the outer 20 nanometers of a material surface as possible.  The only photoelectrons useful to us are those emitted from this depth or less.  This beam has no penetrating power!  If it were possible to enter air, its mean free path is still less than 1 millimeter.

I have raised the issue of getting this instrument exempted before and I have been ignored.  I am unable to continue spending money and my time on this pointless nonsense.  The Obama economy has sapped our resources sorely and your new requirement that only licensed x-ray maintenance companies provide the maintenance on this highly unusual system with no safety issues is not one it is possible to comply with.  They know nothing about this system and nothing they can do can possibly make the system safer than it already is.  There are no fail-safes which have any possibility of failing to work.

So, there is no reason for Anderson Materials Evaluation, Inc. to renew its Radiation Facility license # 27-0563 and there is no reason we should be taxed for having an x-ray tube.  It is high time that some semblance of rationality is applied here.

Best wishes,

Charles R. Anderson, Ph.D.

President & Principal Scientist

I would have viewed a reasonable response one in which they simply said OK the XPS instrument is exempted or we will send our radiation physics expert out to your facility to make a determination of whether it might be exempted or not, perhaps at my expense.  The response to this letter strongly suggests that it was viewed as an insurrection to be dealt with even more sternly and forcefully than King George III moved to put down the rebellion in the colonies in America.  Here is the response, not from Mr. Fletcher, but from the Queen herself:

Dr. Anderson,

Thank you for your letter dated December 6, 2013 in response to the Notice of Violation that the Department issued.  I appreciate the concerns that you have raised but each of our 5,000 regulated facilities must adhere to the Maryland regulations in order to ensure the the general public and the occupational worker are not exposed to unnecessary radiation.  

The scanning electron microscope does require the registrant to denote possession of this unit on the Radiation Machine Facility Registration Form (RX1).  Also the State licensed private inspector does inspect and perform an area survey of this unit.  

The X-ray Photoelectron Spectrometer (XPS) must undergo a state certification inspection by one of the state licensed private inspectors. This unit is not exempt from complying with the Maryland regulations.  

Failure to comply with these regulations will subject the facility to further enforcement actions.

Thanks,

Eva  

Eva S. Nair
Division Chief, Radiation Machines
Maryland Department of the Environment
Radiological Health Program
(410) 537-3179

It is interesting that all of my letters to my Congressman and my Senators and any bureaucrat of the state of Maryland start with a thank you for my letter and then an assertion of complete disagreement without any attempt to actually address the argument I gave for my viewpoint.  This is the response to be expected from Imperial Government which prefers a minimum of insurrection, but will put any insurrection down with brutal force if that proves expedient.

The violation she claims is because I had not put in for a renewal of my radiation facility registration by 16 November because they demand 45 days to process those registrations.  In reality, I am only in violation if I operate the XPS instrument after 31 December when my current registration and certification runs out.  So, I probably will not be able to operate that instrument in early January or maybe all of January.  If that condition continued longer than that, I and my employees will all be unemployed.

So, once again, I am forced to apply for a radiation facility certification when the most dangerous radiation sources in my laboratory are the CRTs we still use on a number of our computers.  Logically and rationally, any CRTs in residences and offices throughout the state should be regulated by the Radiological Health Program given that my equivalent or safer instruments are.  Imagine the insurrection if this were done.  That would be a loser at the polls, so it is not done.  But, it is always easy to extort businesses, whose owners are but a small fraction of the vote.

Now in the mind of a big government bureaucrat, no possible instance of misleading the public into believing they are being protected by that big government can be missed.  The more facilities they regulate, the bigger their income from the x-ray tube tax, the bigger their budget from the taxpayers, and the higher their inflated salaries with the least risk of unemployment.

Yes, medical and dental x-ray instruments do have real safety issues.  But, this Maryland agency does not at all care if an instrument has no safety issues by virtue of its function, design, and radiation physics.  It is only interested in setting itself up under the pretense of providing safety.  It reveals itself as having no actual radiation physics expertise, which makes one wonder how it can be doing a credible job of protecting the People from those radiation-producing instruments which can do real harm.

The Emperor has no clothes.  But the nude Emperor is vicious and brutal.  This is nearly an invariable rule with government regulatory agencies.  They are particularly a plague upon businesses, because that is where the money is and because most of them have little political clout.  They care not a fig for the legitimate function of government of protecting the sovereign rights of the individual to life, liberty, property, and the pursuit of happiness.  They get rich by violating the individual right to earn a living providing one is doing no harm to others.  The Emperor lives high on the hog pretending he is protecting the People, few of whom understand that most of those claims are fraudulent.

What is Bad About a So-Called Government Shut-Down?

A so-called government shut-down is not really a shut-down of all government activities.  The defense of the country will continue to be provided.  Even Social Security checks and payments for Medicare will continue.  Yes, the employees of some meddling government regulatory agencies will be marked as non-essential and will be sent home.  That is the very least most of them are.  It is not at all essential that government interfere with the sovereign rights of the individual to life, liberty, and the pursuit of happiness, which is the mission of the government regulatory agencies.

Aside from defense, even the few powers the Constitution grants the federal government, are not very essential over short periods of time.  The power to establish post offices and post roads can surely go without exercise for a few months with no great consequences.  The power to establish a uniform rule of nationalization is already established in law, albeit not very good law.  Uniform laws on bankruptcy have also been established.  The regulation of commerce with foreign nations needs only to glide along established paths for a few months.  Protection against counterfeiting requires but a small group of specialists and it is clear that counterfeiters cannot even begin to compete with the Federal Reserve in watering down the value of the US currency in any case.  The Patent Office is also a small operation by the standards of the federal government.  Even the management of the federal courts is a very small fraction of the manpower used by the federal government.  The next Census is not to be held until 2020.  So, basically there is very little of the present mammoth government that is needed to perform its constitutionally granted functions, aside from the military.

And still the Social Security and Medicare checks will be also be issued, despite these activities clearly being beyond the constitutional grant of powers.  But, the EPA, NLRB, FEC, FAA, NOAA, NASA, NIH, FDA, the Agricultural Dept., the Energy Dept., the Education Dept., the Housing and Urban Affairs Dept., the Labor and Commerce Depts., SEC, HHS, and other agencies whose primary purpose is to control our lives and infringe upon our individual rights will have to designate many employees as non-essential and furlough them.  That is a very good thing.

Perhaps, these furloughs will even set aside many of the people writing regulations to implement such awful laws as ObamaCare and the Dodd-Frank cover-up of the government culpability for the financial melt-down of the Great Socialist Recession.  Perhaps Obama will not have enough aides to do the paperwork to give his supporters special subsidies and exclusions from laws such as ObamaCare.  Now that would be a most excellent consequence of a government slow-down.

In fact, let us make the government slow-down a permanent thing!  It will do much to return our government to its legitimate function of protecting our sovereign individual rights.  It will do much to decrease its many tyrannical activities.  If the slow-down lasts long enough, any of the slowed activities with any justification will be taken up by the private sector and performed much better than our incompetent government does them.

Walter Williams - Congress's Financial Mess

Walter E. Williams, professor of economics at George Mason University, has written another interesting commentary on the current financial crisis called Congress's Financial Mess. He notes that the new media have repeatedly insisted that the current financial crisis was caused by deregulation and free markets. He goes on to show that this is not at all the case.

Professor David Henderson, research fellow at the Hoover Institution of Stanford University, studied how regulation has grown in general over the last few decades. He published his results in "Are We Ailing From Too Much Deregulation?" in Cato Policy Report (Nov/Dec 2008). He examined the Federal Register for its lists of new regulations.

• 1977-1980, Carter, annual average of 72,844 pages of new regulations
• 1981-1988, Reagan, annual average of 54,335 pages
• 1989-1992, Bush, annual average of 59,527 pages
• 1993-2000, Clinton, annual average of 71,590 pages
• 2001-2008, Bush, annual average of 75,526 pages

Employees in government regulatory agencies:

• 1980, 146,139 employees
• 2007, 238,351 employees, an increase of 63%

[How do you measure the efficiency of a regulatory agency employee? Is it by the number of new pages of regulations per employee? If so, in 1980 there were 0.50 pages of new regulations per employee and this had dropped by 2007 to about 0.32 pages per employee! Apparently, the more employees, the less efficient they become.]

Regulatory spending by the banking and finance industries:

• 1980, $725 million
• 2007, $2.07 billion, an increase of 286%
  

Under the recent George Bush, there was no hesitation at all in creating new regulations. In fact, the Bush administration specifically wanted to tighten down on risky mortgage and other loans by banks, but Congress would not allow it. The most outspoken critics of tighter credit controls in Congress were Democratic leaders and committee chairmen, including Rep. Barney Frank and Senator Harry Reid.

The Clinton administration made a concerted effort to force Fannie Mae to expand mortgage loans to low and moderate income people in 1999. They used the 1977 Community Reinvestment Act to make the banks make high-risk loans they otherwise would not make. Banks not submitting were fined and their mergers and branch expansion plans were denied or held-up.

In 2008, about $5 trillion of mortgages outstanding were owned or securitized by Fannie Mae, Freddie Mac, Ginnie Mae, the Federal Housing, and the Veterans Administration. This was one-third of all such mortgages.

[Government also encouraged the inflation of home and property values with extremely low interest rates through inflation of the money supply by the Federal Reserve Board over the last several years.]

To make matters still worse for us taxpayers, Bush gave the auto industry a bailout of $17 billion in addition to about $700 billion in bailouts to banks and financial institutions. Now, the presidents of 36 state government universities are asking for a bailout. State governors and local governments are readying proposals for bailouts, with California $15 billion in the red, Florida $5 billion negative, and Michigan shutting down a prison to save money.

Williams notes that the news media is insulting our intelligence! Unfortunately, they appear to be right about the intelligence, or at least the attention span, of the average voter.