- Supreme Court should clarify whether agency has discretion to ignore any and all costs in designating Endangered Species Act habitat [Ilya Shapiro and Randal John Meyer on Cato certiorari amicus in Building Industry Association of the Bay Area v. U.S. Dept. of Commerce]
- Unanimous decision in Corps of Engineers v. Hawkes is second SCOTUS ruling this year against Environmental Protection Agency, and umpteenth blow to its reputation [Ned Mamula, Cato]
- Speaking of billionaires with vendettas against speech: Tom Steyer of San Francisco pushes New Hampshire attorney general to join probe of wrongful climate advocacy [Mike Bastasch, Daily Caller, earlier here, etc.]
- “Modern zoning would have killed off America’s dense cities”: 40% of Manhattan’s buildings couldn’t be built today because they would violate a law [New York Times, Scott Beyer/Forbes]
- And if anyone should know about tainting it’s them: United Nations human rights bureaucracy probes Flint water contamination [Associated Press]
- Anti-fossil-fuel demonstrators block rail line and the Associated Press can’t find a single critic to quote [related, Shift Washington]
In old Japan, it is said, the courts of Edo (now Tokyo) were presented with the complaint of a shopkeeper whose upstairs neighbor had enjoyed the delicious smell of his cooking without, as the plaintiff said would be fair, paying a price for it. To find out how the samurai judge cleverly resolved the complaint, read on…. [Dan Lewis, Now I Know]
- On the Flint water fiasco, building for many months now, multiple levels of governments have plenty to answer for [Detroit News (“Lower-level [state DEQ] officials continued to downplay severity of Flint’s drinking water problems for almost 3 more months.”), The Hill and Detroit News (EPA), earlier and on government impunity] More: David Mastio, USA Today (even after fiasco, prevailing blood-lead levels in Flint children greatly improved from ten years ago); Rob Sisson/ConserveFewell; Matt Pearce/L.A. Times.
- Background on Oregon standoff: what would a market-based federal lands grazing program look like? [Randal O’Toole, earlier on Malheur refuge occupation here, here]
- “Trying to Build a Catskills Resort Despite Mountains of Regulation” [Cori O’Connor, WSJ]
- “Next stop for Paris climate deal: the courts” [Politico] Chart overview of climate change litigation in U.S. [Arnold & Porter via Kyle White, Abnormal Use]
- “The emerging cross-ideological consensus on zoning” [Ilya Somin] “Zoning Laws Transfer Wealth in the Wrong Direction” [Noah Smith]
- Time for Supreme Court to revisit its doctrine on exhaustion of state litigation remedies in takings cases [Ilya Shapiro, Cato]
- Pulitzer logrolling, politicization of Columbia J-school are old stories, but vendetta against Exxon adds a few new twists [Fraser Seitel, O’Dwyer, earlier]
Recommended in sorting out what went wrong on many sides: here’s a local, detailed commentary on Flint, Michigan’s water crisis that doesn’t read as if it’d picked its villain in advance. [Greg Branch]
My take on the Oregon standoff, this morning at The Federalist:
As my Cato Institute colleague Randal O’Toole skillfully explained, none of the protagonists in the Oregon standoff really deserve our admiration: the Hammond ranching family misbehaved, the federal government overcharged, and then the Bundy cranks arrived to spray kerosene on the glowing embers….
Unlawful protest occupations of public places and government buildings have long been a familiar part of American public life, and even those not involving arms sometimes have rather serious consequences for the health and well-being of innocent bystanders….
In the ordinary calculations of humanity, events like Waco and Ruby Ridge and the Philadelphia MOVE bombing represent a grotesque failure. Despite the spirit of the mob and the ever-present temptation to shoot first, most such situations in our country are resolved with legal consequences for the wrongdoers but not with loss of life and limb. We should be glad of that.
Read the whole thing here. I’ve covered the earlier Bundy Nevada standoff in this space, as well as the wider phenomenon I call folk law. For more coverage of occupations, blockades, and acts of physical intimidation that were resolved without bloodshed (and sometimes without later legal consequences to those who broke the law) see our tag on selective law non-enforcement, including this from 2011 about how some cheered when unionized Wisconsin police announced solidarity with protesters occupying the state capitol and refused orders to oust them.
More: Randal O’Toole has a new post up on the Hammonds’ actions and punishment.
It’s a familiar libertarian insight that regulation often holds government itself to lower standards than it does private actors. Pension funds for public employees are mostly immune from the federal solvency and funding requirements that apply to their private counterparts; Federal Trade Commission rules against false advertising by private companies do not restrain false advertising by government actors on the same topics; the FTC can fine companies massively for data breaches even as the federal government itself suffers gigantic losses of sensitive data to foreign actors with few, if any, visible career consequences for those who had dozed; anticompetitive practices per se illegal under antitrust law become legal when the states engage in them, and so on and so forth.
Now David Konisky of Indiana University and Manuel Teodoro of Texas A&M, in a study published by the American Journal of Political Science entitled “When Governments Regulate Governments,” have taken a look at some data:
Our empirical subjects are public and private entities’ compliance with the U.S. Clean Air Act and Safe Drinking Water Act. We find that, compared with private firms, governments violate these laws significantly more frequently and are less likely to be penalized for violations.
For the study, Konisky and Teodoro examined records from 2000 to 2011 for power plants and hospitals regulated under the Clean Air Act and from 2010 to 2013 for water utilities regulated under the Safe Drinking Water Act. The study included over 3,000 power plants, over 1,000 hospitals and over 4,200 water utilities — some privately owned and others owned by public agencies.
* For power plants and hospitals, public facilities were on average 9 percent more likely to be out of compliance with Clean Air Act regulations and 20 percent more likely to have committed high-priority violations.
* For water utilities, public facilities had on average 14 percent more Safe Drinking Water Act health violations and were 29 percent more likely to commit monitoring violations.
* Public power plants and hospitals that violated the Clean Air Act were 1 percent less likely than private-sector violators to receive a punitive sanction and 20 percent less likely to be fined.
*Public water utilities that violated Safe Drinking Water Act standards were 3 percent less likely than investor-owned utilities to receive formal enforcement actions.
[After speculating that public operators may find it harder to raise funds promptly for needed facilities improvements:] Public entities also face lower costs for violating the regulations, the authors argue. There is evidence from other studies that they are able to delay or avoid paying fines when penalties are assessed. And officials with regulatory agencies may be sympathetic to violations by public entities, because they understand the difficulty of securing resources in the public sector.
Poynter: “A blockbuster investigation from The New York Times that provoked officials to intervene in poor workplace conditions in nail salons throughout New York ‘went too far in generalizing about an entire industry,’ Public Editor Margaret Sullivan wrote Friday morning.” That’s, well, cautiously worded: as critics have demonstrated, the series got basic facts wrong and its falsehoods have hurt thousands of New Yorkers, especially struggling immigrants, in multiple ways.
Major congratulations to Jim Epstein, Elizabeth Nolan Brown, and the others at Reason and elsewhere who relentlessly exposed the faults in the Times coverage. And Sullivan’s letter is revealing about just why editors until now ignored Epstein’s Reason coverage, which blew up some of the series’ central allegations about advertised pay rates in the Chinese-language press and about supposed clusters of health effects. “The Times has not responded [because] editors think the magazine, which generally opposes regulation, [is] biased.” Some Twitter responses:
— Michael Calderone (@mlcalderone) November 6, 2015
— Virginia Postrel (@vpostrel) November 6, 2015
- Urban planning itself “has become the externality” [Randal O’Toole, Cato, quoting a New Zealand official]
- New William Fischel book Zoning Rules! [Emily Washington, Market Urbanism]
- If you didn’t catch the earlier update, Jim Epstein at Reason has a critique of the New York Times’s claim to have discovered a miscarriage cluster among nail salon workers;
- Now available: latest annual report on bounty-hunting under California’s Prop 65 [Bruce Nye/Cal Biz Lit with analysis]
- Jane Jacobs vs. Robert Moses: the opera [Jesse Walker, Reason]
- Urbanization is good for the environment [Marian Tupy, Cato]
- Regarding those reports that a major witness in the Chevron Ecuador case “recanted” [Paul Barrett, Business Week]
- Availability of Uber and Lyft at LAX airport tied up in lawsuits including one filed under CEQA, the California environmental-review law often used tactically to delay projects [Los Angeles Times]
- Twenty years after his classic contrarian article on recycling, John Tierney returns with another close look at its pros and cons [New York Times] Quit scapegoating plastic bags, they carry enough weight as it is [Katherine Mangu-Ward, Reason, related]
- California class action: Reynolds should have disclosed formaldehyde in vaping [Winston-Salem Journal] Authors of widely noted New England Journal of Medicine formaldehyde/vaping paper got “philanthropy to support research” from two big-league trial lawyers [NEJM paper, disclosure form, Joseph Nocera January, related April, August and recent New York Times columns, Michael Siegel]
- Federal court blocks EPA’s hotly disputed Waters of the United States (“WOTUS”) rule [Jonathan Adler; National Wildlife Federation (pro-rule); Todd Gaziano and M. Reed Hopper, PLF (against), American Farm Bureau Federation (same)]
- Environmental law firm intervenes in Louisiana governor’s race to tune of $1.1 million [Greater Baton Rouge Business Report]
- Same state: “BP oil spill settlement to reimburse millions Louisiana paid to politically connected law firms” [Kyle Barnett, Louisiana Record]
- Government subsidies for rebuilding hurricane-prone areas disproportionately aid the wealthy [Chris Edwards, Cato]