“A great many persons at the present day are quite contented with this sort of compromise between administrative despotism and the sovereignty of the people; and they think they have done enough for the protection of individual freedom when they have surrendered it to the power of the nation at large.”
- Alexis de Tocqueville
If one were to look for the proto-typical European bureaucracy in America, one would have to look no further than the California Air Resources Board (CARB), a department of the California Environmental Protection Agency (CalEPA). CARB has an 11 member appointed board which is directed by a full-time chairman who oversees an $860 million annual budget and a 1,200 member staff of administrators, regulators, technicians and compliance officers. They are charged with protecting the state’s ambient air quality standards through a menagerie of federal, state and local programs regulating mobile and stationary emissions. They coordinate with 35 regional air quality management districts to accomplish this task. They describe their mission on their website: “[T]o promote and protect public health, welfare, and ecological resources through effective reduction of air pollutants while recognizing and considering effects on the economy. CARB oversees all air pollution control efforts in California to attain and maintain health based air quality standards.” In recent years, they have also been granted broad authority to deal with the Legislature’s global warming initiatives, crosscutting their activities with several other state departments and influencing just about every local government body.
The Long Arm of the Regulators
In an effort to deal with very real smog and air pollution problem localized in California nearly 50 years ago, Governor Ronald Reagan signed the Mulford-Carrell Act of 1967 which combined the efforts of the Bureau of Air Sanitation and the Motor Vehicle Pollution Control Board, both in the Department of Health, to create an independent CARB. In essence, this new board was to promulgate regulations to accomplish their mission in developing sufficient air quality standards based upon sound scientific principles, while balancing economic impacts—a seemingly essential component to any regulatory body. As with most bureaucracies, the solution was to enable a group of professionals and experts to observe conditions, synthesize the science and make various recommendations to a citizen board on how to abate or mitigate poor air quality. By and large, as guided by legislative intent, CARB has and is accomplishing their purpose, while at the same time, managing to metastasize in size and influence.
No doubt, CARB has often been the catalyst for change, and has been successful in certain measures, notably with their strong advocacy for catalytic converters in the 1970’s. Recognizing the legislative mandates hoisted upon them, and Governor Arnold Schwarzenegger’s proclivity for environmental causes, CARB struggles to please its many masters and may confuse political necessity with relevant and accurate analysis. Most recently, they were compelled to redo their economic analyses of the AB 32 Scoping Plan and have indicated that they are revisiting the economic modeling they used as a basis for their diesel regulations. As the state’s air is arguably cleaner than it has been over the last several decades, CARB’s expansive mission lends itself to regulate for the sake of regulating, often rushing a rule through to meet a deadline, rather than to make sure it is right.
A few examples from the recent past: they moved forward on rules that required implementing technology that would not be ready for years (e.g. enhanced vapor recovery systems for gas stations and workable diesel particulate filters for heavy duty vehicles); they favored certain methods or products with demonstrated deficiencies (e.g. low carbon fuel standards or cool cars glazing); or they promoted a variety of fuel economy standards that complied more with environmentally-correct fads rather than considering fatal consequences that may follow. CARB rarely acknowledges that the smaller cars used to achieve fuel efficiency standards have occupant death rates twice that of larger cars. The health and safety impacts in air quality regulations must be measured by more than the rubric of emission quotas.
As benign as any action carried out in private enterprise may be, CARB has been marshaled not only with the power to make the rules, but also to enforce them. They regularly announce online the latest air regulation violators, with accompanying details of the violation and fine. They treat and expose the simple clerical error in paperwork the same way they would for those with substantial emissions violations. Exposing gross polluters is one thing, but shaming a West Sacramento company for failing to file a report (as they recently did) is beneath the dignity of a state agency. This sort of tactic undermines CARB’s effectiveness in achieving its core mission and further complicates future resolve for businesses to comply with air quality regulation, especially in light of more complex rules coming down the pike.
Air Board Hubris
Recently, CARB’s mission and mandate has grown to a stature that moves well beyond the regulation of pollution as it now deals with greenhouse gas (GHG) emissions, per the California Global Warming Solutions Act of 2006 (AB 32). AB 32 authorized CARB to have near carte blanche authority to pursue any number of regulatory actions, if a connection between the rule and its impact on global warming can be made, no matter how tenuous that connection may be. CARB’s Scoping Plan touches a vast array of human enterprises, addressing energy plants, cement producers, automobile manufacturers (in and out of the state), refrigerants, car paint colors—even the air pressure in one’s car tires—just to name a few. Subsequent and complementary legislation has given CARB more control over land-use regulations. The Governor has also ordered CARB to work with the Public Utilities Commission to postulate over the state’s renewable energy standard, despite serious constitutional questions regarding separation of powers between the legislative and executive branches of government.
Even if some of the Governor’s executive orders test the boundaries of the constitution, it is certainly his responsibility to keep his appointed board members in check with his agenda. When there are concerns about the course or velocity of regulatory action (or inaction), the Governor has the prerogative to release a board member of his or her duty and appoint another. This was the case in 2007 when Chairman Robert Sawyer decided that CARB was not moving fast enough to reduce the state’s GHG emissions. While straddling between the divergent interests of the environmentalists and industry, Governor Arnold Schwarzenegger hedged on the side of industry advocating for taking a slower approach on implementing the new rules, and forced the resignation of Chairman Sawyer. In his place, the Governor seated Mary Nichols, another venerated environmentalist, as Chairman of CARB. This is her second tour of duty after serving as the Chairman under Governor Jerry Brown from 1978 to 1983. Chairman Nichols has been no stranger to controversy herself.
Just before a critical vote in December 2008, Chairman Nichols and a few other members of the board had learned that the lead researcher for the underlying study of the health impacts of particulate matter in diesel equipment and vehicles had falsified his credentials. Rather than revealing that fact to the rest of the board, she decided to move forward with a vote on a critical component of the diesel regulation. When the cover-up was later revealed, Chairman Nichols admitted that she did not appropriately disclose the relevant information. A couple members of the board, who nonetheless accepted the results of the study, felt that it was important to revalidate the public’s trust in the regulatory process. Unfortunately, Chairman Nichols refused to give any extra effort or scrutiny to the study and denied the request of her fellow board members. On a side note, the implicated analyst is still employed at CARB.
Making the rules with the public’s input can be a very difficult and constraining task. Chairman Nichols revealed her feelings on the public comment process during the February 25, 2010 monthly board meeting. When a coordinated constituency on interested stakeholders converged upon the hearing (at the recommendation of at least one board member and with the knowledge of CARB staff), Chairman Nichols pre-empted what had been up to that point, an obligatory, if not legal, open comment period with the following statement (edited for brevity - reader may view these comments here):
“We have a tradition which predates my coming to the board, of allowing an open comment period when anybody can come in and talk about anything they want to talk about…it is not required of us but we have done it in any event…In recent months we have learned that the former occupier of my chair has discovered the usefulness of this procedure as a way to do organized presentations on topics that were not part of the board’s agenda, presumably to bring them to the attention of the board members, but perhaps to get some media coverage or public attention. Frankly, I think it’s an abuse of the process. On the other hand we have made this available, so we have no choice but to entertain it at least for today’s purposes. And I don’t mean to be critical of any of the individuals who have come here to speak in good faith, but I do think it should be noted that the topic they are all here to testify about is one within the scope of changes that the staff is working on purposing at this time.”
The chairman’s statement—accurate or not—flies in the face of accepted policy on public participation, and further alienates reasonable people from rightfully petitioning their government and engaging in the rulemaking process.
Reducing CARB’s Footprint
With California enduring an economic slump unrivaled since the Great Depression, perhaps it is time to ask why the state bureaucracy - which brags about its ability to extract exorbitant fines on business - continues to grow at such a rapid pace, contrary to California’s economic growth. What was originally meant as a board intended to clean up smog and decrease air pollution, CARB has become a primary instigator of environmental policy and the state’s de facto environmental organization, often outshining its mother agency, CalEPA.
The implied characterization of an insatiate board is neither meant to disparage nor denigrate the work or performance of a vast majority of the board’s staff. They are simply doing the job that the Legislature does not want to do. Yet every citizen who cannot reasonably appeal to an unelected bureaucracy should ask the question—where does CARB’s authority end? Several legislators over the last few years have attempted provide some checks and balances on CARB and scale back the bureaucracy with little success. They acknowledge that such concentrated power in a democratic republic is unhealthy, and needs to be checked.
Again, the power and authority CARB maintains was not usurped – it was ceded and enabled. Only the Legislature, willing to abrogate its power so freely, could empower CARB with the command and control structure it maintains. This capitulation of power enables CARB an autonomous province to pursue regulations-at-all-costs with little, if any, accountability to the public or the Legislature for its actions.
Perhaps it is time for the Legislature to cut the state’s CARB footprint, and take back some control for the people.
For more information on this report or other Environmental Quality issues, contact Lance Christensen, Senate Republican Office of Policy at 916/651-1501.