Sunday, August 29, 2010

Destroying Jobs At 2.5 Gallons Per Minute

From The American Thinker:

August 29, 2010

Destroying Jobs at 2.5 Gallons per Minute

By John F. Di Leo

The consequences of pernicious regulations

Growing up a century ago in sunny Calabria, on the shore of the Tyrrhenian Sea, my grandfather would never have dreamed that the common shrimp and calamari he had to eat every day would ever be considered a luxury; but for his grandson, growing up in Chicagoland sixty years later, a thousand miles from any coast, they certainly were. A luxury, a rare treat.

These little extravagances -- not the major ones like Rolls-Royces and Ferraris -- are important to one's enjoyment of life, and they represent, as much as anything else, the great opportunities of America. For here, even the broke, even the unemployed can indulge in a little luxury now and then. It can help us get through the day, help us endure life's little problems.

For one, it's the appetizer of fried calamari before the meal; for another, it's the dessert afterward. For one, it's splurging on a collectible to display in an étagère; for another, it's the solid brass door handle to install on the front door. Some might call one a waste of money; others might ask why something they think a necessity is on this list at all.

No matter; in a free country, we each have the right to our little extravagances. Perhaps that's one aspect of what the Founders meant by "the pursuit of happiness": our government was to be one that would let its citizens enjoy their lives, in their own way, without standing athwart such little personal desires.

...Unless, that is, your personal little extravagance happens to be a soothing shower at the end of the day -- using a showerhead that consumes more than 2.5 gallons of water per minute. Then the modern American nanny state steps in and declares, "You're wasting water, you sinner! Cease and desist!"

In 1992, the Department of Energy managed to promulgate a regulation requiring that showerheads use no more than 2.5 gallons per minute as an effort to save...water. This is a substance that's in such short supply that 75% of the planet is covered with it.

Now there are certainly areas of the world, even of America, with chronic or frequent water shortages -- California and Arizona, the inland deserts, the areas where government-run or government-managed utilities have failed to provide their residents with access to one of the most plentiful substances on earth. These specific areas can easily deal with such issues by passing ordinances requiring usage meters or timers or perhaps even banning the use of high-flow showerheads, where and when appropriate to do so.

But a federal limit, equally applicable nationwide, even in areas where there has never been, and never will be, such a shortage? What on earth for?

For eighteen years, this regulation was interpreted one way -- the limitation was per nozzle, so people desiring a more vigorous shower could simply install a couple more showerheads, or a multi-nozzle shower system. A specialty arose in the marketplace: the creative design of elegant and invigorating shower systems.

These systems are for the rich who want to be self-indulgent, for the business traveler or vacationer seeking a more exhilarating shower at his hotel, sure, but they're also for the working man who comes home caked in factory grime; for the plumber, carpenter, or electrician who spent his day between hot walls or floors of buildings under construction; for the roofer or window installer whose day was spent on scaffolding, sweating under the hot sun.

Who are we to judge them if they want to spend another hundred bucks on a fancier showerhead than the standard nozzle, plus another buck or two a month on the water bill? If they deem it worthwhile for themselves, and are willing to pay for it, who are we to say no, in a land in which the pursuit of happiness is an inalienable right?

In May 2010, the Department of Energy clarified their interpretation of the rule: it's 2.5 gallons, period. Not per nozzle, but per entire system. And they made it as clear as they could in the language of lawyers: by suing manufacturers who had dared defy the powers that be by obeying the interpretation that had held sway for eighteen years, instead of anticipating the interpretation that the Obama administration would suddenly decide upon.

In a heartbeat, every manufacturer, distributor, seller, and installer of high-flow showerheads across the country had to stop and check their product lines, shutting down assembly lines in factories, taking products off the shelves, putting a hold on construction and remodeling projects while plans were studied, while alternatives were sought, while substitutions were evaluated and selected.

As outrageous as this may be, at least it can serve for us as a microcosm of the dangers of the nanny state and of the utterly counterproductive nature of the Obama administration's idea of its role in the economy.

It's a new twist on the famed Broken Window Fallacy in economics. By banning one product -- essentially destroying the product's value in commerce at the stroke of a pen -- the government forces the manufacturing and installation communities to develop and manufacture a replacement that meets the new code. It would appear at first blush to create new jobs. Unfortunately, here in the real world, such a solution is infinitely worse than the alleged problem (wasting a little water) could ever have been. Consider:

In days of old, when a company decided to explore a redesign of their product, it would usually do so within its own country. Its own engineers on the third floor would study the blueprints, looking for opportunities for quality improvement, cost-savings, or style updates. Its purchasing department, on the second floor, would bid out raw materials, intermediate parts, and other components to other nearby vendors, again seeking cost savings without sacrificing the quality of the tried and true. Back by the shipping dock, the traffic department would negotiate a trucking rate so that the new vendor could ship the cargo for the same cost or less as the old vendor.

Saving money and improving the finished product this way, by finding a new supplier for this gasket or that valve, for this piping or that brass casting, is what keeps our productivity measurements ticking up every month. America is the king of such productivity improvements.

In any case, in the old days, they would still make the finished product in their own factory, albeit with a few different parts, with no other possibility crossing their minds. A Detroit automaker was and would remain a Detroit automaker; a Chicago television maker or Camden phonograph maker was just that and would never change.

No longer. Manufacturers and distributors engage in international trade without a second thought, so just as we have flung open the doors to exports, we have simultaneously flung open the doors to the possibility of importing as well. Such globalization is a wonderful process, without question. It has provided the world with greater access to the blessings of capitalism, freeing millions from their nations' formerly inescapable poverty, welcoming them into the unlimited potential of the free market.

But globalization can have its downside. Just as it broadens our sales possibilities, opening up new customers in new markets, it gives us new vendors to choose from, breaking down the walls of protection that once existed, so we are no longer shielded from the natural effects of our own destructive policies.

If the USA has a 38% effective business tax rate, when Ireland's is a mere 11%, might Ireland, enjoying such a lower tax burden, be able to offer just as good a gasket for a lower price?

If the USA has skyrocketing property taxes on factories, because politicians learned somewhere along the way that homeowners vote and businesses don't, might a country without the same burden of property taxes provide a temptingly competitive alternative vendor for that valve?

If the USA has such an infestation of plaintiffs' attorneys that our businesses have to employ an army of their own defense attorneys to fend them off, and fund costly liability insurance policies just in case, mightn't a country without such flaws be able to offer the same quality brass casting for a lower price?

Today, we outsource the materials, the intermediate components, the castings -- even the engineering, the R&D, the printing of brochures. As our government makes domestic functions and production ever more unnecessarily painful, our manufacturing community survives as it must: by outsourcing.

Worse still, once we outsource, we rarely go through the trouble of insourcing again. If at this moment in time it is cheaper to buy the casting from China, then even if that cost-benefit analysis should change in a year or two, it's rare that the buyer will switch back. Every vendor change has a cost; it's not done unless forced by the bottom line or by upper management. So at a time when outsourcing abroad is perhaps more tempting than usual -- more tempting than (hopefully) it will be a year or two hence -- this is no time to be pushing companies to open up more and more products to such potentially irrevocable sourcing reviews!

We are watching our industries exit our shores at a breakneck clip, as other countries welcome them in with taxation less burdensome, and an atmosphere less hostile, than our own. The United States, the engine of manufacturing innovation and capitalist growth for centuries, has ground to a halt.

Many businesses -- and their product lines -- can survive on reputation, quality, and sheer inertia for years, long enough perhaps to wait out the current crisis, ready to enjoy the boom that will surely result when current policies are reversed and America becomes business-friendly again. If only we don't make it worse unnecessarily; if only we don't kick them all while they're down.

But that's what this administration is doing, day after day, in industry after industry. Car salesmen and technicians had a slow year in 2009 until their own president ordered some three thousand dealers shut down completely. The roughnecks in the Gulf of Mexico were hard at work on oil rigs until their own president capriciously banned offshore drilling this summer. Those multi-nozzle showerhead makers were sputtering along through the recession until their own Department of Energy turned off the water completely.

In the quest for improved productivity, American manufacturers will always bid out their parts, their engineering, and their finished products. It's why they succeed in the first place. But this is no time to push them even harder, no time to keep reminding every purchasing agent, every engineer, every investor, of that thought lurking in the back of their minds: "You know, it really would be cheaper to just close up completely and move offshore."

It's not too late; we can fix this mess. A couple of years of responsible policies can undo most of the recent damage. But to grow a stronger manufacturing sector, we have to have something to work with. We'll be able to grow it only if it hasn't been killed outright before we get our chance.

John F. Di Leo is an international trade compliance trainer based in Chicago. His columns regularly appear in Illinois Review.

Saturday, August 28, 2010

Un_Natural Claims: Litigation Industry Usurps Regulators' Role; Credible Claims Suffer

From The CATO Institute and Trial Lawyers

Trial Lawyers Inc. Update No 9, August 2010


Litigation Industry Usurps Regulators’ Role; Credible Claims Suffer

Environmental litigation is deeply rooted in Anglo-American law: the common-law tort of nuisance, which emerged in twelfth-century Britain,[1] allows individuals to recover compensation for “real injuries” to their “lands.”[2] Some modern environmental litigation, most prominently that which seeks redress for injuries generated by the oil spill from BP’s Gulf of Mexico Deepwater Horizon rig, falls well within this historical paradigm. Images of oil washing up on Gulf beaches and bayou marshes demonstrate obvious coastal harms, and few would maintain that owners of beachfront property and others directly injured by the oil leaked into the Gulf do not have a basis for making claims against the company or companies responsible.

But much of the litigation sure to flow from the spill is of a very different character. How should we think about suits charging BP with securities fraud for not making clear its safety risks? What about suits alleging pension fraud for not making clear the financial threat to the company’s retirees posed by its Gulf of Mexico operations? And what about suits that target not just BP but all oil companies, not for oil actually spilled but for the threat of rising sea levels resulting from global warming, itself indirectly caused at least in part by the use of fossil fuels?

Modern environmental litigation includes each of these types of lawsuits; and very real and valid claims—such as those inevitably facing BP—are, in some cases, less attractive to avaricious trial lawyers than speculative claims related only tangentially, if at all, to actual injury. Lawyers have already launched such claims, even though the actual damage bill has not yet been tallied. Texas’s Mark Lanier is an asbestos lawyer who became a celebrity of sorts when he won a $253.5 million jury verdict in the first case to go to trial alleging injuries caused by Merck’s blockbuster painkilling drug, Vioxx (the verdict was later reversed on appeal).[3] Lanier has now announced his intention to file class actions and other lawsuits claiming not only direct losses from the Gulf spill but in pension and securities investments resulting from declines in BP’s share price as the spill’s huge cost became clear.[4]

In addition, lawsuits alleging health injuries stemming from oil exposure will drag on for decades, some analysts expect.[5] If the history of mass toxic torts like Vioxx, fen-phen, and asbestos is any guide, many, if not most, of the lawsuits in this latter class of cases will be dubious. High-profile class-action and mass-tort attorneys—whom we like to call Trial Lawyers, Inc.—rely on the unique rules of American law to overwhelm corporate defendants with so many claims that companies are unable to defend against them all in court and must instead reach “mass settlements” that invariably compensate undeserving plaintiffs, under-compensate genuinely injured victims, and give the lawyers a healthy cut of the overall proceeds.[8] If courts are the primary locus for recovery and remediation of the Gulf oil spill, genuinely injured people and businesses are likely to suffer the same disappointments that true asbestos victims have.


Long before we had regulatory agencies like the Environmental Protection Agency (EPA), the courts were the preferred government forum for remedying environmental injuries. Our free-market, property-based legal regime treats commerce as advancing not only the parties’ mutual benefit but society’s in general. But the law has also long recognized the cost of some economic activity to individuals not party to the exchange, as when a smokestack emits fumes that blow onto neighbors’ property. Thus, there is a common-law tort of nuisance to deal with environmental pollution, just as there is a civil action available in the case of physical assault or libelous speech. Indeed, the tort of nuisance is so well entrenched in American law that the U.S. Supreme Court has given it constitutional weight.[9]

In traditional nuisance suits, an individual has had to demonstrate harms directly flowing from another’s actions. The remedy sought in such cases was typically economic damages to make the injured property owner whole. If, however, the harms were dispersed and did not peculiarly or disproportionately harm a particular party, lawsuits alleging a “public nuisance” would often be filed. Many of these would seek injunctive relief to prevent the offending party from continuing the harmful activity. In the pre-regulatory era, such suits were effectively devices to force municipalities to remove trees from roadways, for example, or to stop companies from discharging effluents into public waterways or emitting unpleasant vapors and gases that disturbed nearby residents.

But traditional nuisance suits do not manage many environmental harms well. Injuries are sometimes too dispersed to be remedied by damage awards to individuals, and causation too speculative or remote to meet historical legal norms. Lay juries are generally ill-equipped to make scientific judgments on complex environmental questions. In addition, tort law is necessarily retrospective, not prospective: plaintiffs must show that they have actually been injured and that the party being sued caused the injury. Because it makes sense to prevent environmental injuries, instead of addressing them after they occur—and because unpredictable civil litigation is a crude regulatory device at best—modern states, including the United States and others with advanced economies, have developed regulatory regimes that place boundaries around economic activities that risk generating environmental damage.


Notwithstanding the general trend toward regulation, environmental activists, upset that their agenda has not been fully adopted by legislatures or regulatory bodies, have tried to use the courts to achieve their desired results. Some such efforts are at least defensible as challenges to the decisions of regulatory bodies. For example, in Massachusetts v. EPA, a group of states, local governments, and environmental groups sued the EPA to force it to regulate the emission of carbon dioxide and other greenhouse gases (see box "THE SUPREME COURT GIVES A GREEN LIGHT"). The lawsuit, whatever its defects, at least implicitly recognized the agency as the appropriate body for addressing man-made pollution contributing to climate change.


In Massachusetts v. EPA, a group of state governments, local governments, and activist environmental organizations led by Massachusetts sued the U.S. Environmental Protection Agency (EPA). The lawsuit challenged the agency’s 2003 conclusion that carbon dioxide was not an “air pollutant,” as the Clean Air Act Amendments of 1990 defined the term, and thus did not fall within the agency’s jurisdiction. The U.S. Supreme Court, in 2007, disagreed, dividing 5–4.[6] Chief Justice Roberts issued a strong dissent arguing that the plaintiffs lacked legal standing to sue in federal court because they had not adequately alleged injuries that they had already suffered from climate change.[7] Although a narrow regulatory-powers decision, the court’s ruling that the plaintiffs in the case had standing to sue over global warming was a powerful shot in the arm for other climate-change lawsuits.

Many other lawsuits, however, have sought to use tort law to supplant rather than force regulation, often by seeking injunctive relief. Such suits seek to circumvent statutory and regulatory schemes and turn the courts into alternative environmental regulators. In Cooper v. Tennessee Valley Authority, North Carolina attorney general Roy Cooper alleged that energy plants in Alabama, Kentucky, and Tennessee of the federally owned Tennessee Valley Authority (TVA) created a public nuisance for North Carolina.[10] In response, U.S. District Court Judge Lacy Thornburg issued an injunction mandating that four TVA plants install emission controls, at a cost of over $3 billion, notwithstanding that Alabama and Tennessee law explicitly authorized the plants to operate without such controls.[11] Sensibly, on July 26, 2010, the Fourth U.S. Circuit Court of Appeals overturned Thornburg’s injunction. The court noted that the federal Clean Air Act already had extensive statutory procedures that North Carolina could use to petition its case, that “Congress in the Clean Air Act opted rather emphatically for the benefits of agency expertise in setting standards of emissions controls,” and that Thornburg’s injunction would have “encourage[d] courts to use vague public nuisance standards to scuttle the nation’s carefully created system for accommodating the need for energy production and the need for clean air.”[12]

In Connecticut v. American Electric Power, filed in 2004 on behalf of eight states, the City of New York, and three land trusts, political operatives are seeking to get courts to regulate companies directly by forcing them “to cap and then reduce their carbon dioxide emissions,” which, the suit alleges, are “contributing to global warming.”[13] The Second U.S. Circuit Court of Appeals reversed the trial court’s decision to dismiss the complaint as a nonjusticiable political question, rejected the claim that the public-nuisance claim was displaced by the Clean Air Act, and allowed this lawsuit—which is far more speculative than the one rejected by the Fourth Circuit in Tennessee Valley Authority—to proceed. Leading the charge in this litigation is Connecticut attorney general Richard Blumenthal, who unabashedly exclaimed, “Our legal fight is against power companies that emit a huge share of our nation’s CO2 contamination, but it will set a precedent for all who threaten our planet.”[14] Similar lawsuits seeking to regulate companies allegedly linked to global warming have been filed by California (in a case that has since settled) and a small village on a boundary island in Alaska (in a case still pending).[15]

In such suits, activist groups—or state attorneys general seeking their support—are trying to make an end run around regulators or legislatures to achieve policy goals. One should not assume that pecuniary motives are absent from such suits: in addition to earning themselves substantial publicity, the state AGs often receive the largesse of lawyers involved in the form of direct or in-kind campaign assistance; and trial lawyers get to enlist the state attorneys general to press for judicial rulings that would make future litigation more profitable. In some cases, they get hefty contingency fees for doing the states’ work.


Environmental litigation is rife with cases in which liability claims proceed, though lacking traditional legal norms like injury and causation. In Madison County, Illinois—an infamously pro-lawsuit jurisdiction, which the American Tort Reform Association has dubbed a “judicial hellhole”[16]—the Baron & Budd and Korein Tillery law firms (each featured in previous editions of Trial Lawyers, Inc.) have launched lawsuits alleging injury from the widely used pesticide atrizine, despite a 2006 EPA finding that the product posed no health hazard.[17]

Similarly questionable litigation that conflicts with federal regulatory judgments, also involving Baron & Budd as well as New York mass-tort firm Weitz & Luxenberg, has targeted oil companies for adding the oxygen-rich compound MTBE (methyl tertiary butyl ether) to gasoline. Oil companies began using the chemical—which reduces smog, lowers the total amount of toxic emissions, prevents “knocking” in engines, and serves as a replacement for lead—in 1979; they accelerated their use of it after Congress not only authorized but encouraged it in the Clean Air Act Amendments of 1990.[18] Congress had reached the policy judgment that adding MTBE to motor fuel produced a net benefit, even though the chemical can affect the taste of drinking water if it enters the water supply. In its 1997 Drinking Water Advisory, the EPA determined that “there is little likelihood that MTBE in drinking water will cause adverse health effects” in observed concentrations.[19]

Nonetheless, more than seventy lawsuits have been filed against oil companies for using MTBE, many of them led by states and municipalities alleging a public nuisance and seeking money for facilities to eliminate the additive from drinking water (with a large chunk of the proceeds going to the contingency fees of plaintiffs’ lawyers hired to handle the cases).[20] In May 2008, several oil companies settled suits, for $423 million,[21] and in October 2009, New York City won the first of these cases to come to trial, hitting Exxon-Mobil with a $104.7 million verdict.[22] (Oil companies ceased using MTBE in 2006,[23] in reaction to the litigation and Congress’s failure to shield companies from liability.)


In January, the Securities and Exchange Commission (SEC) voted along party lines to force publicly traded companies to disclose potential liabilities relating to climate change—including the risk that new environmental laws might curtail profits and that financial losses might stem from increasingly volatile weather patterns.[32] Charges of politicizing securities regulation to promote an environmental agenda flew,[33] but the true beneficiaries of this ruling are trial lawyers. With substantial civil liability flowing from allegedly false disclosures or failures to disclose material information—either under traditional “fraud on the market” theories or new, heightened requirements contained in the 2002 Sarbanes-Oxley regulatory regime[34]—the SEC guidance enables Trial Lawyers, Inc. to add environmental lawsuits to its securities-litigation business line.

In some environmental cases, the injury is clear but the chain of causation much less so. For example, in Comer v. Murphy Oil USA,[24] veteran asbestos lawyer F. Gerald Maples is alleging that the defendant oil and energy companies are responsible for property damage on the Gulf coast caused by 2005’s Hurricane Katrina, under the theory that the hurricane’s severity was attributable to global warming, for which the companies are responsible.[25] One prominent mass tort litigator, Russell Jackson, characterized the suit’s rationale as “the litigator’s equivalent to the game ‘Six Degrees of Kevin Bacon.’ ”[26]

Even if one accepts the argument that higher global temperatures lead to more severe weather patterns, it hardly follows that this hurricane was caused or exacerbated by a temperature rise, at least as causation has traditionally been applied in a legal context.[27] Moreover, the companies in question account for only a small fraction of the global carbon dioxide emissions that scientists have linked to global warming (see graphs below).[28] China exceeds the United States in carbon dioxide emissions, and the non-OECD or developing economies produce more greenhouse gases than all the developed nations of the world put together.[29] The companies being sued in Comer might have contributed to global warming, but it hardly makes sense to suggest that they caused it—any more than it makes sense to hold Uncle Eddie responsible because he drives an SUV or Aunt Betty because she flew to Florida for the holidays.

As the Second U.S. Circuit Court did in Connecticut, a panel of judges on the Fifth Circuit reversed the district court’s decision that the Comer case posed a nonjusticiable political question,[30] though that decision has now been vacated by a broader Fifth Circuit panel.[31] Presumably, the attorneys pushing this dubious lawsuit will try to get the U.S. Supreme Court to hear the case on appeal.




The very real damage wrought by the BP oil spill highlights the need for a mixed legal and regulatory approach to environmental problems. Regulatory standards are essential to preventing future disasters, as well as to limiting smaller but still-significant harms wrought by modern industrial processes. Liability as well is justified when parties have been directly injured by environmental polluters, in the BP case as well as others. Although the Oil Pollution Act of 1990 places some limits on oil-spill-related liability, BP has announced that it is waiving such limits in this case.[35] As leading libertarian legal scholar Richard Epstein, someone generally critical of lawsuit abuse, attests, “[T]he legal system should never allow self-interested parties to keep for themselves all the gains from dangerous activities that unilaterally impose losses on others.”[36]

For environmental disasters like the BP spill, however, litigation can be a crude tool for compensating those genuinely injured. Lawyers’ fees soak up as much as a third of the proceeds. And actual payouts can be delayed for years as lawyers fight in court; it took nineteen years for the litigation stemming from the Exxon Valdez oil spill to be resolved.[37] Indeed, the Obama administration’s decision to pressure BP to set up a $20 billion fund[38] to pay potential claimants implicitly acknowledges the cost and delays of traditional litigation to remedy such massive injuries. The fund’s administrator, Kenneth Feinberg, won plaudits for his management of the September 11 Victims Compensation Fund,[39] and early indications are that Feinberg is working aggressively to give rapid payouts to oil-spill victims in exchange for their agreeing to surrender future liability claims.[40] Let’s hope that Feinberg lives up to his impressive record for efficiency, though not at the cost of denying those most seriously affected their day in court.

It is the character of Trial Lawyers, Inc. today to ignore legitimate claims arising from actual harm to the environment, and the lives that depend on it to be clean and safe, in favor of far more speculative claims extrapolated from theory. Lawsuits that cannot demonstrate tangible injuries, that rest on attenuated theories of causation, or that allege tort injuries from conduct authorized by legislative and regulatory judgments have no place in the courts. Circumventing the democratic process may appeal to those who simply have no patience for public debate, but the courts are hardly the appropriate forum for resolving complex international policy dilemmas like global warming.


See C. H. S. Fifoot, History and Sources of the Common Law: Tort and Contract 3-5 (1949) (dating the roots of nuisance back to ancient writs in twelfth-century England), reviewed by Richard O. Faulk & John S. Gray, Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, 2007 Mich. St. L. Rev. 941 (2008).

See William Blackstone, 3 Commentaries, *216–17.

See Merck & Co. v. Ernst, 296 S.W.3d 81, 90, 100 (Tex. App. 2009) (reversing judgment in Ernst case, with initial $253.5 million jury verdict); Heather Won Tesoriero, Merck Loss Jolts Drug Giant, Industry, Wall St. J., Aug. 22, 2005, at A1 (covering original verdict)..

See Dionne Searcey, Lanier Seeks to Repeat Courtroom Success, Wall St. J, June 18, 2010; Press Release, Oil Spill Lawsuit, Lanier Law Firm,; Press Release, The Lanier Law Firm Investigating 401(k) Retirement Plan for BP Employees, Lanier Law Firm,

See Daniel Fisher and Asher Hawkins, BP’s Legal Blowout,, July 14, 2010,

See Massachusetts v. E.P.A., 549 U.S. 497, 535 (2007).

See id., at 539-49 (Roberts, C.J., dissenting).

See, e.g., CSX Transportation v. Gilkison, No. 05-cv-202, (N.D. W. Va. July 5, 2007) (Am. Compl. ¶¶ 110-52); Jonathan D. Glater, Many Silica-Damage Plaintiffs Also Filed Claims Over Asbestos, N.Y. Times, Feb. 5, 2005, at C1 (citing Claims Resolution Management Corporation) (“[O]f 8,629 [silicosis] plaintiffs . . . 5,174 had already filed asbestos claims.); Alison Frankel, The Fen-Phen Follies, Am. Law., Mar. 1, 2005.

See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1031–32 (1992) (looking to “background principles of nuisance and property law” to determine whether a regulatory taking passes muster for Fifth Amendment purposes).

See State ex rel. Cooper v. Tenn. Valley Auth., 593 F.Supp.2d 812, 815 (W.D.N.C. 2009), rev’d, 2010 WL 2891572 (4th Cir. July 26, 2010) .

See id. at 831–34; 2010 WL 2891572, at *13 (observing that “TVA’s electricity-generating operations are expressly permitted by the states in which they are located”).

See 2010 WL 2891572, at *1, 9.

See Conn. v. Am. Elec. Power, 582 F.3d 309, 314, 352 (2d Cir. 2009).

See Press Release, Connecticut Attorney General’s Office, Attorney General Praises Appeals Court Ruling Reinstating Global Warming Lawsuit (Sept. 21, 2009), available at

See State ex. rel. Lockyer v. General Motors Corp., No. 05-755, 2006 WL 2526547 (N.D. Cal. Sept. 20, 2006), dismissed (Sept. 17, 2007); Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009).

See American Tort Reform Foundation, Judicial Hellholes (2009-2010),

See Justin Anderson, Ban on Atrazine Would Stagger Agriculture, Experts Say, Legal, July 16, 2010,; Triazine Cumulative Risk Assessment, Environmental Protection Agency (Mar. 28, 2006), available at

See Jad Mouawad, Oil Giants to Settle Water Suit, N.Y. Times, May 8, 2008.

See Concerns About MTBE, Environmental Protection Agency, (last visited Aug. 2, 2010).

See Thom Weidlich, Exxon Found Liable for Fouling New York City Water with MBTE, Bloomberg, October 20, 2009,

See Mouawad, supra note 18.

See Weidlich, supra note 20.

See Mouawad, supra note 18.

Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), vacated by 607 F.3d 1049 (May 28, 2010).

See id. at 859.

See Posting of Walter Olson to, (Oct. 22, 2009, 12:14 EST).

In tort law, a plaintiff’s injury must have been proximately caused by a defendant. A proximate cause is one “which, in a natural and continuous sequence, unbroken by any intervening cause, produces injury, and without which the result would not have occurred,” i.e., “the primary or moving cause.” Black’s Law Dictionary 1225 (6th ed. 1990).

See U.S. Energy Information Administration, International Energy Outlook 2010—Highlights, (last visited Aug. 2, 2010)

See id.; Union of Concerned Scientists, Global Warming: Each Country’s Share of CO2 Emissions, (last visited Aug. 2, 2010).

See Comer, 585 F.3d at 860.

The full Fifth Circuit vacated the panel’s judgment for en banc consideration, 598 F.3d 208 (Feb. 26, 2010); it was unable to meet a quorum to reconsider the case en banc because eight of the court’s judges recused themselves on the grounds that they each owned stock in at least one of the 150 companies targeted in the litigation, so the panel decision remained vacated, and the appeal was dismissed, 607 F.3d 1049 (May 28, 2010).

See Kara Scannell & Siobhan Hughes, SEC Votes for Corporate Disclosure of Climate Change Risk, Wall St. J., Jan. 27, 2010.

See Commissioner Kathleen L. Casey, Speech by SEC Commissioner: Statement at Open Meeting—Interpretive Release Regarding Disclosure of Climate Change Matters, Jan. 27, 2010,

See generally Henry N. Butler & Larry E. Ribstein, The Sarbanes-Oxley Debacle: What We’ve Learned; How to Fix It (2006).

See Richard A. Epstein, BP Doesn’t Deserve a Liability Cap, Wall St. J., June 16, 2010.


See Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008).

See Jeff Mason, BP Agrees to $20 Billion Spill Fund, Reuters, June 17, 2010, available at

See, e.g., James R. Copland, Tragic Solutions: The 9/11 Victim Compensation Fund, Historical Antecedents, and Lessons for Tort Reform (Jan. 13, 2005), available at

Feinberg Says BP Fund Will Be Generous, Better Than Lawsuits, Bloomberg Business Week, July 15, 2010, available at


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Thursday, August 26, 2010

How To Regulate America Out Of Business

From The American Thinker:

August 27, 2010

How to Regulate America Out of Business

By Jeffrey Folks

Vladimir Lenin had a much simpler time of it. Following the October Revolution, he swiftly nationalized nearly all industry, commerce, and agriculture in the Soviet Union. Those who opposed the takeovers, such as those millions of small landowners known as the kulaks, were executed or sent to die in Siberia.

American leftists are far more civilized. Rather than send landowners and stockowners to Siberia, they simply raise federal and state taxes to combined marginal rates of 60% and subject the rest to estate taxes after the owner dies. If the owner fails to pay up, he is marched off to prison. Meanwhile, corporations are subject to another form of control: the tyranny of activists on government agencies that view the private sector as the means of social change.

The August 25 vote by the Security and Exchange Commission to allow large shareholders access to proxy nominations for board members is a perfect example. In effect, the new regulation encourages environmentalist and human rights groups, as well as institutional investors, labor unions, and hedge funds, to nominate their own representatives for corporate boards. If elected, many of these board members would promote activist agendas that conflict with the interests of the stockholders. Instead of voting to maximize profits, such representatives would support narrow ideological goals. How would it be possible for a representative of a coalition of Greenpeace and other environmentalist groups to serve on the board of Chevron or Massey Energy? Such a representative would probably not be aligned with shareholder interests.

Perhaps this is the intention of the SEC in passing the proxy ruling. After all, liberal Democrats have been trying for decades to seize the profits of the more successful American corporations. The Carter "windfall profits tax" was just one such attempt. The long-running Clinton-era lawsuit against Microsoft was another. In 2007 Hillary Clinton famously screeched that she'd "like to seize the profits of Exxon Mobil" and redistribute them to alternative energy companies. Now not even Google is safe.

Proxy reform is just one among scores of anti-business initiatives being carried out by unelected bureaucrats within government agencies. Thousands of other changes are buried in the fine print of the recently passed healthcare and financial regulation acts. By design, none of these policy changes have received an adequate public airing.

One example is an obscure rule appended to the financial regulation bill passed in July. With no discussion or public comment, Democrats slipped in a requirement that energy and mining companies disclose payments to foreign countries for oil or mineral rights. This requirement puts American companies at a disadvantage to others because it hampers their ability to bid competitively on foreign leases.

Most of the world's large undeveloped oil fields are controlled by the governments of developing countries in Africa, Latin America, and the Middle East. There is fierce competition between American oil companies and those of China, as well as those of Europe, India, and Latin America, for these prized lease rights. Why would Congress pass a law that puts our companies at a disadvantage when they negotiate for drilling rights? There is only one answer: the Democratic Congress does not really care about the success of American corporations. Or if it does care, it only cares about bringing them to heel.

It is not just energy companies that are the target of Washington's activists. Earlier this year, the Federal Trade Commission won a consent decree forcing Intel to pay a billion dollars in fines and potentially hampering that company's competitiveness in the global technology market. Like Exxon and Massey Energy, Intel is one of America's most successful corporations. That may well be the reason it was targeted by the left.

The irony is that even as the Obama administration has unleashed activist regulators on American corporations, that same administration is grumbling that corporations are not doing enough to spur economic growth. It's like cutting someone's throat and complaining they don't speak up.

The truth is that the current administration is not really interested in creating jobs, nor is it interested in promoting economic growth or the corporate profits upon which growth depends. The Obama administration is dominated by leftist ideologues whose obsession is regulation of the private sector. The ideologues who now manage the EPA, FTC, FCC, and SEC are guided by a single purpose: to establish state control of the entire U.S. economy, and to do so at whatever cost to the American people. In order to achieve this goal, they are willing to accept a 17% real unemployment rate as the "new normal." They are willing to see foreign competitors, China in particular, overtake American leadership in the technology, healthcare, and energy sectors. They are not just willing to accept the decline of American power, they are intent on bringing it about.

For those who fantasize about "one world" living in "harmony with nature," the crippling of American business may seem like a good plan. In place of spacious suburban homes, they advocate densely packed urban dwellings. In place of cars and SUVs, they promote biking or walking. Instead of treating diseases with new drugs and surgical procedures, they endorse second-generation generics or just letting patients die. Instead of defending ourselves with modern weapons, they speak of negotiating with our enemies, as if North Korea or Iran have shown a genuine interest in negotiation. This, in essence, is the left's vision of America in the 21st century.

The left cannot understand why the American people do not share their vision of national decline. Those who resist ObamaCare are labeled "obstructionists." Those who resist Islamification are called "racists." Those who question global warming are called "deniers," as if opposition to the fiction of man-made global warming were somehow akin to denial of the historical fact of the Holocaust. The left believes that its own agenda -- the eradication of private property and the destruction of America as a global superpower -- is a moral crusade of overwhelming importance. This is why individuals such as Nancy Pelosi become practically apoplectic ("Are you serious?" she responded, when asked about the constitutionality of ObamaCare) when their behavior is questioned.

For conservatives, there is only one rational response to the current assault on American liberty. That is to remove all leftists from office and to guard against their return. Every American needs to understand that the left is not simply attempting to "reform" our institutions: it is swiftly transforming America from a capitalist democracy into a Marxist totalitarian state. Only a complete repudiation at the polls will stop them.

Dr. Jeffrey Folks taught for thirty years in universities in Europe, America, and Japan. He has published many books and articles on American culture and politics.

State Attorneys General To Impose Cap And Trade On Nation

From The American Thinker:

August 26, 2010

State Attorney Generals to impose cap & trade

Aaron Gee

Anthropogenic Global Warming (AGW) fetishist are in crisis. Hard scientific evidence is mounting that their exalted theory should go the way of the dodo. The "scientists" in the community continue to refuse to release data so that it can be verified and attack skeptics. AGW theory is getting such a black eye that it's adherents are refusing to debate the facts in public. Opinion has started to change, especially in the aftermath of climategate. Taken together, this volatile mix of facts ensures that cap and trade legislation is dead.

Since cap and trade is the culmination of the AGW cultists theory, it's death is being mourned and the hope is that the EPA will impose the economy killing rules. Obama's plummeting poll numbers combined with falling employment make that unlikely in the near term. Since the legislative option is off the table, and the administration unwilling to impose such a disastrous policy by fiat, the only hope for cap and trade is the courts.

The attorney general of Connecticut filed suit against power companies for their carbon dioxide emissions in 2004. Joined with Connecticut in this lawsuit are the states of New York, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin, and municipality of New York City. The intent of the suit is to hold the named power companies "jointly and severally liable for contributing to an ongoing public nuisance, global warming". The companies in question are responsible for a mere 2.5% of the global man made carbon dioxide emissions. Investor's business daily has a good piece on the lawsuits titled " Climate Change Lawsuits Heat Up, Led By An End Run In Connecticut".

The attempt to bypass the Congress as well as the people is a classic case of the abuse of power that our founding fathers were trying to prevent when they were designing the republic. The courts were never designed or intended to institute policy, but in this case we see fishing attorney generals with their bait cutting trial lawyers attempting to do just that. If they succeed it will provide a new gold rush for attorneys, just like judgments against Dow and silicone breast implants were a gold rush for attorneys in the early nineties. Unlike the silicon breast implants fiasco, every person that uses energy will pay the price, not just silicone manufacturer stock holders**.

This is why the electoral contests that are ignored by a lot of voters are so important. The attorney generals in Connecticut, New York, Vermont, Rhode Island, California, Iowa, Wisconsin are all on the ballot this year. Tea Party protesters should get involved in these contests. After all, the attorney generals in those states are fighting to have a defacto tax imposed by the judicial system on all Americans based on an inconclusive theory.

**Decades of scientific research concluded that the implants did not cause cancer, or auto immune issues. Those facts didn't help Dow Corning, which was in chapter 11 protection for nearly a decade.

Aaron Gee is a US based IT consultant whose personal political blog can be found at

Posted at 12:06 AM

Friday, August 20, 2010

War On Food McEscalating

From Red State:

Posted by Caleb Howe (Profile)

Thursday, August 19th at 7:30PM EDT

I like bacon. I know, courageous stance right? Bacon is one of the delights of life on this earth. It’s a universal good, a boon; manna.

But like any universal good on this earth, there are those who disapprove. PETA, for example, and for obvious reasons. Luckily, I don’t see PETA successfully instituting global bacon sharia anytime soon. On the other hand, they may not have to. Just as there are universally good things in this world, there are universally stupid things. I call them progressives.

And guess what they’re coming for next? Your kids.

Have you read Jonah Goldberg’s Liberal Fascism? If not … why are you so communist? The smiley face with the Hitler mustache on the front cover is a reference to material in the book. The idea being that where fascism intersects with American life, it does so under the guise of do-goodery. It’s nice. Smiley-face fascism. (Not be confused with the smiley on the cover of Kos’ new book, which is a reference to nu-uh-ery.) So maybe we call the war on food “smiley-face eugenics”. Too far? Well let’s see.

So-called progressives, or liberals as they’re known in the wild, want to help you, you see. You being the poor, dumb, fat, probably racist, Ugly American™ that you are. It takes a village to fix what ails you, and why? Because you don’t know best. They know best.

Wear your seat belt! Put on that helmet! Don’t drink that, drink this. Don’t smoke! You’ll poke your eye with that thing! That is not appropriate behavior for two consentin … ha ha, just kidding. Bedroom is off-limits. But you know what’s not off-limits to the nannies? Happy Meals. Yep. That ancient cardboard (save the whales!) scourge has finally met its match in the form of city councils and “concerned” citizens groups. At issue? The toys.

Yes, kids. Democrats want to take away your toys. Hey, you don’t vote. So suck it.

As reported in the Christian Science Monitor, San Francisco is considering doing away with the Happy Meal. San Fran, or Moscow as its known in the wild, wants to help you, you see. To not be fat. In fact that may be their new city motto: Don’t Be Fat. Not quite as catchy as “Gold in Peace, Iron in War” but … war is bad? Mmmkay?

This wouldn’t be the first such action in California. Santa Clara, California recently banned restaurants in unincorporated areas from offering toys with meals that have some amount of calories they arbitrarily assessed as EEVVIIILLLLLL. I guess if you’re in an incorporated area you’re less prone to being lured. Did I mention the luring?

Yes, if you read the news reports the word comes up quite a bit. McDonald’s is “luring” children to unhealthiness with the siren song of Shrek watches and grease. A potent lure indeed (I caught a ten pound bass with the very thing). The source of the creepy imagery of a trench coat-bedecked Ronald McDonald enticing innocent children into his unmarked van, there to ply them with McNuggets and bendy straws seems to be this statement put out by citizen “watchdog” group the Center for Science in the Public Interest (CSPI) back in July, as reported by at the time. Relevant quotable:

“… using toys to lure small children into McDonald’s is unfair and deceptive marketing and is illegal under various state consumer protection laws.”

Lure. Nice. Now, perhaps you think I’m reading too much into that. Surely they don’t mean to compare McDonald’s to Chester the Molester with that word. Right? From the same statement:

“McDonald’s is the stranger in the playground handing out candy to children,” said CSPI litigation director Stephen Gardner. “McDonald’s use of toys undercuts parental authority and exploits young children’s developmental immaturity—all this to induce children to prefer foods that may harm their health. It’s a creepy and predatory practice that warrants an injunction.”

Got that? Creepy. Predatory. Stranger in the playground.

Artist’s rendering. If you see this man, seek shelter and celery. LOCALLY GROWN celery.

Also instructive is the assertion that McD’s is undermining parental authority. Note the subtle abdication of that very authority, and all personal responsibility, just by that remark. Kids are fat because toys lure them, and parents are powerless. Since you, you weak fat Americans, are too weak and fat to decide what to feed your kids, we will do it for you. Since you can’t say no on a case by case basis, we’ll just take away the option.

Taking away options, in the end, is what progressives are the very best at. Because some children are obese, and because some parents give them too many McNugget meals, well we’ll just take away the option. Problem solved! … Or is it?

Toys as a prize are certainly a value-add to any meal. Even steak. (Trust me.) But which parent among you thinks your kids would stop wanting chicken nuggets just because the latest “Eat Pray Love.” bauble isn’t included? Anyone? And when those toys are gone, are the “never say no” parents suddenly going to be empowered, the spell of plastic toys in plastic bags finally broken and their will to govern the health of their children finally set free?


They want your salt. They want your bacon. They want your toys. And soon enough, they will want the nuggets, too. McDonald’s CEO Skinner fired back at CSPI in July. And yet here we are again, potentially facing a fresh ban in San Francisco. Where next?

Where will this societal engineering end? There’s no obvious final line to cross in this way of thinking. Which bendy straw will break the camel’s back? How far, ultimately, is too far for legislating healthiness? Why not get rid of Ronald? Kids like clowns right? Well .. some do. What about breakfast cereal? How long until Frankenberry sits in chains? Until the Trix rabbit is put to sleep? Are these not enticing to children?

Come to think of it .. what about bright colors? Contests? Giveaways? Scrap all that too. Hell, even the name. HAPPY Meal? So you’re telling kids they might be happy? OUTRAGE!!

Here’s a preview of the Happy Meal to come:

Michelle Obama has declared a war on fat. Because fat kids, you see, are a threat to national security. New York continues the assault on salt, as does the FDA. The race to “perfect” is underway. Because the fatcat … err, thincats in Washington and in your city offices, well they just know better than you. It may take a village to raise a child, but it takes an army of bureaucrats to raise a THIN child. So say the progressives.

What say you? Me? I say, those would sacrifice liberty to wear a size three deserve neither and will lose um … growth.

But now I’ve gotta run. I’m having bacon for dinner. And maybe a side of BUTT THE HELL OUT OF MY LIFE Legislative Update


Table of Contents


■S. 3727: STALKERS Act of 2010


S. 3727: STALKERS Act of 2010

Sponsor: Klobuchar (D - MN)

Official Title: A bill to amend Title 18, United States Code, with respect to the offense of stalking.


8/5/2010: Introduced in Senate

8/5/2010: Referred to Senate Judiciary Committee

Commentary: This bill supersedes S. 3651, which is also sponsored by Senator Klobuchar. It would rewrite and supplement 18 U.S.C. § 2261A(1), which presently makes stalking illegal when the prohibited conduct involves "travel[] in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or enter[ing] or leav[ing] Indian country" and when prohibited conduct occurs "that uses the mail, any interactive computer service, or any other facility of interstate or foreign commerce." As § 2261A largely does, S. 3727 would make it unlawful to engage in a course of conduct "with intent to kill, physically injure, harass, or intimidate a person . . . that causes or attempts to cause bodily injury or serious emotional distress." Neither current law nor this bill defines the vague terms "harass" and "intimidate." In addition, the bill uses a tort-law reasonableness standard, which is not defined in the bill, to criminalize conduct that "occurs in circumstances where the conduct would be reasonably expected to cause the other person serious emotional distress" even where the victim is unaware of that behavior. In specified circumstances, this bill would also add to the punishment set forth in 18 U.S.C. § 2261(b) for violating § 2261A. If (1) the conduct involves the violation of a protective order and the victim is under the age of 18 or over the age of 65, (2) the offender is 18 years old or older, and (3) the offender knows or should know that the victim is under the age of 18 or over the age of 65, the term of imprisonment that may be imposed would be increased by up to 5 years.

Wednesday, August 18, 2010

Bailout For Bureaucrats

From The CATO Institute:

Bureaucracy Gets a Bailout

by Jim Powell

Jim Powell is a senior fellow at the Cato Institute and the author of FDR's Folly, Wilson's War, and Bully Boy, among other books.

Added to on August 17, 2010

This article appeared in The Philadelphia Inquirer on August 17, 2010.

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In voting to spend $10 billion to save school teachers' jobs last week, Congress bailed out government employees who have fatter paychecks and pensions than those doing the same kind of work in the private sector. The money came on top of hundreds of billions of dollars in government-employee bailouts that preceded it, and it won't be the last such bailout, either.

According to the U.S. Bureau of Labor Statistics, government employees make more money than private-sector workers in 83 percent of comparable occupations. These include broadcast technicians, budget analysts, chemists, civil engineers, information-systems managers, cooks, crane operators, dental assistants, economists, electrical engineers, financial analysts, graphic designers, janitors, landscape architects, laundry workers, librarians, machinists, mechanical engineers, office clerks, public-relations managers, recreation workers, registered nurses, secretaries, sheet-metal workers, statisticians, and surveyors.

Hourly pay for employees of state and local governments — which employ the bulk of government workers — is an average of 20 percent to 40 percent higher than wages in the private sector.

Jim Powell is a senior fellow at the Cato Institute and the author of FDR's Folly, Wilson's War, and Bully Boy, among other books.

More by Jim Powell

The latest poster boy for government greed is Robert Rizzo, who was the city manager of Bell, Calif., a working-class town southeast of Los Angeles with a population of about 36,000. Rizzo was paid a sweetheart salary of $787,637 a year. His total annual compensation was reported to be $1.5 million, including 20 weeks of paid vacation. And he was also entitled to an annual pension of $600,000.

Rizzo wasn't the only Bell official who hit the jackpot. Assistant City Manager Angela Spaccia reportedly enjoyed $845,000 a year in total compensation, while Police Chief Randy Adams got $770,000. Moreover, Bell City Council members pocketed almost $100,000 a year each for their part-time elected positions. (Rizzo, Spaccia, and Adams resigned a few weeks ago, after the Los Angeles Times detailed their excesses.)

In general, government employees tend to enjoy gold-plated benefits in addition to their generous salaries, according to the Bureau of Labor Statistics. Eighty-eight percent of state and local government employees have access to employer-provided health insurance, compared with 71 percent of private-sector employees. And government employees pay about half as much of their health-insurance premiums (11 percent) as do private-sector employees (20 percent).

Furthermore, while only 65 percent of private-sector workers have access to employer-provided retirement benefits, 90 percent of state and local government employees do. Government pension plans are so generous with taxpayers' money that they account for much of the financial trouble afflicting state and local governments.

Incredibly, although government employees are often better off than their counterparts in the private sector, politicians have forced taxpayers to guarantee their ability to continue living in the style they have become accustomed to.

Taxpayers are on the hook for both their own losses and those of government-employee pension funds, estimated at $1 trillion. Moreover, when inflation decreases the purchasing power of government employees' retirement benefits, taxpayers are required to hand over more money in the form of "cost-of-living adjustments" — even though nobody guarantees the pension plans or purchasing power of taxpayers. And President Obama's runaway spending has overwhelmingly served to protect the jobs of government employees and other unionized workers, despite the fact that millions of other taxpayers have lost their jobs.

Forcing taxpayers to guarantee the jobs, pensions, and purchasing power of people who are already better off than they are is not only inequitable; it also insulates government employees from the consequences of excessive government spending. This leaves government workers with no incentive to restrain spending.

Taxpayers should be liberated from the burden of supporting this privileged class. There should be no more bloated government payrolls with excessive pay and benefits packages. And there should be no more money spent to protect government jobs and pensions at the expense of taxpayers who are already hard-pressed to take care of themselves and their families.

Monday, August 16, 2010

Ceding American Sovereignty Through Food/Agricultural Policy

From A Charging Elephant:

Ceding America’s sovereignty through food policy

Posted on August 16, 2010

by dancingczars

Posted on August 16, 2010 by Todd Fitchette

Across The Back Fence

American sovereignty is probably in no greater danger than now as Congress moves to cede decisions on agricultural production and policy to the World Trade Organization and labyrinth of unelected government officials within the United States, including the Department of Homeland Security.

Section 404 of the Food Safety Modernization Act: Declares that nothing in this Act shall be construed in a manner inconsistent with the agreement establishing the World Trade Organization or any other treaty or international agreement to which the United States is a party.

Why add language like this unless it’s the goal of Congress to cede control of our food supply to a nefarious body of despots? But I’m not the only one asking these questions. Check out this video and its assorted links. Even more information can be found at the Food Freedom blog.

The Food Safety Modernization Act will arguably establish suffocating layers of regulation upon American agriculture, to the point that American agriculture will cease to exist. As I’ve written in the past, American agriculture is truly our last bastion of sovereignty. When we lose the ability to sovereignly control our own food supply we will no longer be able to control our political destiny. Those who set our agricultural policy and ultimately provide us with our food will have complete control over us. Given that ours is a world of despotic power it’s not entirely unreasonable that our food supply could ultimately be controlled by the same kind of cartels that already control our oil and energy supplies.

Speaking of the word “reasonable,” S510 uses this word three times as it cedes czar powers to the various department secretaries within the US government. For example:

Section 101 -

Amends the Federal Food, Drug, and Cosmetic Act (FFDCA) to expand the authority of the Secretary of Health and Human Services (HHS) to inspect records related to food, including to: (1) allow the inspection of records of food that the Secretary reasonably believes is likely to be affected in a similar manner as an adulterated food; and (2) require that each person (excluding farms and restaurants) who manufactures, processes, packs, distributes, receives, holds, or imports an article of food permit inspection of his or her records if the Secretary believes that there is a reasonable probability that the use of or exposure to such food will cause serious adverse health consequences or death.

Section 102 -

Authorizes the Secretary to suspend the registration of a food facility if the food manufactured, processed, packed, or held by a facility has a reasonable probability of causing serious adverse health consequences or death to humans or animals.

Section 305 -

Requires the Secretary to determine whether a country can provide reasonable assurances that the food supply of the country meets or exceeds the safety of food manufactured, processed, packed, or held in the United States.

What is “reasonable” to our government officials? It seems that nothing in government is “reasonable” anymore given their track record to overstep constitutional authority.

Lest we forget that government is in the business to grow its size and control over our lives, this measure outlines the implementation of numerous yet-to-be-determined taxes upon our lives. Let’s take a look:

Section 107 -

Directs the Secretary to assess and collect fees related to: (1) food facility reinspection; (2) food recalls; (3) the voluntary qualified importer program; and (4) importer reinspection. Applies export certification provisions to food.

Section 401 –

Authorizes appropriations for FY2010-FY2014 for the activities of the Center for Food Safety and Applied Nutrition, the Center for Veterinary Medicine, and related field activities in the Office of Regulatory Affairs of the FDA. Directs the HHS Secretary to increase the field staff of such Centers and Office.

When has government not ever mandated something that it first didn’t make “voluntary?” This is another dangerous idea on a slippery slope towards despotism.

Section 112 -

Requires the Secretary to develop and make available to local educational agencies, schools, early childhood education programs, and interested entities and individuals guidelines for developing plans for individuals to manage the risk of food allergy and anaphylaxis in schools and early childhood education programs, to be implemented on a voluntary basis. Sets forth issues for such guidelines to address, including: (1) parental obligation to provide documentation of their child’s food allergy; (2) the creation of an individual plan for food allergy management; (3) communication strategies between schools or childhood education programs and providers of emergency medical services; and (4) strategies to reduce the risk of exposure to anaphylactic causative agents in classrooms and common school or early childhood education program areas, such as cafeterias. Allows the Secretary to award matching grants to assist local educational agencies in implementing such food allergy and anaphylaxis management guidelines.

The authority that Congress grants the various department secretaries is tantamount to the unconstitutional authority granted the treasury secretary to set and enforce financial policy of America. Congress is ceding control to unelected officials who, by default, become czars of their respective agencies, able to rule by edict absent constitutional controls. What’s wrong with our current system that this HAS to take place?

Just in case there wasn’t enough government control written into the act, read this:

Section 210 -

Requires the Secretary to set standards and administer training and education programs for the employees of state, local, territorial, and tribal food safety officials relating to the regulatory responsibilities and policies established by this Act. Authorizes and encourages the Secretary to conduct examinations, testing, and investigations for the purposes of determining compliance with the food safety provisions of this Act through the officers and employees of such state, local, territorial, or tribal agency.

What does this mean? Don’t we have grocery stores even in rural areas? This can’t be good! Take a look at this:

Section 406 -

Requires the Secretary, acting through the Commissioner of Food and Drugs, to study the transportation of food for consumption in the United States, including an examination of the unique needs of rural and frontier areas with regard to the delivery of safe food.

Why do we need any government agency studying how food is transported to rural areas unless the goal is to cut off those rural regions from the rest of the country? It can’t be to improve efficiencies because we know government is incapable of that. We already have a network of highways and railroad routes capable of transporting goods around America. Aren’t these sufficient to get groceries to the rural regions of the United States?

While this plan is arguably aimed at food safety, America already has the highest standards for food safety in the world. We merely need to enforce those standards and ensure that the food we import meets those same high standards. This is not an issue of food safety for the sake of food safety; it’s really an issue of granting control to an international organization whose board of directors is reminiscent of the Star Wars bar scene, and whose members do not have the best interest of the United States as its core beliefs and desire.


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Congressman Boehner, House Minority Leader, Demands Accounting Of Planned Federal Rules

From Human Events:

Boehner Demands Accounting of Planned Federal Rules

by Connie Hair


The Obama Administration’s published regulatory agenda discloses nearly 200 federal rulemakings activities scheduled this year that could each cost a billion dollars or more.

“It has recently come to our attention that the Administration’s published regulatory agenda includes a total of 191 planned rulemakings, each with an estimated annual cost to our economy of $100 million or more, and that a number of these planned rulemakings may each have an annual economic cost in excess of $1 billion,” said House Republican Leader John Boehner (R-Ohio) of the regulatory agenda.

Today Boehner formally requested the President provide Congress with a complete rundown of those rulemakings with a projected economic price tag of $1 billion or more.

“The constant stream of new federal rules being handed down from Washington has created great uncertainty for American small businesses, and it’s one of the reasons our economy is not creating enough jobs,” Boehner said in the letter. “The Obama Administration owes the American people a full accounting of the degree to which its policies may be negatively impacting job creation in our country.”

This letter echoes a prior request sent in July.

“On July 23, Reps. Geoff Davis (R-Ky.) and Trent Franks (R-Ariz.) sent a letter to the Office of Information & Regulatory Affairs (OIRA) requesting that the Administration provide a list of all pending rulemakings with a projected cost to our economy in excess of $1 billion… I am writing [to] respectfully request that this information be provided to Congress by your administration at the earliest opportunity.”

Boehner is a cosponsor of Davis’ REINS Act which is legislation that would require congressional approval for any new Executive Branch rule imposing a cost of $100 million or more on our nation’s economy.

The entire letter can be found on Boehner’s website here.


Connie Hair writes daily as HUMAN EVENTS' Congressional correspondent. She is a former speechwriter for Rep. Trent Franks (R-Ariz.) and a former media and coalitions advisor to the Senate Republican Conference. You can follow Connie on Twitter @ConnieHair.

San Francisco Wants To Ban Happy Meals At McDonald's

From Vision To America:

San Francisco wants to ban 'Happy Meals'


August 13, 2010

8 comments A bottled water ban? OK. No more regular Coke and Pepsi in government vending machines? All right, if we have to. But no more Happy Meals?

That's the ban that San Francisco is mulling over. Some city supervisors say the toys in McDonald's Happy Meals unfairly lure children to eat unhealthy food.

McDonald's has launched a spirited defense of the iconic meals, which have been part of the chain's menu since 1979, more than 30 years. The meals are a way to draw families to its restaurants, a key demographic for a global chain hungry for customers.

[It's OK to have 'Gay' (Happy) sex in SF, but it's not OK to have Happy food? I don't get it. McDonalds should close all its stores in the City by the Bay and do business where they're wanted. Gary DeMar]

A bottled water ban? OK. No more regular Coke and Pepsi in government vending machines? All right, if we have to. But no more Happy Meals?

That's the ban that San Francisco is mulling over. Some city supervisors say the toys in McDonald's Happy Meals unfairly lure children to eat unhealthy food.

McDonald's has launched a spirited defense of the iconic meals, which have been part of the chain's menu since 1979, more than 30 years. The meals are a way to draw families to its restaurants, a key demographic for a global chain hungry for customers.

[It's OK to have 'Gay' (Happy) sex in SF, but it's not OK to have Happy food? I don't get it. McDonalds should close all its stores in the City by the Bay and do business where they're wanted. Gary DeMar]

Friday, August 13, 2010

How To Stop A Tyrannical Judiciary

from Alliance Defense Fund and Town Hall:

Ben Shapiro How to Stop the Tyrannical Judiciary

COLUMNIST'S ARCHIVE SHARE THIS: Share37 00diggsdiggSign-Up Quick quiz: What do we call a system of government in which an unelected cadre of self-professed wise men make decisions for a nation of millions, all the while insulting those millions as ignoramuses?

We used to call it tyranny. Now, apparently, we call it an "independent judiciary."

At least that's the way the left sees it. The role of the judiciary in this country, according to liberals, is to act as a sort of super-Senate, qadis on the hill who decide based on whim and fancy how the rest of us should live. The American people are benighted morons; the judiciary is full of brilliant moral thinkers. They must rule us.

This perspective, of course, would have sickened the Founding Fathers, who established an independent judiciary in order to adjudicate legal disputes, not to rewrite laws at will. In fact, the founders recognized the threat of judicial omnipotence, which is why they wrote the Constitution so as to limit the judiciary: The judiciary cannot control its own purse strings, nor can it even define its own jurisdiction. Under Article III of the Constitution, Congress' power over the judiciary doesn't end with up-or-down judicial nominee votes -- Congress actually has the power to take whole areas of law away from the judiciary completely.

Congress can create inferior courts, which means it can eliminate them, too. As to the jurisdiction of those courts, Congress can define it. Congress can even define the jurisdiction of the Supreme Court: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." In other words, Congress can carve out exceptions and regulations taking full swaths of judicial oversight away from the judiciary.

This is not an accidental inclusion in the Constitution. It was an integral part of the document's construction. The Founding Fathers built the government around the principle that powers would check one another; the supposed exception to that rule has always been the judiciary, which remains unchecked. But it wasn't supposed to remain unchecked -- Congress was supposed to have the power to check the judiciary. Anti-federalist Robert Yates feared that Congress would not be able to do anything about such a usurping judiciary: "There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself."

Alexander Hamilton answered that if judges "should be disposed to exercise WILL instead of JUDGMENT ... [that] would prove that there ought to be no judges distinct from that [legislative] body." In other words, the legislature could trump the judiciary just as easily as the judiciary could issue rulings trumping the legislature.

It's time for the legislature to trump the judiciary. A simple, two-step process would do it. First, Congress need only invoke its power over appellate jurisdiction and remove it for all federal cases involving issues such as abortion, same-sex marriage and immigration -- in fact, Congress has already limited federal judicial jurisdiction in certain immigration cases. When the courts declare such legislation unconstitutional, Congress can simply ignore them or defund the courts accordingly.

This is hardly a radical suggestion. It is well within the constitutional scheme, which foresaw gridlock and friction as a central goal to checking the growth of government.

No doubt liberals will be dismayed. After all, they worship the judiciary that magically creates liberal-agenda "rights" out of whole cloth. Their chief counterargument to the populist constitutional argument will be Brown v. Board of Education, which, they feel, justifies all intrusive judicial intervention into the republican system for all time. Brown v. Board was, of course, a morally correct decision. It was also utterly ineffective; only the Civil Rights Act of 1964 truly desegregated America, as liberal legal scholar Gerald Rosenberg wrote in his seminal work, "The Hollow Hope." And for every Brown v. Board, there is a Plessy v. Ferguson and a Dred Scott.

The true defenders of the Constitution must be the people. The courts pretend to care about the Constitution, but in truth, they care only about their own political preferences. Our elected officials aren't much better -- but at least we elect them. Our only hope for a true republic of limited government and popular sovereignty lies in ourselves. Any delegation of that ultimate constitutional power to an oligarchy of unelected lifetime tenure politicians means that we no longer live under a system that retains the consent of the governed. Legislative Update


Table of Contents


•S. 3589: Carbon Capture and Sequestration Deployment Act of 2010

•S. 3591: Carbon Capture and Sequestration Deployment Act of 2010

•S. 3651: STALKERS Act of 2010


•H.R. 5663: Robert C. Byrd Miner Safety and Health Act of 2010

•H.R. 5566: Prevention of Interstate Commerce in Animal Crush Videos Act of 2010

•H.R. 5138: International Megan's Law of 2010

•H.R. 3804: National Park Service Authorities and Corrections Act of 2009


S. 3589: Carbon Capture and Sequestration Deployment Act of 2010

Sponsor: Rockefeller (D - WV)

Official Title: A bill to provide financial incentives and a regulatory framework to facilitate the development and early deployment of carbon capture and sequestration technologies, and for other purposes.


7/14/2010: Introduced in Senate

7/14/2010: Referred to Senate Energy and Natural Resources Committee

Commentary: This bill would establish the Carbon Storage Stewardship Board as an independent agency within the Department of Energy and empower it to prescribe rules and regulations relating to the operation of carbon storage facilities. Any person that “knowingly and willfully violates any provision” of the bill “or any rule or order thereunder” would be subject to imprisonment for up to two years, a fine of $50,000, or both. This measure is nearly identical to S. 3591, which was simultaneously introduced in the Senate.

S. 3591: Carbon Capture and Sequestration Deployment Act of 2010

Sponsor: Rockefeller (D - WV)

Official Title: A bill to provide financial incentives and a regulatory framework to facilitate the development and early deployment of carbon capture and sequestration technologies, and for other purposes.


7/14/2010: Introduced in Senate

7/14/2010: Referred to Senate Finance Committee

Commentary: This bill would establish the Carbon Storage Stewardship Board as an independent agency within the Department of Energy and empower it to prescribe rules and regulations relating to the operation of carbon storage facilities. Any person that “knowingly and willfully violates any provision” of the bill “or any rule or order thereunder” would be subject to imprisonment for up to two years, a fine of $50,000, or both. This measure is nearly identical to S. 3589, which was simultaneously introduced in the Senate.

S. 3651: STALKERS Act of 2010

Sponsor: Klobuchar (D - MN)

Official Title: A bill to amend Title 18, United States Code, with respect to the offense of stalking.


7/27/2010: Introduced in Senate

7/27/2010: Referred to Senate Judiciary Committee

Commentary: This bill is the Senate version of H.R. 5662, with some very minor changes. Section 2261A(1) of Title 18, U.S. Code, presently makes stalking illegal when the prohibited conduct involves “travel[] in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or enter[ing] or leav[ing] Indian country.” This bill would also make stalking unlawful when the prohibited conduct occurs “in or affecting interstate or foreign commerce.” It would define stalking as conduct engaged in “with intent to kill, physically injure, harass, or intimidate a person . . . that causes or attempts to cause bodily injury or serious emotional distress” or “occurs in circumstances where the conduct would be reasonably expected to cause the other person serious emotional distress.” This bill would also provide for the enhancement of the punishments for any violation, which are presently set out in 18 U.S.C § 2261(b), in specified circumstances. If the conduct involves the violation of a protective order and the victim is under the age of 18 or over the age of 65, the offender is 18 years old or older, and the offender knows or should know that the victim is under the age of 18 or over the age of 65, the term of imprisonment that may be imposed would be increased by up to 5 years.

H.R. 5663: Robert C. Byrd Miner Safety and Health Act of 2010

Sponsor: Miller (D - CA)

Official Title: A bill to improve compliance with mine and occupational safety and health laws, empower workers to raise safety concerns, prevent future mine and other workplace tragedies, establish rights of families of victims of workplace accidents, and for other purposes.


7/1/2010: Introduced in House

7/1/2010: Referred to House Education and Labor Committee

7/13/2010: Hearing Held by House Education and Labor Committee

7/21/2010: Mark up in the House Education and Labor Committee

7/21/2010: Ordered to be reported

7/29/2010: Reported to House

7/29/2010: Referred to House Judiciary Committee

7/29/2010: Discharged House Judiciary Committee

7/29/2010: Placed on House calendar

Commentary: Section 820(d) of Title 30, U.S. Code, currently prohibits “willfully” violating a mandatory mining health or safety standard or “knowingly” violating or refusing to comply with certain orders issued by the Secretary of Labor. This bill would significantly lower the protectiveness of the mental state required to prove a violation of a mandatory health and safety standard from “willfully” to “knowingly.” Violators are currently subject to imprisonment for up to one year, a fine of up to $250,000, or both on the first conviction, and imprisonment for up to 5 years, a fine of $500,000, or both for subsequent violations. This bill would increase the penalty for first violations to imprisonment for up to 5 years, a fine of $1,000,000, or both, and the penalty for subsequent violations to imprisonment for up to 10 years, a fine of $2,000,000, or both. Under 30 U.S.C. § 820(c), a director, officer, or agent of a corporate violator who “knowingly authorized, ordered, or carried out” the conduct leading to the violation is subject to prosecution to the same extent as the corporation. This provision will not necessarily be interpreted by the courts to require the government to prove that the director, officer, or agent had any actual knowledge that what he or she authorized, ordered, or carried out was unlawful.

H.R. 5566: Prevention of Interstate Commerce in Animal Crush Videos Act of 2010

Sponsor: Gallegly (D - CA)

Official Title: A bill to amend Title 18, United States Code, to prohibit interstate commerce in animal crush videos, and for other purposes.


6/22/2010: Introduced in House

6/22/2010: Referred to House Judiciary Committee

6/23/2010: Mark up in the House Judiciary Committee

6/23/2010: Ordered to be reported

7/19/2010: Reported to House

7/21/2010: House passage of amended bill under suspension of rules.

7/22/2010: Received in Senate

8/5/2010: Referred to Senate Judiciary Committee

Commentary: This bill replaces H.R. 5092 and is a response to the U. S. Supreme Court’s April 2010 decision in United States v. Stevens, in which the Court found that 18 U.S.C. § 48, which prohibits the commercial creation, sale, or possession of certain depictions of animal cruelty, violated the First Amendment because it was substantially overbroad. The Court noted, among other things, that the reach of § 48 was so broad that it would include depictions of hunting activities. Because the statute applied to depicted conduct that was illegal in any state where the depiction was created, sold, or possessed, the Court also observed that a “depiction of entirely lawful conduct runs afoul of the ban if that depiction finds its way into another State where the same conduct is illegal.” This bill would prohibit the knowing sale or distribution in interstate or foreign commerce of “animal crush videos” and create safe harbors for depictions of veterinary or animal husbandry practices and depictions of hunting, trapping, or fishing. It would apply to depictions of actual conduct that violate a criminal prohibition on cruelty to animals under Federal law “or the law of the State in which the depiction is created, sold, distributed, or offered for sale or distribution.”

H.R. 5138: International Megan's Law of 2010

Sponsor: Smith (R - NJ)

Official Title: A bill to protect children from sexual exploitation by mandating reporting requirements for convicted sex traffickers and other registered sex offenders against minors intending to engage in international travel, providing advance notice of intended travel by high interest registered sex offenders outside the United States to the government of the country of destination, requesting foreign governments to notify the United States when a known child sex offender is seeking to enter the United States, and for other purposes.


4/26/2010: Introduced in House

4/26/2010: Referred to House Foreign Affairs Committee

4/26/2010: Referred to House Judiciary Committee

7/27/2010: Reported to House

7/27/2010: Reported to House

7/27/2010: Placed on House calendar

7/27/2010: House passage of amended bill under suspension of rules.

7/28/2010: Received in Senate

8/5/2010: Referred to Senate Foreign Relations Committee

Commentary: This bill would create a federal registry for convicted sex offenders who travel abroad. The bill would also require U.S. diplomatic missions in foreign countries to establish and maintain country-wide sex offender registries for sex offenders from the United States who temporarily or permanently reside in each country. An offender’s “knowing” failure to comply with the reporting requirements of these registration systems “after being duly notified of the requirements” would be punishable by imprisonment for up to 10 years, a fine as authorized by Title 18, U.S. Code, or both.

H.R. 3804: National Park Service Authorities and Corrections Act of 2009

Sponsor: Tonko (D - NY)

Official Title: A bill to make technical corrections to various acts affecting the National Park Service, to extend, amend or establish certain National Park Service authorities, and for other purposes.


10/13/2009: Introduced

10/13/2009: Referred to House Natural Resources Committee

10/13/2009: Referred to House Transportation and Infrastructure Committee

10/13/2009: Referred to House Oversight and Government Reform Committee

10/14/2009: Referred to Subcommittee on Highways and Transit

11/5/2009: Hearing Held by Subcommittee on National Parks, Forests and Public Lands

11/18/2009: Discharged Subcommittee on National Parks, Forests and Public Lands

11/18/2009: Mark up in the House Natural Resources Committee

12/7/2009: Reported to House by House Natural Resources Committee

12/7/2009: Discharged House Transportation and Infrastructure Committee

12/7/2009: Discharged House Oversight and Government Reform Committee

12/7/2009: House passage of amended bill under suspension of rules.

12/8/2009: Received in Senate

12/8/2009: Referred to Senate Energy and Natural Resources Committee

3/17/2010: Hearing Held by Subcommittee on National Parks, Forests and Public Lands

6/21/2010: Mark up in the Senate Energy and Natural Resources Committee

6/21/2010: Ordered to be reported Senate Energy and Natural Resources Committee

8/5/2010: Reported to Senate by Senate Energy and Natural Resources Committee

8/5/2010: Placed on Senate calendar

Commentary: This bill makes technical corrections to certain acts affecting the National Park Service. Included in the bill is a provision clarifying that if a violation of a national park regulation “occurs within a park, site, monument, or memorial that is part of the National Park System,” violators are subject to the penalties specified in two other sections of the U.S. Code. Applicable penalties for violations of the Secretary of Interior’s published rules and regulations include a fine of up to $500 or up to six months imprisonment. For other federal criminal code violations, applicable criminal fines against individuals include up to $5,000 for infractions and up to $250,000 for felonies (or misdemeanors resulting in death). The criminal fines against corporations include up to $10,000 for infractions and up to $500,000 for felonies (or misdemeanors resulting in death).

"Overcriminalization" includes applying criminal sanctions to conduct that traditionally has not been considered inherently wrongful, federalizing crime that properly belongs under state jurisdiction, and attaching criminal penalties without criminal intent. Reasonable people may disagree whether any specific bill included in the Legislative Update Alert is an abuse of criminal law or is in fact justified. Nevertheless, the Legislative Update Alert includes all bills our researchers have identified that add or enhance federal criminal penalties. Please visit us at