By Larry Bell, Forbes (reprinted with author permission)
I switched channels after the Ohio results came in and intentionally watched a really dumb action movie in order to get tired enough to sleep. Still in a disconsolate state of shock the next morning, I was in no mood for post-mortem could’a-should’a-would’a mental replays, even lacking sufficient emotional capacity to muster up anger.
But this is a resilient country. We will survive. And there’s much we can all do to make it better…stronger. And who knows, maybe things won’t be as bad as I have imagined during the president’s second term. Having no more elections to face, maybe now he won’t be as bound to accede to dictates of his far left base. Maybe Democrats and Republicans can find enough common negotiating space to prevent budgetary sequestration from being triggered, and to avoid a disastrous economic plunge over the fiscal cliff.
These are only a couple of the overarching issues that will drive and shape future developments. Within those larger dynamics there are some smaller, yet very important congressional and judiciary arenas where motivated voters can still exert considerable influence. Let’s consider three of them.
U.N. Arms Trade and Law of the Sea Treaties:
Just hours after President Obama was re-elected, the U.S. backed a U.N. call to renew debate over a draft Arms Trade Treaty (ATT). Even many U.N. delegates and gun control activists believe this process was put on hold due to presidential campaign concerns. While ATT is represented as a means to regulate only government-to-government transfers and direct sales by manufacturers to governments, it is broadly perceived by skeptics as a strategy for those who oppose Second Amendment rights to ultimately achieve their goal of prohibiting private firearms ownership through vague, innocuous language without media attention.
Under current plans, the treaty will be submitted to nations early next year for virtually-assured signature and ratification upon receiving a two-thirds vote. And while U.S. treaty ratification will also require an unlikely two-thirds Senate approval… according to a paper published by legal scholar David Kopel and his colleagues in the Bringham Young University Journal of Public Law, there are many ways unratified treaties can work their ways into U.S. laws.
The authors conclude : “For example, some eminent international disarmament experts have taken the position that the president of the United States may announce that a treaty has entered into force, and thereby become the law of the United States even if the U.S. Senate has never voted to ratify the treaty. The United States Supreme Court has cited unratified treaties (and even an African treaty), and various contemporary foreign law sources, as guidance for interpreting United States constitutional provisions. Likewise, other scholars, writing in a U.N. publication, argue that United Nations gun control documents (notwithstanding the fact that the documents, on their face, have no binding legal effect) represent ‘norms’ of international law.”
On June 29th, 130 Republican House members sent a letter to President Obama and Secretary Clinton arguing that the proposed treaty infringes on the “fundamental, individual right to keep and bear arms”. The letter charges that “…the U.N.’s actions to date indicate that the ATT is likely to pose significant threats to our national security, foreign policy, and economic interests as well as our constitutional rights.” The lawmakers adamantly insist that the U.S. Government has no right to support a treaty that violates the Constitution and Bill of Rights.
Although Democrats maintain that the treaty poses no Second Amendment threat, former U.N. ambassador John Bolton, cautions gun owners to take this initiative seriously. He believes that the U.N. “…is trying to act as though this is really just a treaty about international arms trade between nation states, but there is no doubt that the real agenda here is domestic firearms control.”
There are also some Obama-backed U.N. treaties that defeated globalist-oriented lame-duck members of Congress with nothing to lose may successfully help to push through for ratification before leaving office. One is the Law of the Sea Treaty (LOST) which would subordinate U.S. naval and drilling operations beyond 200 miles of our coast to a newly established U.N. bureaucracy. If approved, it will grant a Kingston, Jamaica-based International Seabed Authority (ISA) the power to regulate deep-sea oil exploration, and seabed mining.
As part of the deal, as much as 7% of U.S. government revenue collected from oil and gas companies operating off our coast will be forked over to ISA for redistribution to poorer, landlocked countries. This apparently is in penance for America’s audacity in perpetuating prosperity yielded by our Industrial Revolution.
Like the U.N.’s Kyoto Protocol debacle that preceded it, this most recent LOST cause embodies the progressive ideal of subordinating the sovereignty of nation states to authoritarian dictates of a world body. The U.S. would have one vote out of 160 regarding where the money would go, and be obligated to hand over offshore drilling technology to any nation that wants it… for free.
And who are those lucky international recipients? They will most likely include such undemocratic, despotic and brutal governments as Belarus, Burma, China, Cuba, Sudan and Zimbabwe…all current voting members of LOST.
There are also some upcoming treaties with very admirable-sounding titles, but posing much less loveable U.N. regulatory intrusions into other matters of U.S. sovereignty. An example is a global Convention on the Rights of Persons with Disabilities (CRPD) which was signed by our U.N. Ambassador Susan Rice (now famous for false public statements about the Benghazi attack). We already have numerous organizations and statutes that address these needs without U.N. busybodies butting in. Another is a U.N. Treaty on the Rights of the Child, a broadside attack on parent’s rights to limit media programs they can watch, or determine which church they attend.
Environmental and Energy Regulations:
According to the annual “Regulator’s Budget” compiled last year by George Washington University and Washington University in St. Louis, the employment of federal government regulators has climbed 13% since Obama took office, while private sector jobs shrank by 5.6%. In fact, if the federal government’s regulatory operations were a business, their $54 billion budget would make them one of the 50 the largest in the country… bigger than McDonald’s, Ford, Disney and Boeing combined.
Now, with his re-election behind him, President Obama can plow “Forward”, using the EPA and other agencies to expand regulatory intervention into wide-ranging aspects of our lives and economy. Particularly hard hit will be those which are highly energy-dependent.
The American Council for Capital Formation estimates that the new EPA regulations already in place will result in 476,000 to 1,400,000 lost jobs by the end of 2014. Management Information Services, Inc. foresees that up to 2.5 million jobs will be sacrificed, annual household income could decrease by $1,200, and gasoline and residential electricity prices may increase 50% by 2030. The Heritage Foundation projects that the greenhouse gas regulations will cost nearly $7 trillion (2008 dollars) in economic output by 2029.
Former climate czar Carol Browner was very clear about what’s in store when she told several green groups not to worry, because “President Obama has a big green ‘to-do’ list for 2013 so they’ll get what they want.” On the other hand, if you want to build a coal plant, you’ve got a big problem. EPA’s proposed coal ash rule could cost $79 to $110 billion over 20 years, destroying 183,900 to 316,000 jobs. This will have disastrous impacts in states like Pennsylvania, West Virginia, Ohio and Missouri. (Remember hearing about some of those states as likely Republican swing states?)
Now, premised upon climate alarm, which has even been disavowed by EPA’s own internal review of the matter, the agency is proposing the first source-specific emissions standards for new power plants. These restrictions are so strict that they will virtually eliminate coal as a fuel option for future electric power generation.
While EPA has punted on standards for existing power plants, as well as refineries, we can expect the agency to proceed under auspices of its Clean Air Act (CAA) to issue regulations, industry by industry, until virtually every aspect of the American economy is severely constrained by bureaucratic permitting requirements. These rules are projected to cost more than $300 to $400 billion a year, and will significantly raise the price of gas at the pump and energy in the home.
This ominous precedent can apply to small private entities as well, including churches, schools, restaurants, hospitals and farms. For example, under proposed federal permitting requirements, a farm whose aggregate emissions exceed CAA permitting thresholds would be required to pay a “cow tax” for each ton of greenhouse gas emitted on an annual basis. EPA itself estimates that this will require more than 37,000 farms and ranches to pay an average $23,000 every year, affecting over 90% of all U.S. livestock production.
EPA may also tighten farm dust standards as part its review of the National Ambient Air Quality Standards (NAAQS) for coarse particulate matter (PM10). This would have widespread implications for rural America where the only way to comply will be to reduce numbers of livestock, cut back on tilling of fields, or to shrink or even end businesses altogether.
There are a large number of other planned EPA air and water regulations either in force or in the works. EPA’s Boiler MACT (Maximum Achievable Control Technology) standards are so restrictive that not even many of the best-performing sources can meet them. Such companies will have no choice but to shut their doors and ship manufacturing jobs overseas. The rule has been projected to reduce U.S. GDP by as much as 1.2 billion dollars, and to destroy nearly 800,000 jobs.
EPA’s Cement MACT rule could cause 18 plants to shut down, eliminating up to 80,000 road, bridge and building construction workers due to substantially increased cement costs. As with Boiler MACT, EPA had postponed decisions on certain aspects of the rule until after the election.
Although President Obama previously admitted that the “regulatory burdens and regulatory uncertainty” of tightening an existing ozone standard would harm jobs and the economy, he still pointed to the fact that it will be reconsidered in 2013. EPA itself estimated that this would cost $90 billion a year. Other studies project that the rule could cost upwards of a trillion dollars and destroy 7.4 million jobs, and put 650 additional counties into a category of “non-attainment. This is the equivalent of posting a “closed for business” sign on communities which will suffer from severe business and job losses resulting from large numbers of plant closures.
A proposed new guidance document for waters covered by the Clean Water Act, reinterprets recent Supreme Court decisions to allow EPA to expand federal control over virtually every body of water in the United States, no matter how small. EPA’s own analysis of the document estimated that up to 17% of current non-jurisdictional determinations would be considered jurisdictional using the new guidance. Such federal guidance will impose large additional regulatory responsibilities and costs for states and municipalities.
EPA also plans to expand a universe of federal storm-water regulations. Included are first-time standards for post-construction and retrofit requirements for storm-water systems. This can force cities to change existing buildings, storm-water sewers, and streets. It may even mandate the use of “green infrastructure” techniques (like “green roofs,” rain gardens, permeable pavement) to replace conventional storm-water management practices. All this will put enormous cost burdens on states, municipalities, and just about anyone who owns or wants to develop property.
EPA is working to curtail hydraulic fracturing (or “fracking”) that is providing access to America’s huge oil and gas resources through a variety of mechanisms. One strategy applies guidance measures which restrict use of diesel fuels in the process, stripping states of the primacy granted to them through the Safe Drinking Water Act. This is premised upon a broadly criticized study purportedly linking fracking to water contamination. Other back-door regulatory mechanisms include the Toxic Substances Control Act, Resource Conservation and Recovery Act, the Clean Air Act, and potentially, applications of Effluent Limitations Guidelines for both shale gas extraction and coal-bed methane.
Fracking is not only under attack by EPA, but by more than a dozen other agencies as well. Included are the Department of Energy, the Bureau of Land Management (BLM), the Center for Disease Control, the Department of Agriculture, and even the Securities and Exchange Commission. The BLM, under Secretary Salazar’s control, will now commence finalizing new regulations.
These are but some of the new and proposed federal regulations that will significantly impact our future, and we can be certain that we will see many more. So what influence can we have? Well, in addition to whatever direct persuasion that can be exerted through our Congressional representatives, there’s also another avenue …the judiciary.
While it’s a difficult, costly and lengthy slog to do so, unwarranted federal regulations are successfully being overturned in court thanks to aggressive litigants and sensible judges. In a recent example, the U.S. Court of Appeals for the D.C. Circuit struck down the signature “Cross-State Air Pollution Rule” enacted by EPA a year ago that was supposed to reduce air pollution emitted in one state and carried to another, even by levels exceeding the originator state’s federal air quality standards. The court also found that EPA acted illegally in dictating measures to be used in compliance, rather than allowing states to develop their own plans according to statutory provisions.
Another August ruling by the Fifth Circuit Court of Appeals spared the state of Texas from “arbitrary and capricious” rejection of utility permitting processes that put EPA in the board rooms and boiler plants of industrial and utility companies. The finding determined that 120 unjustly targeted permit holders were wrongly mandated to “de-flex” under threat of federal and civil sanctions with no environmental benefit. Although not a single pound of emissions reductions resulted, the companies had been forced to spend millions of dollars to satisfy what amounted to a bureaucratic paper exercise.
In another ruling on July 11, Judge Reggie B. Walton of the U.S. District Court for the District of Columbia rejected EPA’s attempts to regulate Appalachian surface coal mining based upon “final guidance” which had been falsely characterized as “non-binding”. The court agreed with plaintiffs that EPA had overstepped the authority given to it by Congress under the Surface Mining Control and Reclamation Act and the Clean Water Act. The opinion also validated positions of state government parties and the regulated community that EPA cannot disrupt the regulatory balance created by Congress for mining governance in which the EPA has no direct role. This provides a precedent for other legal challenges to EPA’s use of guidance documents for unauthorized regulatory purposes.
In a similar case, the D.C. Court of Appeals ruled in 2011 to reject EPA’s reliance on guidance documents that were never adopted as administrative rules under the Clean Air Act which violated rights of states to propose alternatives. And in still another case, the Natural Resources Defense Council successfully challenged that the EPA violated the Administrative Procedures Act’s notice and comments requirements by unilaterally issuing “guidance” as a policy statement or interpretive rule on a case-by-case basis without notice and comment, thus avoiding the statutory rulemaking process.
Now, the D.C. Circuit Court of Appeals, the vitally important leading court for legal challenges to new regulation, is itself under attack by liberal media led by the Washington Post and New York Times. Although many of the court’s opinions have been joined by Democratic and Republican appointees, particular outrage centers on a July finding that rejected a Security and Exchange Commission’s so-called “proxy access” rule which would have increased union power over corporate boards.
A key target of liberal ire appears to be Judge Brett Kavanaugh, who, at the age of 47, is young enough for consideration as a future Supreme Court nomination. The left knows that repeated media portrayals of conservative judges and their opinions as radical or out of the mainstream is an effective tactic.
The scariest consequences of this past election revolve around influences upon future Supreme Court decisions… especially concerning judicial interpretations of constitutional protections recognized by the Second Amendment. Imagine more justices in the philosophical mold of the president’s most recent addition, Elana Kagan, a gun-unfriendly attorney who participated in writing the 1998 Clinton White House executive order banning imports of 58 types of “semiautomatic assault rifles”. Then there’s also Sonia Sotomayor, an Obama nominee who joined Justice Stephen Breyer’s dissenting opinion in the narrow 5-4 McDonald v. City of Chicago decision which clarified that Second Amendment rights apply to states.
An Obama reelection presents an extreme risk of replacing at least one of five Supreme Court justices who have vindicated Second Amendment protections in the precarious Heller and McDonald decisions. If this were to happen, our right to bear arms might become a lost historical memory for future oppressed generations to read about.
With four more years ahead, and the Executive Branch, the Senate and the mainstream media stacked against conservative values, we have no choice but to prepare for a regulatory tsunami and just hold back the floods where we can. This isn’t going to be easy, but then, nobody ever promised us a White House Rose Garden. We must now double-down on our efforts to win it back before only restrictive thorns remain, and before our economic future turns to brambles.