Fraud in Calif. Air Board Rules

By Kennedy Maize

This is so California. The all-powerful California Air Resources Board, which drives regulations affecting cars, power plants, and virtually anything with moving parts in the state, has ordered a new study of the health effects of diesel engine emissions,  after it turned out that a staff member who did the analysis leading to expensive new regulations on diesel engines falsified his credentials.

Here’s the California part. The CARB did not suspend it’s new diesel rules when it discovered that the health effects report upon which it based its regulatory decision could be flawed. Instead, it ordered a new report.

What’s worse, when the board adopted its regs last year, based on a report by staffer Hien Tran, who claimed a Ph.D. in statistics from the University of California at Davis, CARB chief Mary Nichols knew that Tran’s degree was actually from an unaccredited, online institution, before the board voted on the new rules. She didn’t speak up at the time.

Nichols, the clean air chief in the Clinton Administration’s Environmental Protection Agency, and a Natural Resources Defense Council attorney before that, apologized to the board after the fact at its December 2009 meeting.

In it’s defense, the CARB did tell the staff in its reworking of the study to look at potential amendments to the rules, which are designed to reduce particulate emissions. The air board is scheduled to take up the diesel rules again in its April meeting.

The regs, which would go into effect in 2011 and ratchet up over the next 10 years, rely on a requirement for a new diesel low-carbon reformulated fuel that would not be required anywhere else in the U.S. It would apply to all diesel engines, from trucks to cars to power plants. The fuel required under the California rules does not yet exist, according to trucking industry claims. They argue that it will require costly technology retrofits on existing engines.

The California rule would also apply to trucks coming into the state from other states that do not have similar rules. According to legal experts, that could trigger lawsuits alleging that the California rules are a violation of the Commerce Clause in the U.S. Constitution. Similar attempts to bar out-of-state coal in Ohio and Illinois fell afoul of the federal courts on Commerce Clause grounds.

Writing in the San Diego Union-Tribune, former CARB member and chairman (1994-1999) John Dunlap said, “What has emerged, it seems, is an attitude and belief among some CARB staff that the ends justify the means and that full disclosure and transparency are not required before the board or the public. This runs counter to the very tenets of democratic law and due process.

“It is a system that begs for scrutiny and reform and can only benefit from more board-level involvement. As it now stands the CARB chief counsel plays the role of a sort-of regulatory sheriff, prosecutor and judge. It defies due process and fundamental separation-of-power principles that CARB staff – or any government official – could be allowed to assume all these positions of power – with unlimited discretion and without any meaningful checks and balances.”

In my judgment, Mary Nichols should be looking for a new job.