In 2008, the California Air Resources Board banned diesel truck engines manufactured before 2010. Over a million trucks operating in California, including 625,000 that were registered out-of-state, were suddenly illegal.
Existing diesel engines could only be operated in California if they were retrofitted with a filter that could cost as much as $15,000.
The regulation, known as the Statewide Truck and Bus Rule, carried an estimated price tag of $10 billion. If you were wondering why everything moved by truck in California is more expensive, it’s because you’re paying that bill. A little of the cost is passed along in the price of everything from furniture to strawberries.
It’s a basic principle of freedom that the government cannot pass a law that applies retroactively, criminalizing something that was legal at the time it originally happened. The U.S. Constitution says no “ex post facto Law shall be passed” by the federal government or by the states. “Ex post facto” is Latin meaning “from a thing done afterward.”
It’s another basic principle of freedom that the government exists by consent of the governed, meaning government officials are accountable to the people, not the other way around.
Alas, in California, these principles have been kicked to the curb. Or maybe it’s more accurate to say they’ve been kicked to the CARB.
The California Air Resources Board is accountable to no one, something that troubled lawmakers in both political parties during the recent debate over climate legislation. When the governor would not agree to amendments giving the Legislature more oversight over the agency, lawmakers dropped a proposal for a 50 percent cut in petroleum use for transportation that CARB was set to enforce.
CARB claims an urgent need for the Truck and Bus Rule. But there are serious questions about whether this is true.
In the fall of 2008, a CARB staff report concluded that reducing “fine particulate” air pollution from diesel engines would prevent 9,400 premature deaths in California between 2011 and 2025. The report was presented to the CARB board members, who quickly voted to approve the new regulation requiring filters or new diesel engines.
But the lead staffer responsible for that report, Hien Tran, was later revealed to have lied about his academic credentials — he purchased his Ph.D. from a diploma mill for $1,000 — and although CARB chair Mary Nichols knew about the deception, she withheld that information from board members until months after they voted to pass the new rule.
The problems with the report were not limited to credentials. Extensive studies of the health effects of fine particulate air pollution, including one by CARB-funded scientist Michael Jerrett of the University of California at Berkeley, showed that it is not causing any premature deaths in California.
That’s all ignored by officials who are now throwing the book at companies that have failed to comply with the rule.
On Oct. 8, CARB and the U.S. Environmental Protection Agency announced that trucking firm Estes Express Lines will pay a $100,000 fine and another $290,000 for pollution-reduction education programs for operating 73 trucks in California between 2012 and 2014 without the required filters. In addition, Virginia-based Estes “voluntarily” replaced its trucks with new models to comply with California’s regulations.
In announcing the penalties, Jared Blumenfeld of the EPA stated that the Truck and Bus Rule will prevent 3,500 premature deaths in California between 2010 and 2025. The precise origin of this number, which used to be 9,400, is a little murky. The real number appears to be zero.
Meanwhile, billions of dollars are being spent to replace or retrofit diesel engines that already meet the clean-diesel engine standards established in 2001. It’s one more reason for businesses to take their jobs and leave the state.
California regulators can create any kind of rule, apply it retroactively, and declare illegal the equipment that five minutes earlier was in full compliance with the law. And the EPA is helping CARB enforce its rules on out-of-state companies that are beyond the jurisdiction of California authorities.
Why is this even legal?
It may not be. The California Construction Trucking Association, now renamed the Western States Trucking Association, has asked the U.S. Supreme Court to consider whether federal courts have jurisdiction to review the matter.
Truckers will never get their billions back. But it’s not too late to save everybody else’s jobs from being retroactively criminalized by reckless regulators.