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CARB under Attack: Scandal, Economy, Data Challenges, Reputation for Arrogance Take Toll on Clean Air Clout

By George Cunningham, Cunningham Report, 10/03/2010


The California Air Resources Board, an agency used to getting its own way, is facing tough questions about the way it does business and challenges from the businesses that are being squeezed by its regulations. Some of it is just economics. Red ink and green mandates don't really mix well. People who don't have jobs and those who are worried about losing their businesses because they can't compete are not going quietly into the night. They are fighting back against the agency they believe is working to destroy them.


Voters in November will be voting on Proposition 23, which would put CARB's controversial climate change program on hold until the state's unemployment rate drops to below 5.5 percent for four consecutive quarters.


The governor last week signed Senate Bill 1402, which will require CARB to explain the process and cite the specific code violation when it fines a company for a clean air violation. Schwarzenegger also vetoed Assembly Bill 1405, which would have taken revenues generated by the climate change program and directed them to low-income and minority communities. In his veto message, the governor said the bill proposed spending money that did not currently exist and may never exist.


It's not all just a tough economy that's causing CARB problems. It's also the way CARB does business, the imperial attitude it often displays toward the people it regulates, and its lack of accountability. CARB hands down its regulations and the people who are impacted by those regulations are expected to jump, then pay through the nose for the privilege of being environmentally correct.


In the culture of CARB, there are the good guys - environmental groups and green industries -and the bad guys - polluters and those who oppose CARB's green agenda. But recent events have tended to erode the agency's moral authority and its reputation.


Cases in point:


There was the Hien Tran incident and subsequent cover up by CARB Chairwoman Mary Nichols and other CARB officials.


Tran was a CARB staffer who authored a report used to justify costly clean truck standards on California truckers. It turned out that he had a phony doctorate that he bought from a diploma mill for $1,000.


The fact that CARB executives had not checked Tran's credentials and had allowed him to take the lead on a study that was the basis for a California state regulation that would cost the trucking industry billions of dollars, was a little scandal. The big scandal was that Nichols and others knew about Tran's deception before the vote on the tough new truck regulations, but decided to keep it to themselves. When it finally came out, almost a year later, they treated it like it was no big deal.


Tran was demoted, but not fired, and the report he wrote was defended by Nichols and others. Only after board member John Telles found out about the Tran cover-up, said that CARB's credibility was at stake, and demanded that the Tran's report be redone, did Nichols and others reluctantly relent. A new report is currently in progress.


Then there was the James Enstrom incident.


James Enstrom is an outspoken researcher from UCLA, who openly questioned the science CARB relies on to make its decisions. He was the one who blew the whistle on Tran and his phony degree. And he was among the folks who questioned the makeup of the state Scientific Review Panel, which advises CARB on science issues.


State law mandates that members of the board be appointed to three-year terms, but it turned out that many have served well beyond that time. In fact one member, John Froines, an environmental activist, had been on the Scientific Review Panel since it was established 26 years before.


After the pro-business Pacific Legal Foundation sued, Froines was forced to step down from the Scientific Review Panel post that he had held for so long so that somebody new could be appointed.


Within weeks of Froines removal from the Panel, UCLA decided to end Enstrom's 34-year employment, claiming his research at the UCLA School of Public Health was "not in line with the academic mission of the department."


John Froines is on the faculty at UCLA and was one of the people who voted to let Enstrom go. Mary Nichols, before she became CARB chairwoman, was head of the UCLA Institute of the Environment, where she is still listed as a professor in residence. Froines is also on the Institute faculty.


Although both CARB and UCLA were roundly criticized for the affair, they denied it was in retaliation for Enstrom's scientific observations or outspoken opinions. Many in both the business community and academia challenged that.


In a scathing letter to UCLA Chancellor Gene Block last August, a group of eight business and trade association executives outlined the facts surrounding Enstrom's termination and rejected university attempts to deny that it was retaliation.


"Please be mindful that we are men of experience and we know retaliation when we see it," the letter stated.


Meanwhile Enstrom has appealed his dismissal under the UCLA Whistle Blowers Protection Program and is still on the job, at least for now.


Then there is the roll back of the CARB pollution death count. Last month, after recalculating its numbers, CARB issued a statement saying that using a new methodology, about 9,200 Californians die prematurely each year because of exposure to PM 2.5 - ultra-fine diesel particulate. While that sounds terrible, until that time, CARB had maintained that about 18,000 Californians died prematurely each year from the diesel particulate.


The issue is not whether the annual death count is 9,000 or 18,000 - both of them are bad. The issue is that the CARB pollution death count is a theoretical number, which CARB and its allies in the environmental community consistently use as a real number to promote legislation, win cases in court, establish costly programs, and rally support for their cause.


The problem is that when people use inflated numbers again and again to make their case, then the governing authority suddenly cuts that number in half, reasonable people begin to think that it's just a lot of smoke and mirrors. And that undermines the credibility of the agency and officials that have been swearing by the numbers as though they were more than a scientific educated guess.


The fact is that pollution is not good for you, but there is not one real case of anybody dying from it. That does not mean pollution is not a contributing factor in some deaths, but there are no death certificates that list pollution as a cause of death.


The fact that CARB is drawing fire is not surprising. It is a powerful agency and its decisions are as wide-ranging as are its actions. And once it starts down a road, it is hard to change direction.


As an example, take the trucking community at the Port of Oakland. The Bay Area Air Quality Control District, CARB, the EPA and the port put aside $22 million to help truckers buy newer trucks or retrofit their engines in order to meet CARB standards. Truckers who did not retrofit to meet the standards would not be able to continue servicing port terminals after Jan. 1, 2010. But the $22 million only subsidized the purchase of 200 new trucks and 800 retrofits, leaving 1,300 truckers out in the cold.


Then CARB, under pressure from Bay Area politicians, found another $11 million for the program and extended the deadline for cleaning up trucks to April 30, 2010. But that also resulted in not all truckers being treated equally. The 1,000 truckers who invested in a clean truck or retrofit in 2009 were suddenly competing with 786 truckers who had yet to make the investment. However, the truckers in the second round of grants only got about a quarter of the subsidy amount than the truckers in the first round got. And when the April deadline arrived, there was a backlog of equipment available and many truckers still waiting for their retrofit to be installed.


A similar situation existed when CARB rolled back deadlines for non-drayage truckers because of the business downturn. There were some businesses that made the investment despite the down economy because they felt it would provide them a competitive advantage. And there were retrofit equipment manufacturers, who were counting on the new law to bring them business.


When CARB introduces uncertainty into the business equation, it does little to gain support for the agency's agenda.


But it's perhaps CARB's climate change program that has drawn the most fire. The anti-global warming program is touted by the agency as the gateway to thousands of green jobs. But it also will probably mean the end to a lot of well-paying brown jobs. And all those brown-job industries and brown-job people are beginning to feel the pain.


CARB steadfastly claims that the program - part of Assembly Bill 32 passed by the legislature and signed by the governor in 2008 - will not negatively impact the economy. But that view is widely disputed by many in the business community, who point out that even if the program was successful, it would do little to slow down the worldwide emissions of greenhouse gas into the air.


Does all that mean that CARB is pushing up against the limits of its political power to restructure the state's economy into a new green model? Perhaps. But the California desire to be green is still alive and healthy. It may just be time to review the path from here to there.


-- The Cunningham Report