First Name | Keith |
---|---|
Last Name | Bishop |
Email Address | kbishop@post.harvard.edu |
Affiliation | |
Subject | Proposed Tire Pressure Regulations |
Comment | I have the following comments with respect to the proposed adoption of a new Section 95550, Title 17, California Code of Regulations which would provide all Automotive Service Providers to perform tire inflation service on all passenger vehicles that are brought in for service or repair (the “Proposed Regulation”). 1. The Legislature has Unconstitutionally Delegated Uncontrolled Power the Air Resources Board (the “Board”) to Adopt Regulations. The Board cites the following sections of the California Health & Safety Code as authority for Proposed Regulation: Sections 38510, 38560, 39600, and 39601. Section 38510 simply charges the Board with authority for “monitoring and regulating sources of emissions”. Section 38560 simply directs the Board to adopt regulations that “shall achieve the maximum technologically feasible and cost-effective reductions in greenhouse gas emissions from those sources or categories of sources, in furtherance of achieving the statewide greenhouse gas emissions limit.” Section 39600 requires the Board to do all acts as may be necessary and proper for the execution of its powers and duties. Section 39601 requires that the Board adopt regulations in compliance with the rulemaking provisions of the California Administrative Procedure Act. Nearly all human activity involves the emission of greenhouse gasses. For example, the U.S. Environmental Protection Agency estimates that the average person emits 2.3 pounds (1 kg.) of carbon dioxide simply by breathing. This means that Californians emit approximately 14 million metric tons of carbon dioxide per year just by breathing. Other activities, whether personal or commercial, will almost invariably result in the emission of carbon dioxide or other greenhouse gases. Because the legislature has bestowed on the Board the authority to regulate greenhouse gas emissions, it has delegated to the Board authority to regulate virtually all human activity. Moreover, the legislature has given the Board absolute discretion under these statutes. Thus, the legislature has provided no limits on what the Board can regulate or standards for how the Board regulates. Because the legislature’s delegation to the Board is so broad, there is simply no way for a reviewing court, or anyone else, to determine whether the Board has kept within its delegated authority. For these reasons, the statutes cited by the Board as authority for the Proposed Regulation constitute an unconstitutional delegation of legislative power. See Dominguez Land Corp. v. Daugherty, 196 Cal. 468, 484 (1925) (“It is well settled that the legislature may commit to an administrative officer the power to determine whether the facts of a particular case bring it within a rule or standard previously established by the legislature for his governance . . . . If, however, no standard by which the officer is to be governed be prescribed by the lawmakers, then there is an attempt to entrust a mere administrative officer with the plenary power of the legislature, and there will then be no guard against possible arbitrary action.") and People’s Federal Savings & Loan Association v. State Franchise Tax Board, 110 Cal. App. 2d 696, 700 (1952) (“The delegation of such uncontrolled power was void as an attempt to delegate legislative power to an administrative officer.”). The issue of unfettered delegation is not merely academic. The Board is not elected. Thus Board members are not directly accountable to the People of California. Further, the absence of any standards makes it all but impossible for a court to meaningfully review the Board's actions. 2. The Changes in the Modified Text are Substantial and are not Sufficiently Related to the Original Text. The modified text of the Proposed Regulation makes several substantial changes. For example, the modified text includes a new requirement that customers affirm certain matters in order to decline service. Further, the modified text includes a new requirement with respect to disclosures on the vehicle service invoice. A reasonable member of the directly affected public is an ordinary consumer. Ordinary consumers would not have determined from the original notice that these changes would have resulted. 1 CCR Section 42. Accordingly, the modified text should have been made available for at least 45 days. Cal. Govt. Code Sections 11346.4 & 11346.8(c). 3. The Proposed Regulation will Adversely Affect Consumers. The Proposed Regulation will adversely affect consumers. In most cases, consumers will not be specifically seeking tire inflation services when bringing their vehicle to an automotive service provider. Thus, they are unlikely to have engaged in comparison-shopping for tire inflation services before bringing the car in for service. Automotive service providers are likely to take advantage of this fact by telling the consumer that they are legally obligated to perform a tire check and inflation and that they must note any refusal of the service on the invoice. Nothing in the Proposed Regulation requires the automotive service provider to disclose to the consumer (either orally or in writing) that the service may be declined. Moreover, a consumer who has taken the time to take his vehicle to the provider is not likely to want to incur additional time and expense in taking his car to another provider who offers the service at a lower cost. As a result, significant price gouging is likely to occur if the Proposed Regulation is adopted. 4. The Board is Implicitly Concluding that the People of California do not, and Cannot, make Rational Decisions. Assuming the Board's assumptions concerning the costs associated with under inflated tires are correct and that the public would save money through proper inflation, the Board does explain why it believes that people do not and will not maintain proper tire inflation. Thus, implicit in the Board's Proposed Regulation is the conclusion that people will not, even if informed, make economically rational decisions. There is no basis for the Board's view that Californians are inherently unable to make rational decisions or properly maintain their own property. In conclusion, the Proposed Regulation represents an unconstitutional delegation of legislative power to the Board; the modified text is not sufficiently related to the originally proposed text; the Proposed Regulation will likely result in price gouging; and the Board should not presume that the people cannot make rational decisions. Very Truly Yours, Keith Paul Bishop |
Attachment | |
Original File Name | |
Date and Time Comment Was Submitted | 2010-01-22 17:51:53 |
If you have any questions or comments please contact Clerk of the Board at (916) 322-5594.