If energy needs to be saved, there are good ways to do it.
                                                               Government product regulation is not one of them

Friday, January 6, 2012

As also a Virginia Freedom Bill is launched: What chance of Local versus Federal Law?

There is a further post about this, with bill details and background, here (January 14)

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Update (on day of post, January 6):
Unlike many other states, Virginia does have a history of local light bulb manufacture.
General Electric had a plant at Winchester, Virginia, said to be the last major US incandescent
manufacturing facility (some American incandescent manufacture remains), a plant which closed controversially in 2010, as GE switched to invest in China.
See the contemporary 2010 articles: Washington Post, The Guardian
I will make a follow up post on Virginia.
#   #   #

At least 7 American states have launched local freedom of manufacture and sale bills, which in Texas as posted has been enacted (June 2011).

Now comes the news that Virginia House delegate Bob Marshall (more) is preparing to defend a similar freedom for Virginia.

Virginia Statehouse News article 5 January 2012 by Bill McMorris, with my highlighting
(copy also on Virginia Watchdog)

VA tries to dodge fed ban on incandescent lightbulbs

Delegate Bob Marshall hopes to do for lightbulbs in Virginia what California did for marijuana and Arizona did for guns. But he faces an uphill climb.
The Manassas Republican introduced a bill to allow makers of incandescent lightbulbs to set up shop in Virginia after a federal ban on the bulbs went into effect Jan. 1.
Marshall, a skeptic of global warming, said he has safety concerns about the compact fluorescent bulbs, or CFBs, that are supplanting traditional lightbulbs. The more energy-efficient bulbs carry traces of mercury, and federal guidelines recommend evacuating the site of a broken bulb for up to 10 minutes before trying to clean it.

"The solution is worse than the problem," he said, "When you drop one of these mercury bulbs you have hazardous materials. It's a health risk that you wouldn't have with one of Mr. (Thomas) Edison's bulbs."

The same federal guidelines, however, say mercury levels fall below hazardous standards, and increased efficiency has resulted in lower levels of mercury.

Marshall's proposal would avoid the Interstate Commerce Clause in federal law by limiting distribution to the state. The federal government has used the clause to push regulation on items including guns and drugs. The legislation mirrors efforts in Arizona, where in-state gun magazines have skirted federal firearm regulations, as well as California's own medical-marijuana industry.

"I have identified other powers reserved to states under the 10th Amendment that we can manufacture these in Virginia without federal interference," he said. "This is the kind of economic development I get behind. We're not tossing taxpayer money at companies, we are just allowing them to exist."

Constitutional scholars are skeptical.
Saikrishna Prakash, who teaches constitutional law at the University of Virginia in Charlottesville, said Marshall's efforts may not hold up in court.

"If the federal government does not want these bulbs built, they can ban interstate and foreign trade and, to make the ban more effective, they can ban intrastate trade to prevent the bulbs from trickling into the market," he said.

Prakash said the lightbulb policy could go the way of California's legalization of medical-marijuana production in 1996.
In the 2004 case, Gonzales v. Raich, the Supreme Court ruled even if marijuana was grown for personal medical use, legal under state law, the federal government can ban production under interests of interstate commerce.

"Supreme Court doctrine over the years has indicated that Congress can regulate intrastate sales if it relates to interstate sales, so I'm not sure it would hold up," Prakash said.

Marshall's proposal says the Virginia Attorney General's Office would defend bulb makers if the federal government tried to stop production.

"If we tell them they have the protection of the state of Virginia and our attorney general, then they will say that Virginia is the place to do business," he said.

Caroline Gibson, spokeswoman for Republican Attorney General Ken Cuccinelli, said the office has not yet taken a position on the proposal.

Under a 2007 federal law, the U.S. Congress adopted efficiency standards that did away with traditional 100-watt light bulbs. The law led to increased production of CFBs, and light-emitting diode bulbs, or LEDs, which can be up to 10-times more expensive than traditional bulbs but save energy costs over time.

Former Republican President George W. Bush signed the bill into law, but his contemporary party mates, including Marshall, have taken aim at the regulation.

"This was not a response to consumer demand; it was the federal government interfering in something it had no business doing," he said.

Should the proposal become law, there's a decent chance it could survive:
Gonzales v. Raich has not interrupted the medical-marijuana trade in California, which has grown into a $2 billion industry with more than 2,000 dispensaries.

"You have all of these U.S. attorneys and marshals and FBI and they have to determine who they're going after, and they decided to spend their resources elsewhere," Prakash said. "That doesn't mean it's legal, it just means the federal government does not have the resources to shut down the activity."

The federal government's ability to crack down on traditional incandescent light bulbs has even fewer resources after congressional Republicans defunded the enforcement program in December.

But even if the law passes, Virginia is unlikely to attract any new business, since energy companies have invested millions preparing for the bulb ban, said Joe Higbee, spokesman for the National Electrical Manufacturers Association, or NEMA, an industry lobbying group based in Rosslyn.

"The traditional incandescent bulb is not being made anymore," he said. "People are still able to purchase incandescent bulbs; they are more advanced and efficient because manufacturers are looking ahead."

Marshall is not worried.

"The market is still there, and I think there are plenty of entrepreneurs in Virginia who will take the industry forward if we provide them protection," he said.

Environmental groups have pledged to contest Marshall's proposal.

"We don't want any type of circumvention of these environmental protections," said Lisa Guthrie, executive director of the Virginia League of Conservation Voters, or VLCV.

State Sen. Dave Marsden, D-Alexandria, does not expect the bill — or the spirit behind it — to advance far.

"I don't think it's going anywhere; they tried this same thing with guns in the past and it hasn't gone anywhere," he said. "This whole 'keep-it-in-Virginia' mindset makes Virginia look like it has secessionist tones, which is not good for business."

Marshall said Wednesday that he plans to move forward with the proposal when the General Assembly 2012 session begins. The session starts next week.

Comment: The Federal v State issue

The federal versus local state issue has of course arisen also with regard to the other state bills, as linked above. As with drugs and guns, the letter of the law is one thing - local enforcement another.
In other words, it depends on local support.

In this regard, note the difference as well as the similarity applying to Arizona and Texas,
and their local legislation.

where Gov Jan Brewer vetoed the local light bulb freedom bill, as reported in the Arizona Capitol Times article of May 11 2010, excerpts:

Brewer said the goal of H2337 [local light bulb sales] can be more easily achieved with another bill she signed in April, H2307, that states that any firearm manufactured wholly in Arizona is not subject to federal regulations if it is not sold outside the state.

Brewer wrote in her veto letter that the guns bill is a better way for Arizona to assert its 10th Amendment rights because the state would need to begin mining and processing tungsten, a critical component of incandescent light bulbs.

“I believe that the Firearms Freedom Act is the more immediate and practical vehicle for achieving this objective,” Brewer wrote in her veto letter. “HB2337 would take many more years to achieve its goal.”

Also, a letter from Gov Brewer explaining her stance, here (pdf document).

Notice that she says she believed in the case, and could have asserted state rights, according to the 10th Amendment: as she says, she had already done so, with local Healthcare, and with the Firearms Freedom Act - but chose not to do so in the case of local light bulb sales, because of "no active tungsten mining or mineral processing facilities in Arizona".

The lack of local tungsten or its processing seems a lame excuse:
The iron in Arizona made firearms does not come from Arizona mined or processed iron ore!
See Arizona Government on mining resources (2010 map, pdf), and their (latest) 2007 mining production report.

The import of "generic non-specific components" is allowed according to most commerce clause interpretation in other bills - what is prohibited is rather the import of specific, significant parts.
In other words: tungsten itself has a lot of other uses in other states - so import is not ruled out.
However tungsten filaments have few other uses - so they would have to be made locally.
Again, comparing with Arizona gun law legislation, notice how special parts are indeed imported, and how hardened steel etc is produced outside Arizona.

Besides, nearly all manufactured products, in any locality, will of course have some non-locally made component.
The logic of "local manufacture and sale", of light bulbs as of other products in other state bills, in no case includes the necessity of local mining of any and every mineral involved.

The clear impression is that Gov Brewer did not sign it for some other reason, which she did not wish to mention.

More importantly overall here,
Gov Brewer's actions with healthcare and firearms shows that if individual states are against federal legislation, it seems difficult to stop them.
There is also a moral isssue: if a federal law should apply everywhere, then it should also apply to those states who wish to subject their residents to stricter interpretations of the law. In other words, California should not be allowed any earlier or stricter light bulb ban, any more than Arizona or others should be allowed to avoid them.
The European Union also allows such local "stricter interpretation", when if a federal law is (questionably) needed in the first place, it should be the same for all, particularly if product safety is not an issue.

As for Texas,
covered earlier, I understand that Gov Perry's office dealt with both local and federal attorney generals over the issue, before Gov Perry signed the bill, which presumably he would not do if he did not consider it legal - also in the absence of Texas tungsten mining!


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