American Habits: When lawmakers outsource their powers to California regulators

Brian Wanner is the owner of Peters Brothers Trucking in Lenhartsville, Pennsylvania. But on some of the most important decisions facing his business he doesn’t call the shots. Instead, he takes orders from regulators . . . in California — a state he doesn’t even do business in. That’s because the Pennsylvania Department of Environmental Protection has, since 2002, illegally let Sacramento bureaucrats dictate the rules for diesel trucks in the Keystone State.

In 2019 and 2021 California Air Resources Board revised California’s rules governing diesel trucks. Now California imposes an aggressive schedule of evermore demanding emission standards — which are projected to dramatically raise the cost of new trucks in the coming years.

On top of that, the new regulations require Wanner to buy California-compliant extended warranties for his trucks. Those warranties are useless to Peters Brothers because the company has a staff of full-time mechanics who are more than capable of handling any issues that might come up.

Wanner is of course very concerned; these rules will drive up the cost of keeping his fleet on the road. And we should all be concerned because higher freight costs have predictable inflationary consequences for consumers. But more fundamentally, all Pennsylvanians should be outraged by their state government’s decision to hand over power to regulators more than two thousand miles away who are completely unaccountable to the people of Pennsylvania.

These rules were imported from California without sign-off from any Pennsylvania state official — let alone the people’s elected representatives in the General Assembly. No one stopped to think about the impact on Pennsylvania businesses and consumers before these new rules became the law of the land. No one in Pennsylvania had any say at all.

How could that come to be?

In 2002, the Commonwealth Environmental Quality Board announced that Pennsylvania law would incorporate California standards for diesel trucks on a rolling basis. As the Secretary of the Department of Environmental Protection recently explained, this means that Pennsylvania regulation automatically updates whenever California law changes.

In other words, Wanner now answers to the California Air Resources Board — which is totally unaccountable to the People of Pennsylvania. No wonder he is seriously contemplating moving his operations to a freer state. But finding one might not be easy.

While Pennsylvania is among the worst offenders, at least 12 states have adopted California’s regulatory standards for new vehicles without involving state lawmakers. In each case, unelected state officials relied on delegations of rulemaking powers that they stretched to achieve their preferred regulatory agenda.

For example, at least 10 states have adopted new California standards for light duty vehicles, which will phase out combustible engines in favor of electric vehicles over the next decade. In six out of those ten, the state agency made this monumentally important decision without any clear direction from the Legislature.

One would expect that state lawmakers would decide for themselves whether to follow California’s extreme regulatory agenda. That’s the way things are supposed to work. In a free society, our elected representatives should make the law. But unfortunately, lawmakers are usually happy to pass the buck.

Too often politicians prefer to outsource their lawmaking powers to others. Call it laziness, or spinelessness. But when our representatives give away the power to make law, we lose control of our government. And, at that point, we should expect more red tape from bureaucrats who think they know best.

This is the mischief afoot in Pennsylvania — as in many other states, to say nothing of Washington, DC. Our Constitution is premised on the idea that elected officials would be jealous guardians of their power and their political prerogatives. In the words of James Madison in Federalist 51, “ambition must be made to counteract ambition.” But as our elected officials have abandoned their ambition, their power has been gobbled up by the ever-expanding administrative state at the federal and state levels.

If representative government is to endure, we must insist that only the people’s elected representatives make the law. The courts can and should slap down executive agencies when they seek to exercise lawmaking power that isn’t theirs. Courts must cast an even more skeptical eye when agencies try to give that power away to the unelected bureaucrats of some other state.

This op-ed was originally published at American Habits on December 6, 2023.