Today the Environmental Protection Agency took another step toward regulating greenhouse gas (GHG) emissions from stationary sources under the Clean Air Act. Administrator Lisa Jackson issued a final decision on the so-called Johnson Memo, which outlines when EPA’s controls on greenhouse gas emissions will actually take effect.  Although the decision states that new regulations will become effective no sooner than January 2011, EPA is clearly preparing to regulate GHG emissions from industrial facilities. According to EPA, “construction and operating permit requirements for the largest emitting facilities will begin when the first national rule controlling GHGs takes effect.” EPA further states that if “finalized as proposed,’’ the tailpipe rule for cars and trucks “would trigger these requirements in January 2011.” This is the earliest date on which vehicles complying with the new emission standards can be sold in the American market, which EPA has argued will “trigger” requirements on industrial facilities.

EPA’s action today not only paves the way for regulating stationary sources but also underscores the uncertainty and complexity of implementing a federal climate policy under the Clean Air Act. Not only is EPA delaying final release of the “tailoring rule” for industrial sources — a rule that regulators have been planning to release by March 31 — but it is also delaying the effective date “until at least January 2012.” (EPA Fact Sheet)

Federal regulators are still attempting to sort through the complexity of regulating industrial sources; in today’s statement, EPA says it will release details surrounding the tailoring rule “later this spring.” In addition, a White House review conducted by the Office of Management and Budget is a prerequisite for finalizing a regulation. If there’s any certainty at all in this complex process, it is that federal agencies are not backing down from their agenda to expand the scope of their regulatory powers.

Over the weekend the President indicated that he will be recess appointing both Democrat nominees (Craig Becker and Mark Pearce) to the National Labor Relations Board (NLRB.) As Mr. Becker begins his Board service, it’s important to point out that he has committed to a very limited recusal of business that may go before the Board.

In his response to Senators’ questions, Becker committed to recusing himself for one year from any matters including either union internationals – the AFL-CIO or SEIU. This limited recusal is highly suspect. Most Board actions don’t normally involve internationals, but usually address conflicts between a local labor union and an employer. While Mr. Becker pledges not to be involved in the decisions of major labor organizations, he has not expressed a willingness to recuse himself of any decisions affecting labor local – and it’s entirely possible to make major changes in applying labor law through these decisions. This issue was noted by the letter sent from all 41 Republican Senators last week.

Other items of interest:

Bret Jacobson at the thetruthaboutefca.com blog notes an observation from former NLRB Member John Raudabaugh:

The NLRB is now 3 to 1. On August 27, it will be 3 to 0. Not since the New Deal and first six years of the NLRB, 1935-1941, has the Board been all Democrats or all from one party. Labor law reform followed in 1947 to balance the scales. Is the past to be prologue.

Click here to read a report by John Raudabaugh on the consequences of the new appointments to the NLRB.

Mike Eastman at the U.S. Chamber also highlights what to expect from the NLRB now that Becker has been seated:

Last fall, anticipating such an outcome, the Chamber published a report, The National Labor Relations Board in the Obama Administration: What Changes to Expect, in which we summarize more than 50 NLRB decisions that we believe are most likely to be reversed by the current NLRB. While some of these cases are high profile, such as Dana/Metaldyne that effectively gives employees notice before a union and an employer can circumvent the law’s secret ballot process for union recognition, others are much less well know. However, reversal of these technical rules, such as whether permanent strike replacement workers may be hired on an at-will basis, as discussed in Jones Plastics and Engineering Co., collectively will increase union leverage in every aspect of labor-management relations.

To access this report click here.

For related blog posts on this issue click here.

NPR’s “Morning Edition” news magazine this morning carried a segment about doctors who now regard Vitamin D deficiency as a major health problem in the United States, but one easily treated.

“There’s overwhelming evidence … that increasing your vitamin D intake can make substantial improvement in your overall health and welfare,” says Dr. Michael Holick of Boston University. “And there is no downside to increasing your vitamin D intake. As a result I think that most people are now getting on the bandwagon.

Holick is leading the band. Forty years ago, he discovered the active form of the vitamin, 1,25-dihydroxyvitamin D. He has written several popular books on the subject and has another one, The Vitamin D Solution, coming out next month. Its cover calls vitamin D deficiency “our most common health problem.”

Meanwhile, in the new health care bill…

• WHTM-TV (Harrisburg, PA), “Tanning Salon Owners Steamed Over New Tax”
• NJ.com, “Tanning salon tax: health care overhaul burns a favorite New Jersey pastime”
• Madison.com (Wisconsin)  “New tax burns tanning salon owners”
• ABC30.com (Fresno), “Health Bill Imposes Tax on Tanning Beds”

Politico, “Next front: Selling what Congress did:

Starting Monday, a coalition of progressive groups — from labor unions to health care advocates — will sink millions of dollars into television advertising and sponsor grass-roots events in swing House districts thanking Democrats for passing the law and highlighting its importance for average Americans.

“We’re going to let our friends know we are going to be there for them,” said AFSCME President Gerald McEntee. “We expect in three months, the American people will understand the bill and they will be happy and satisfied with it.”

More on Rep. Henry Waxman demanding companies explain their accounting charges for health care, from Andy McCarthy, a former U.S. prosecutor, at National Review’s The Corner, “Thugocracy Whipsaws Capitalism“:

I worked for many years in the U.S. Attorney’s Office in whose backyard was Wall Street.

If a company like AT&T failed to make a legally mandated restatement of its financial position while continuing to participate in the capital markets, it would be investigated and the responsible management officials would likely find themselves prosecuted while the SEC, concurrently, went after the company and its officials in civil enforcement suits. There are prosecutors and investigators who would salivate at the prospect of doing such a career-making case.

If we are now under a system where disclosure gets you a public whipping and other threats by the Powers That Be while nondisclosure promises the ruinous expenses of defending against criminal investigations and civil enforcement, this is no longer anything but a thugocracy.

If history is any guide, we’ll soon see inventive class action lawyers join in the harassment, suing companies that make the accounting charges.

The duration of a Presidential recess appointment usually causes confusion. We rely on the Congressional Research Service’s 2005 paper on the topic, “Recess Appointments:A Legal Overview, which indicates that a recess appointment lasts until the conclusion of the next Senate session. In the case of Craig Becker and Mark Pearce to be appointed to the National Labor Relations Board, their appointments would be in force through the end of 2011.

Both Becker and Pearce would have had (or will have) longer terms if confirmed by the Senate. The NLRB’s terms are five years, with staggered dates of service. President Obama nominated Becker to a term that expires Dec. 16, 2014, and Pearce to a term that expires Aug. 27, 2013.

The Republican nominee, Brian Hayes, whom the President did not appoint, was nominated to a term that expires Dec. 16, 2012.

The White House’s news release says the recess appointments will all stay in the Senate for confirmation. It’s hard to see how Republican Senators would ever allow Becker or Pearce to move forward.

Still, Hayes’ pending nomination gives the Senate Democrats some political leverage: You want Hayes, confirm all three. Or, more likely, you want Hayes, confirm the Presidential nominee for NLRB general counsel. As we noted Saturday: “The term of the general counsel, Ronald Meisburg, a Bush appointee, also expires in August. Unlike most federal branch agencies, the NLRB’s general counsel must be confirmed by the Senate, so more maneuvering is possible.”

President Obama’s decision to make 15 recess appointments contributed to the Administration’s trade agenda by filling several top trade-related spots.

• Eric L. Hirschhorn: Under Secretary of Commerce for Export Administration and head of the Bureau of Industry and Security, Department of Commerce
• Francisco “Frank” J. Sánchez: Under Secretary for International Trade, Department of Commerce
• Michael Punke: Deputy Trade Representative – Geneva, Office of the United States Trade Representative
• Islam A. Siddiqui: Nominee for Chief Agricultural Negotiator, Office of the U.S. Trade Representative

U.S. Trade Representative Ron Kirk issued several news releases welcoming the new USTR appointees:

“USTR Kirk Welcomes Deputy USTR Michael Punke“, excerpt:

Michael Punke will be a valuable asset as WTO Ambassador as USTR works to conclude a balanced and ambitious Doha Round of trade negotiations that will benefit American workers, farmers, ranchers, manufacturers, and service providers. Michael will also work on behalf of American businesses and entrepreneurs at the WTO – helping USTR to remove trade barriers, increase exports, and support well-paying jobs here at home.

“USTR Kirk Welcomes Chief Agricultural Negotiator Isi Siddiqui“:

I am proud to officially welcome Isi Siddiqui as USTR’s Chief Agricultural Negotiator. He brings to this office incredible agricultural expertise built over years of work in both the government and private sector, and can be counted on to stand up for American farmers, ranchers, and families in all our negotiations – from the Doha round talks to bilateral discussions. If we want to double American exports in the next five years, we have to seize every opportunity to grow agricultural exports, as well as exports of goods and services. Isi is going to make sure we don’t leave any of those opportunities on the table.

Kirk’s hometown paper, The Dallas Morning News, reported the appointments, “Obama recess appointments include help for trade ambassador Ron Kirk,” citing Kirk’s recent objections to the vacancies made in a recent speech at the National Press Club:

At some point, this begins to strain our credibility and the good will that we have worked so hard to regenerate around the world, because the world believes you don’t care. You don’t have an ambassador in Geneva, how can you be serious about the Doha Round?

The Wall Street Journal reported that Sen. Jim Bunning (R-KY) had blocked the nominations of Siddiqui and Punke to apply pressure on U.S. trade negotiators to address a dispute over Canada’s handling of Kentucky tobacco.

Here’s an angle we had not come across before, as reported by Inside Higher Ed, “Obama Recess Appointments Could Help Grad Unions“:

President Obama on Saturday announced that he was making recess appointments of 15 of his nominees whose confirmations have been blocked by Senate Republicans’ refusal to allow votes on them — and two appointees in particular could lead to a major change for higher education. Those appointees — Craig Becker and Mark Pearce — will restore a quorum to the National Labor Relations Board. The NLRB has lacked a quorum throughout the Obama administration, leading to legal challenges to its right to decide cases. One of the major goals for academic labor for the Obama administration was to see a reversal of the 2004 NLRB decision that effectively shut down the unionization of graduate student teaching assistants at private universities. But labor groups have hesitated to bring a challenge to the ruling while the NLRB lacked a quorum. The leaders of private universities generally oppose unionization of graduate students.

Historical context follows.

Inside Higher Ed, January 28, 2009, “Return of Grad Union Movement“:

Unions worked hard for President Obama in November — and those in academic unions have had high hopes that his actions would revive the movement to organize graduate teaching assistants at private universities.

In his first move related to the National Labor Relations Board, Obama has cheered those unions by designating as chair Wilma B. Liebman, who is on record as backing collective bargaining rights for private universities’ graduate teaching assistants. Liebman was originally appointed to the NLRB by President Clinton, and she was one of two members who wrote a strong dissent to the 2004 decision that effectively shut down union organizing at private institutions. While she has the same vote as chair as do other members, the signs suggest that her views won’t be in the minority.

New York Times, July 16, 2004, “Labor Board Says Graduate Students at Private Universities have No Right to Unionize“:

The fast-growing movement to unionize graduate students at the nation’s private universities suffered a crushing setback yesterday when the National Labor Relations Board reversed itself and ruled that students who worked as research and teaching assistants did not have the right to unionize.

In a case involving Brown University, the labor board ruled 3 to 2 that graduate teaching and research assistants were essentially students, not workers, and thus should not have the right to unionize to negotiate over wages, benefits and other conditions of employment.

On Tuesday, when President Obama signs the reconciliation bill — with its nationalization of the student loan program — there will no doubt be claims that a college education will get cheaper. But thanks to the recess appointments to the NLRB, sometime in the next couple of years expect to see a university issue a news release, “Graduate tuitions raised to deal with higher costs, wage demands.”

More on the President’s announcement of his intention to make recess appointments of 15 officials, including SEIU counsel and radical labor theorist Craig Becker as well as Buffalo labor lawyer, to the National Labor Relations Board (extensive Shopfloor coverage from the weekend starting here). From Bloomberg, “Labor Agenda May Advance, Business Sees ‘Red Alert’ on Becker“:

March 29 (Bloomberg) — Efforts by labor unions to expand employee organizing may gain after President Barack Obama, rejecting objections from Republicans and business groups, appointed Craig Becker to the National Labor Relations Board.

Obama announced plans on March 27 to name Becker, a lawyer and Democrat who represented the AFL-CIO and the Service Employees International Union, using executive powers to bypass confirmation by the Senate, which had blocked a vote this month.

Becker, opposed by groups led by the National Association of Manufacturers, will be named along with lawyer Mark Pearce, a Democrat, providing a quorum to clear a case backlog including disputes with casino owner MGM Mirage and auto-parts maker Dana Holding Corp.

Senate Majority Leader Harry Reid (D-NV), via AP: “Regrettably, Senate Republicans have dedicated themselves to a failed strategy to cripple President Obama’s economic initiatives by stalling key administration nominees at every turn.”

Sen. John McCain (R-AZ), a statement:

I am very disappointed that the President chose to recess appoint 15 people, including Mr. Craig Becker to serve on the National Labor Relations Board (NLRB). The U.S. Senate rejected this highly controversial and partisan nominee, and once again the Administration showed that it had little respect for the time honored constitutional roles and procedures of Congress. This is clear payback by the Administration to organized labor. Time and again questions have been raised over Mr. Becker’s ability to serve in an honest and impartial manner on the NLRB, yet this Administration chose to ignore the questions and concerns and instead forced their will on the American people.

• Wall Street Journal, “Tensions Flare After Recess Maneuver”
  Chris Stirewalt, Washington Examiner column, “What thrills the Left will scare away the center.”
  Daily Beast, “GOP Fired Up Over Appointments”
  New York Times, “Democrats defend appointments“

Congress has broken for a two-week recess to rush into the warm embrace of the constituents. The President returns from Afghanistan with health care and the economy still on his agenda. In Washington, D.C., the cherry blossoms should reach their peak later this week when temperatures near 80.

The Senate reconvenes at 2 p.m. Monday, April 12, and debates H.R. 4851, the Continuing Extension Act, which extends unemployment, COBRA benefits and other things through April 30. The House reconvenes at 2 p.m. Tuesday, April 13.

President Obama continues selling the just-passed health care legislation to the public, adding the student loan nationalization to the pitch. On Tuesday, he heads to the Alexandria campus of Northern Virginia Community College for a signing ceremony for the Health Care and Education Reconciliation Act. Later that day he meets with President Sarkozy of France at the White House. On Thursday, the President travels to Maine for a health care event. Friday, he’s jaunts to high-unemployment Charlotte, North Carolina to talk about the economy. Banks to blame.

The President and First Lady hold a Forum on Workplace Flexibility on Wednesday at the White House.

Executive Branch: Secretary of State Hilary Clinton travels to Ottawa, Canada, and Gatineau, Quebec, for the G8 Foreign Ministers meeting today and Tuesday. Before the Ministerial, Secretary Clinton will attend a meeting of the Foreign Ministers of the five Arctic Coastal States to ponder a military buildup and resource development along the Northwest Passage. Interior Secretary Ken Salazar joins her at the Arctic confab. Treasury Secretary Geithner and a cast of thousands participate in Treasury’s “Women in Finance” educational program today. Joining the President at Northern Virginia Community College on Tuesday will be Vice President Joe Biden and Education Secretary Arne Duncan.

Economic Reports: From The Seattle Times: “On Monday, the Commerce Department releases figures on personal income and spending for February. On Tuesday is the Standard & Poor’s/Case-Shiller index of January home prices in 20 cities… and The Conference Board releases its consumer confidence index for March. On Wednesday, the Commerce Department releases the report on factory orders for February. On Thursday is the Institute for Supply Management’s monthly report on the manufacturing sector, and the latest figures on consumer debt and auto sales.” The March employment figures come up Friday, when the markets are closed for Good Friday. For more, see Neil Irwin’s weekly column at The Washington Post.

And in case you missed it, President Obama announced plans on Saturday to make recess appointments of 15 officials, including SEIU counsel Craig Becker and Buffalo labor lawyer Mark Pearce to the National Labor Relations Board. Bloomberg follows up, “Labor Agenda May Advance, Business Sees ‘Red Alert’ on Becker.”

Chairman Henry Waxman (D-CA) of the House Energy and Commerce Committee is calling major corporate executives to a hearing to challenge the accounting charges their companies have made in response to passage of the health care legislation. (Bloomberg, “AT&T, Deere CEOs Called by Waxman to Back Up Health-Bill Costs.”)

From the committee’s homepage:

The Subcommittee on Oversight and Investigations will hold a hearing on April 21, 2010, regarding claims by Caterpillar, Verizon, and Deere that provisions in the new health care reform law could adversely affect their company’s ability to provide health insurance to their employees. These assertions appear to conflict with independent analyses, which show that the new law will expand coverage and bring down costs.

They’re not “claims,” they are financial and accounting decisions the companies are required by law to make and report. President John Engler of the National Association of Manufacturers addressed the company charges in an interview with Fox News’ Neil Cavuto Friday. Engler:

There was a suggestion, “Oh, these companies are overstating this, they’re making it up.” But, remember, the CEO and the CFO sign …under Sarbanes-Oxley under penalty of law the accuracy of the statements. They cannot make this up. Cannot!

The Administration originally tried to spin the charges as hyped or “irresponsible,” but the White House has obviously decided to change its approach. White House economic advisor Valerie Jarrett was just on ABC’s “This Week,” and she responded to the questions about the company charges as serious ones warranting a serious response.

Jarrett argued the companies will benefit more in the big picture, long run, from the health care legislation even with the charge offs. And, she continued, the White House has talked to the Business Roundtable during the drafting of the health care legislation, and agreed with the group’s request to delay parts of the law’s effects until 2013. So the White House now, after a little hemming and hawing, clearly regards the companies’ actions and businesses’ objections as legitimate.

If there’s anything that’s suspect, it’s the always hyperpoliticized accusations of the Oversight and Investigations panel. As The Wall Street Journal editorialized Saturday in “The ObamaCare Writedown“:

Black-letter financial accounting rules require that corporations immediately restate their earnings to reflect the present value of their long-term health liabilities, including a higher tax burden. Should these companies have played chicken with the Securities and Exchange Commission to avoid this politically inconvenient reality? Democrats don’t like what their bill is doing in the real world, so they now want to intimidate CEOs into keeping quiet.