Stock

David J. Bier

Customs and Border Protection’s website shows a decline in Border Patrol arrests of convicted criminals in fiscal year 2020 followed by increases in FY 2021 and FY 2022. Many people cite these statistics as evidence that President Biden’s policies have caused a surge in convicted criminals crossing the border. But the 2020 decline never happened. In fact, the spike in criminal arrests started in 2020, and criminal arrests have trended downward under the Biden administration.

More complete CBP data obtained via Freedom of Information Act (FOIA) requests show that CBP’s webpage excludes all criminals arrested under Title 42 (health law). The number of criminals “apprehended” under Title 8 (immigration law) went down in 2020 simply because those people were now being arrested under a different statute, not because they stopped coming. Biden’s policies did not cause a spike in criminal migration. In fact, President Trump’s invocation of Title 42 appears to have caused an increase that escalated to the highest level on record to that point of 2,366 convicts by December 2020.

The daily data show that criminals took a few weeks to realize that Title 42 had brought with it a new paradigm where the probability of criminal prosecution for illegal entry (or reentry) had declined substantially for people with other criminal convictions, but by the summer of 2020, the number of criminals arrested was already substantially higher than previously. In October, the numbers arrested soared to previously unseen highs. December 7, 2020 might be a day that will live in infamy as the all‐​time daily record for criminal arrests.

One reason for the increase might be that Title 42 substantially reduced the likelihood of criminal prosecution for people with prior criminal convictions. The probability that Border Patrol would refer someone with a criminal conviction for further criminal prosecution fell from 60 percent in February 2020 (which was already down from a high of 78 percent in June 2018 to 12 percent in one month. Although prosecutions increased toward the end of 2020, they failed to keep up with the new arrivals. The lack of criminal prosecution came in addition to Title 42’s fast‐​release policy that put people back into Mexico within hours rather than days. Learning about this new dynamic likely led to more attempts to cross illegally by criminals.

President Trump’s immigration policies were not bad for criminal immigrants. His immigration policies backfired and created incentives for criminals to cross illegally. The former president preferred to spend $15 billion on a border wall than to pay to prosecute criminals. In 2018, his administration prioritized prosecuting asylum‐​seeking parents with children over sex offenders and human traffickers. Border Patrol agents said that during family separation, they were being forced into “sending the really bad guys back without prosecution. We are learning after the fact that, for instance, sex offenders were released.”

Despite the uptick, it is important to note that criminals made up just 0.7 percent of Border Patrol’s 2023 arrests. Moreover, although some serious criminals do attempt to enter illegally, nearly half of the convictions reported by CBP were for illegal entry or reentry into the United States. Only 8 percent were for assault, battery, domestic violence, sex offenses, and homicide. Regardless, Border Patrol spends far too much time arresting and detaining peaceful people who otherwise would like to contribute to this country. A better legal immigration policy would let Border Patrol focus on real threats to Americans.

Neal McCluskey

The Biden’s administration’s plan to greatly reduce student loan repayment, as I showed a couple of weeks ago, will be a boon to people who borrowed for undergraduate education. Under current income‐​driven repayment, a borrower with average undergrad‐​only federal student debt and average new graduate earnings would not only fully repay their debt, they would provide taxpayers a small, $216 profit. Under the administration’s much more generous SAVE proposal, in contrast, the borrower would cost taxpayers $6,362.

Undergraduate debt, however, is not the big number for many borrowers. That is grad school debt, which is not capped by Washington as is undergraduate borrowing. Today, I compare current IDR and SAVE repayment for someone with undergrad and graduate school debt.

With graduate debt, the biggest change from undergrad‐​only is the horizon for forgiveness, which changes from 20 to 25 years. Whatever is left after 25 years of qualifying payments is canceled.

For estimates of current IDR and SAVE, I start with approximate first year earnings for a new graduate degree graduate with average graduate degree debt. Because there are many types of graduate degrees—master’s, doctorate, professional school—I use the average salary for an assistant professor (about $83,000) which happens to most closely coincide with average total student debt ($91,460) of someone with a graduate degree in the federal Digest of Education Statistics. That includes undergrad and grad debt. I use a 3.3 percent earnings increase each year, except in the 6th, 11th, and 16th years, when the borrower receives a 5.3 percent raise. I also increase the federal poverty level for a single person, which determines how much income is walled off from repayment, by 3.3 percent each year. (Basically, 3.3. percent is the inflation rate.)

For current IDR, 10 percent of discretionary income (what remains after removing protected income) must be repaid. Discretionary income is everything above 150 percent of the federal poverty line. For SAVE, the share that must be repaid is weighted between 5 and 10 percent, according to the mix of undergraduate and graduate debt, and discretionary income is everything above 225 percent of the poverty line. Using our original $29,719 in undergraduate debt yields $61,741 in grad debt and a 32–68 undergrad‐​grad mix. That puts the share that must be repaid at 8.4 percent. The borrower consolidated undergrad and grad loans, which weights the interest rates for undergraduate (5.5 percent) and graduate (7.05 percent) loans at the same 32–68 mix, yielding an interest rate of 6.6 percent. Any interest left unpaid would be added to the loan under the current IDR, but not SAVE.

The first figure shows what happens under current IDR. The debt is repaid within 14 years, but unlike for undergraduate‐​only debt, taxpayers lose out in present‐​value terms. While in total the borrower will have repaid $99,676, that is only $81,246 in year one dollars—a $10,214 loss for taxpayers.

The second figure is the life of the loan under SAVE. Under this plan, the loan is paid off in under 18 years and the borrower will have repaid $98,346. In year one dollars, that is only $74,542, a $16,918 loss for taxpayers.

Income‐​driven repayment, even now, helps borrowers and is a burden on taxpayers when graduate debt gets factored in. Moving to SAVE will more than double that taxpayer burden.

Alex Nowrasteh

Two major public events made a lasting impression on me as a child. The first was the 1992 Los Angeles riots. We had moved out of Burbank 18 months before, but my mind was still on Burbank and LA generally. I remember watching the riots on TV and listening to adults talk about them, especially those who remembered the 1965 Watts riots and had their own stories of dealing with LAPD officers. The second major event was the 9/11 attacks, which occurred right before my 18th birthday during my senior year in high school. Nobody who watched the towers come down live on the news will forget it.

In the decades since, the country certainly hasn’t forgotten 9/11 – and for good reason. The 9/11 terrorist attacks were the deadliest in world history – by a factor of four or nine, depending on how expansive a definition of terrorism you use. The resulting domestic surveillance, overseas wars, and immigration restrictions have shaped much of politics to this day.

To understand how big a threat terrorism is and the potential hazard some immigrants and other foreign‐​born individuals pose to the United States, the Cato Institute released a new paper today, Terrorism and Immigration: A Risk Analysis, 1975–2022. The report analyzes the number of foreign‐​born terrorists, the murders they committed in their attacks, and other information about them for 1975–2022. This new Cato policy analysis is an update of earlier papers on the topic.

In sum, the report shows that the chance of being killed by a foreign‐​born terrorist in the U.S. is about 1 in 4.3 million per year, a very low‐​probability event. For comparison, the annual chance of being the victim of a regular criminal homicide in the U.S. is 1 in 20,134, a much higher probability.

Terrorism is the threatened or actual use of illegal force and violence by a non‐​state actor to attain a political, economic, religious, or social goal through coercion, fear, or intimidation. It is a specific form of crime that often garners more media and political attention than its impact would seem to deserve. That may be because many Americans vastly exaggerate the scale of terrorism, as some polls suggest. Or it may be due to the nature of the crime, where the unpredictability of terrorism and its motivations are scarier.

Yet another theory says Americans see the victims of terrorism as more worthy of protection than the victims of normal criminal homicide and other crimes, suggesting that the government should do more to prevent those victims from being harmed.

Our analysis shows that between 1975 and 2022 some 219 foreign‐​born terrorists planned, attempted, or carried out attacks that ultimately killed 3,046 people (Table 1). They also injured 17,077 people, with a chance of being injured of about 1 in 774,000 per year (Table 2). For murders committed during terrorist attacks, 98 percent occurred during 9/11. In terms of injuries, 87 percent occurred on 9/11.

Zero Americans were killed in domestic attacks committed by foreign‐​born terrorists in 30 of the 48 examined years. In 29 of the 48 years covered by the new Cato paper, zero Americans were injured in attacks committed by foreign‐​born terrorists. Islamists were responsible for 99.4 percent of the murders in foreign‐​born terrorist attacks and 95 percent of the injuries, followed by a small number of terrorists inspired by right‐​wing ideologies and foreign nationalist ideologies. Zero people were killed by terrorists who entered as illegal immigrants.

The federal government should continue to screen foreign‐​born terrorists from the flow of people seeking to enter the United States, as it should continue to filter out criminals, spies, and other security threats. However, the government should allocate resources to this endeavor using a cost‐​benefit test and not pass broad restrictions on immigrants to allegedly reduce the cost of terrorism. Foreign‐​born terrorism is a hazard to the lives and property of Americans. But it is a hazard that can be addressed by not expending further resources and by cutting some existing ones.

Marc Joffe

According to news reports, at least 111 people have died in the wildfires on Maui, an estimated 1,300 are unaccounted for, and authorities anticipate finding many victims who are children. It is a horrific tragedy and our hearts go out to those who are suffering.

Fortunately, many people are donating food, money, and other goods to the survivors, such as clothing, medicine, and shelter. It’s encouraging to see folks voluntarily, almost instinctively, rally to help their neighbors. While their efforts are to be applauded, actions by the state and county governments merit some scrutiny given news reports of what is happening on‐​scene.

Bear in mind that government action, whether in Maui or under other circumstances, is often justified by the idea of market failure, a condition in which resources are allocated inefficiently because “individual incentives for rational behavior do not lead to rational outcomes for the group.” One set of market failures is public goods (or services), which the market may under‐​produce because potential market actors cannot prevent free riders from benefiting.

An example of a public good is disaster‐​response, like in Maui. As Michel Jarraud, Secretary‐​General of the World Meteorological Organization, told a 2015 UN Conference on Disaster Risk Reduction, disaster early warning systems are “public goods in all countries, without exception, so they must be financed by public investment.”

But as we have seen in Maui, entrusting public goods to the government offers no assurance that they will be provided when needed. Hawaii, for instance, has a decades‐​old system of sirens, including 80 on the island of Maui that are tested monthly. But public safety employees reportedly failed to activate the sirens during the Lahaina wildfire.

Other aspects of the government’s response to the wildfire have come in for criticism. Firefighters initially controlled the blaze but reportedly left the scene before confirming it had been fully extinguished. The government apparently provided insufficient water to fight the fire as it expanded. After the fire, police reportedly prevented residents from returning to their homes to look for relatives, pets, and needed possessions.

Maui resident Allisen Medina told the Daily Mail on Aug. 18, “People have been doing their own recovery. One hundred percent not enough is being done so people are doing it themselves. The government relief organizations – they’re not doing anything.”

“We have the right to know what’s going on,” she added. “FEMA came here to help with the recovery [process] but we don’t see them.” https://​www​.dai​ly​mail​.co​.uk/​n​e​w​s​/​a​r​t​i​c​l​e​-​1​2​4​2​0​8​9​3​/​M​a​u​i​-​w​i​l​d​f​i​r​e​s​-​d​e​a​t​h​-​t​o​l​l​-​u​p​d​a​t​e​.html

Official distribution of relief supplies has been slow. Private groups have taken over much of the task from government agencies that appear to have been left flat‐​footed.

Poor government performance often is blamed on a lack of resources, but that would be a challenging argument to make in Maui’s case. Maui and a couple of adjacent islands are governed by a single county entity that has a 2024 budget of $1.07 billion. With a population of 164,351, Maui County spending this year amounts to over $6500 per resident. Notably, this total does not include public schools that Hawaii funds at the state level. The county mayor’s FY 2024 budget proposal included $60 million for Fire and Public Safety as well as an additional $1.2 million for Emergency Management.

We should be cautious about overgeneralizing from Maui’s case. Government performance varies and there are instances of dedicated public servants coming through for the public in emergencies. Those folks often are real heroes. But what Maui’s case shows is that government intervention does not guarantee the provision of public goods or, indeed, remediation of any form of market failure.

Because humans are imperfect, no institutional arrangement can guarantee a “socially efficient” allocation of resources, even if we could determine what such an outcome should be. Assuming a group of fallible individuals called “the government” will reliably provide public goods could even be counterproductive because it can lead to a sense of complacency.

As the Maui fires illustrate — not unlike Hurricane Katrina in New Orleans — it is wise to take personal precautions or volunteer for neighborhood groups. When disaster strikes, the government may not be there when needed.

Chris Edwards

With Congress scheduled to reauthorize farm subsidies this fall, lawmakers should consider reform lessons from New Zealand. Facing high budget deficits in the 1980s, New Zealand cut government spending, including eliminating nearly all farm subsidies. That was an impressive reform because the country is highly dependent on agriculture. Since then, New Zealand has remained a model of market‐​based farming.

The chart shows producer subsidy levels as a percent of farm receipts, as calculated by the Organisation for Economic Co‐​operation and Development (OECD). New Zealand hands out the least producer subsidies among OECD countries. The United States is below average, but there is room for improvement compared to New Zealand.

The chart is from a 2017 New Zealand government review of agriculture, as are the following quotes.

Prior to reforms in the 1980s, New Zealand provided an array of farm supports, including “minimum prices for agricultural goods, input subsidies, low‐​interest loans, tax incentives and debt write‐​offs.”

As a result, “farmers became less responsive to market signals … and resources were not used efficiently.” Farm productivity decreased “as the support payments provided a secure income without the need to innovate.” A further problem was that “as subsidies were capitalised into land prices, few young farmers could afford to buy land.”

It was clear by the mid‐​1980s that farm subsidies were causing damage. The New Zealand government changed course and ended nearly all subsidies. Its “objectives for reform were to create a level playing field, effectively treating farming like any other business.”

The reforms were successful. After some difficult adjustments during the 1980s, a more efficient agriculture industry emerged in the 1990s. “New Zealand has about the same number of people employed in agriculture today as it did in the pre‐​reform era. Agriculture productivity has quadrupled … There was also an indirect positive impact on the environment.”

Today, New Zealand “does not use export subsidies or trade distorting domestic support for any agricultural product.” Agriculture “is run as any other business; production decisions and market returns are dictated by the domestic and overseas markets. Sales depend on meeting customers’ expectations of price, quality, integrity of the supply chain and sustainability.”

New Zealand debunked the myth that farming cannot prosper without subsidies. The reforms led to the agriculture “industry being better placed to respond to market demand, in addition to being more competitive, more responsive, and significantly less burdensome on taxpayers.”

The upshot for U.S. policymakers is that rather than rushing through a giant farm subsidy bill this fall, they should explore lessons on free market farming from down under.

More on U.S. farm policy here and more on New Zealand farm reforms here, here, and here. The latest OECD farm subsidy data are here.

Travis Fisher

This is Part Two of a multiple‐​part response to the recent court order issued in the case Held v. Montana. Part One is available here.

As an energy economist, I think the most unfortunate part of the Order in Held v. Montana is that it repeats well‐​known errors in energy system modeling made popular by Stanford Professor Mark Jacobson, who provided testimony in the case. Professor Jacobson has been making bizarre claims for years, and his work has been rejected as unrealistic, even by academics who share his desire to reduce carbon dioxide (CO2) emissions.

For example, in the Proceedings of the National Academy of Sciences (PNAS), a group of 21 academics publicly criticized the methodology and assumptions in Professor Jacobson’s work on a hypothetical 100 percent “wind, water, and solar” energy system (WWS). The authors found that Jacobson’s work “used invalid modeling tools, contained modeling errors, and made implausible and inadequately supported assumptions.” Authors warned: “Policymakers should treat with caution any visions of a rapid, reliable, and low‐​cost transition to entire energy systems that relies almost exclusively on wind, solar, and hydroelectric power.” (Note: Professor Jacobson initially sued the academics for challenging his work, but later dropped the suit.)

The counterpoint to Jacobson’s work by the PNAS authors is interesting context but doesn’t address the specific claims in the Order. And although a full rebuttal of Jacobson’s work is beyond the scope of this piece, let’s spot‐​check a few of the Order’s assertions—based on Jacobson’s testimony—to see if they stand up to scrutiny. (I also encourage readers to jump to paragraph 269 in the Order and read for yourself Professor Jacobson’s contributions to the case, which the judge deemed “informative and credible.”)

Paragraph 271 reads: “Non‐​fossil fuel‐​based energy systems across all sectors, including electricity, transportation, heating/​cooling, and industry, are currently economically feasible and technically available to employ in Montana. Experts have already prepared a roadmap for the transition… to a 100% renewable portfolio by 2050, which, in addition to direct climate benefits, will create jobs, reduce air pollution, and save lives and costs associated with air pollution” (emphasis added).

Using the kinetic energy of the wind to generate electricity has been technically available in the U.S. since at least 1888 when Charles Brush powered his home near Cleveland using a dynamo connected to a windmill and backed up by batteries in his basement. So I take no issue with the assertion of technical availability, especially if we’re only discussing one state (although a national or global shift to WWS would raise important questions about the availability of critical minerals at sufficient quantities and reasonable prices). However, the concept of a 100 percent WWS system being economically feasible needs a closer look.

Paragraph 276 offers the patently false assertion that: “Wind, water, and solar are the cheapest and most efficient form of energy. Cost per unit of energy in a 100% WWS system in Montana would be about 15% lower than a business‐​as‐​usual case by 2050, even including increased costs for energy storage.”

Policymakers should not be tricked into thinking a WWS future would be inexpensive. We have real‐​world examples of states and nations that have tried to make the transition Professor Jacobson imagines—specifically California and Germany, who have both made an expensive mess of their attempts to decarbonize. For one thing, they have yet to fully decarbonize after many years of effort, as Professor Jacobson claims is feasible. For another, the accumulated costs are staggering: an estimated $580 billion in Germany by 2025. Regarding California’s transition, proponents say decarbonization would take “about $76 billion per year on average between 2021 – 2030.” Specifics aside, it is incorrect and irresponsible to claim a WWS future would be cheap. On a national level, estimates of green energy spending included in the Inflation Reduction Act reach as high as $2.7 trillion. This doesn’t mean that such a transition couldn’t conceivably pass a cost‐​benefit test, but the costs are much higher than Jacobson claims.

Paragraph 276 continues: “New wind and solar are the lowest cost forms of new electric power in the United States, on the order of about half the cost of natural gas and even cheaper compared to coal.”

This is a reference to the Levelized Cost of Energy (LCOE). The National Renewable Energy Laboratory explains that LCOE is “an economic assessment of the cost of the energy‐​generating system including all the costs over its lifetime: initial investment, operations and maintenance, cost of fuel, cost of capital.” LCOE should not be used to compare intermittent energy sources to on‐​demand sources. The U.S. Energy Information Administration states: “direct comparisons of cost between dispatchable and resource‐​constrained technologies may not be meaningful in most contexts.”

However, perhaps the most‐​cited LCOE research firm—Lazard—attempted to remedy the “dispatchable vs. non‐​dispatchable” problem in its 2023 assessment. Slide 8 in Lazard’s 2023 report illustrates the cost of “firming” intermittent sources of energy.[1] Notably, under the Lazard methodology, the cost of firming increases as the share of intermittent energy goes up. For example, in California (which already has a high penetration of solar energy), the LCOE of firmed solar is $141 per megawatt-hour—compare that to the cost of running existing power plants like nuclear ($31), coal ($52), and combined cycle natural gas ($62). Even for new power plants, the LCOE for combined cycle natural gas ($39-$101) is competitive with the intermittent output of wind ($24-$75) and solar ($24-$96).

Paragraph 281 states: “Transitioning to WWS will keep Montana’s lights on while saving money, lives, and cleaning up the air and environment…” (emphasis added).

Regarding the power grid reliability impacts of a forced transition to intermittent resources, see pages 22–25 of my recent comments on the power plant regulations proposed this year by the Environmental Protection Agency. The short version is this: the reliability of the electric grid is a matter of public health and safety (over 200 people died during extended power outages in Texas during Winter Storm Uri), and efforts to protect people from the risks of climate change have so far ignored the health risks of an unreliable electricity supply.

Conclusion

Energy and environmental policy is too important to allow serious errors to go unchallenged. Policymakers and judges should carefully parse the facts to guarantee that energy and environmental policy is grounded in reality. Unfortunately, the court Order makes several errors on its way to concluding that Montana should turn away from fossil fuels and embrace a WWS energy system. I certainly want a “clean and healthful environment” for my own children. Where advocates and policymakers (and judges) may differ is on which facts are relevant to policymaking and the right policies to promote a clean and healthful future.

Chris Edwards

I join Roger Pilon in expressing sadness at the passing of federal judge and U.S. senator James Buckley. I became acquainted with Jim when he was in his 90s, and I was so impressed that he was still actively considering policy issues and influencing public debate. James Buckley reached the century mark, and his mind was sharp until the end.

Jim emailed me out of the blue around 2013 asking whether he could come over and chat about my writings on federal aid to the states. Soon after, he pulled up his car to Cato having driven down from Connecticut, and we chatted for an hour or two. He had read my 2007 study on aid to the states and had been inspired to write a book on the topic.

Jim agreed with me that the massive system of more than 1,100 aid‐​to‐​state programs was awful and ought to be entirely repealed. In subsequent months, we emailed occasionally about points to include in his book, which was published in 2014. Saving Congress from Itself is quick read at 95 pages, and a great introduction to the reasons why reviving federalism would improve American governance.

“The United States faces two major problems today,” Jim began his book, “runaway spending that threatens to bankrupt us and a Congress that appears unable to deal with long‐​term problems of any consequence.” A key source of both problems, he said, is the centralization of spending and regulatory power in Washington stemming from the massive aid‐​to‐​state system.

Aid‐​to‐​state programs are bureaucratic, wasteful, and undermine democratic responsibility. They also overwhelm federal lawmakers with a vast range of policy topics they know little about. Jim noted, “Congress’s current dysfunction is rooted in its assumption, over the years, of more responsibilities than it can handle. As a result, its members now live a treadmill existence that no longer allows them time to study, learn, and think things through. Instead, they substitute political reflex for thought.”

Jim argued that repealing aid‐​to‐​state programs would allow the federal government to focus on truly national matters, put the government on sounder financial footing, and free the states to increase the quality of domestic programs.

I put Jim on my email list for my studies and opeds, and up to age 98 he was regularly responding with follow up questions and observations. So inspiring. Jim cared deeply about American freedom, and his book described one crucial way we can work to revive it.

Jim discusses his book here and you can find it on Amazon here. My main studies on federal aid are here and here.

Travis Fisher

This is Part One of a multiple‐​part response to the recent court order issued in the case Held v. Montana.

On August 14, Montana District Court Judge Kathy Seeley sided with climate activists (“youth plaintiffs”) in Held v. Montana, a first‐​of‐​its‐​kind victory in a climate lawsuit. This is a big deal. Media coverage has referred to it as a “landmark climate case,” a “significant victory,” and a “gamechanger.” Beyond finding that a recent statute was unlawful under the Montana state constitution, the judge found that the defendants—16 youth plaintiffs in Montana represented by a climate group called Our Children’s Trust—had legal standing to sue on the grounds that they were, in fact, injured by climate change.

Observers of climate lawsuits like this one have said for years that legal standing was impossible to establish for climate damages. Under state suits, the criteria for legal standing can vary but tends to require actual or imminent injuries caused by climate change that are “remediable,” i.e., curable by a court victory. Held v. Montana sets a worrying precedent that could, at least according to local attorneys, “likely provide a blueprint for climate change litigation throughout the nation.” It is troubling not just because it violates longstanding rules of legal standing, but because it gives legal imprimatur to the flawed arguments made in support of radical government actions to address climate change during the trial.

It is not sufficient that the defendants might win on appeal and overturn the order. Some of the arguments put forward in Judge Seeley’s Findings of Fact, Conclusions of Law, and Order (the “Order”) are simply inaccurate and warrant swift refutation before the next round of legal review takes place. Other arguments carry grains of truth that deserve the fuller context one might expect from a comprehensive trial. This piece offers the beginning of a rebuttal to the Order, which calls for an end to the consumption of hydrocarbon energy (“fossil fuels”). For judges or policymakers who would ban fossil fuels—which provide 80 percent of our primary energy sources (domestically and globally)—please consider the costs.

Snapshot of the Case

Plaintiffs challenged the constitutionality of a 2023 change to Montana’s statute dealing with the Montana Environmental Policy Act. That change stated that environmental reviews “may not include an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.” Judge Seeley found that provision inconsistent with the article of the Montana state constitution, added in the early 1970s, that reads, in relevant part: “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations” (emphasis added).

In addition to finding the 2023 statute unconstitutional, Judge Seeley granted standing to the plaintiffs, affirmed their harm and injury, and found that: “This judgment will influence the State’s conduct by invalidating statutes prohibiting analysis and remedies based on GHG (greenhouse gas) emissions and climate impacts, alleviating Youth Plaintiffs’ injuries and preventing further injury” (emphasis added).

Before we explore whether any single state’s climate policy—or any single nation’s—could conceivably alleviate or prevent injuries from climate change, which is a global phenomenon, let’s take a step back and talk about the uncontroversial parts of the Order.

Yes, Montana, There Is Climate Change

There are some facts about climate change that most of us can agree on, no matter where we land on the political spectrum. Here are a few: 1) The climate is changing; 2) Human activity has an impact; 3) Carbon dioxide (CO2) is a GHG; 4) Globally, GHG emissions are on an upward trend (although global economic slowdowns create temporary downticks); and 5) The concentration of CO2 in the atmosphere is increasing and appears to be accelerating slightly in recent years. So, before anyone feels compelled to ask “Do you believe in climate change?,” my unambiguous answer is “Yes.”

The five things listed above are near‐​universally accepted facts, in part because we have sophisticated ways to measure temperature and CO2—a great example is the atmospheric CO2 record from the Mauna Loa Observatory in Hawaii (see below).

Temperature records are less straightforward, but we do have direct readings from thermometers for over 100 years, and global average surface temperatures are on an upward trend in that data set as well. The Global Surface Temperature records reported by the National Oceanic and Atmospheric Administration, for example, show that the 2022 average surface temperature was a bit more than one degree Celsius warmer than some of the earliest direct measurements, and bit less than one degree Celsius warmer than the 1901–2000 average (see below).[1] We also have interesting (if perhaps slightly less reliable) proxy temperature records established by paleoclimatologists using tools like ice core samples and tree rings that go back thousands of years.

Clarifying the Impact of CO2 on Human Health

Although it’s true that ambient CO2 concentrations are going up, we must understand that CO2 is not a traditional pollutant and causes no direct adverse biological impact in humans at ambient concentrations. In percentage terms, a concentration of 420 parts per million (ppm) equates to 0.042 percent of the atmosphere (nitrogen makes up roughly 78 percent, oxygen 21, and other trace gases like Argon and CO2 make up the rest). In fact, the Occupational Safety and Health Administration established safe levels of CO2 in the workplace in the range of 5,000 to 10,000 parts per million (ppm), so breathing in the levels of CO2 in the ambient atmosphere—less than one‐​tenth the level of the safe threshold—is simply not directly harmful to human health.

We should be clear about terms like “carbon pollution”—CO2 should not be confused with traditional pollution like toxic levels of heavy metals or dangerous smoke. But the Order blurs the line between CO2 as a GHG and CO2 as a harmful pollutant by interchangeably referring to CO2 as a GHG (throughout), as “fossil fuel pollution” (p. 86) and as “fossil fuel emissions” (pp. 90, 92). In paragraph 124, the Order states “Childhood exposure to climate disruptions and air pollution can result in impaired physical and cognitive development with lifelong consequences. Air pollution can trigger or worsen juvenile idiopathic arthritis, leukemia, and asthma in children” (emphases added). It is unclear whether the judge was referring to CO2 as the “air pollution” in question. (Historical note: traditional pollutants are all on a downward trend in the United States)

The below image (accompanying an article about CO2 emissions) illustrates the rhetorical device used by some climate activists in framing CO2 as a pollutant that is harmful to breathe and a trigger for illnesses like asthma. One harmful consequence of the Order could be that the rebranding of CO2 as “fossil fuel pollution” now has a patina of legal seriousness.

Okay, but what about indirect impacts? The obvious risk of increased CO2 emissions is global warming and the indirect health impacts that accompany it (there are other costs occurring elsewhere, such as those stemming from sea level rise, but I’ll focus on the Montana‐​specific costs identified in the Order). The Order discusses at length the impacts of two of these changes: temperature increases and air pollution from wildfires. Both issues are important but received a very one‐​sided discussion in the Order.

Temperature: Studies suggest extreme cold weather may be more fatal than extreme hot weather, and it stands to reason that the impacts of cold weather would be more acute in a high‐​latitude state like Montana. Government data also suggest people living in rural areas are at higher risk of cold‐​weather fatalities, and Montana’s population density ranks the third lowest in the nation (only Alaska and Wyoming have lower population density) according to 2020 Census Bureau data. The judge’s focus on the physiological impacts of heat (and lack of focus on the impacts of cold) is an unbalanced discussion of the temperature impacts. For example, p. 118 states: “Exposure to extreme heat can cause heat rash, muscle cramps, heatstroke, damage to liver and kidney, worsening allergies, worsening asthma, and neurodevelopmental effects.” The Order ignores the health impacts of extreme cold, which is not appropriate given Montana’s latitude.

Wildfires: The connection between CO2 emissions and wildfires is tenuous at best. Bjorn Lomborg used data from the National Aeronautics and Space Administration to show that the total land area of the world burned by wildfires has trended downward in recent years. Roger Pielke, Jr. examined the treatment of wildfires in reports by the Intergovernmental Panel on Climate Change (IPCC)—he concluded that the IPCC “has not detected or attributed fire occurrence or area burned to human‐​caused climate change.” Personally, I suffered acute illness from the wildfire smoke that covered the Washington, DC area for several days this summer. I can vouch for the unpleasantness of inhaling wildfire smoke and the health impacts. However, an objective look at the data does not reveal a link between CO2 emissions and wildfires, certainly not the causal link needed in a court setting. That causal link may be shown eventually, but the IPCC reports do not provide the degree of attribution certainty required in a lawsuit.

Conclusion

We should be clear about what CO2 is and is not. It is a GHG that is increasing in concentration and contributing to climate change, but it is not harmful to breathe in concentrations 10 times higher than exist in the atmosphere. Calling it “fossil fuel pollution” is a rhetorical device that obscures and confuses the debate over climate policy. Sadly, the court Order gives an undue legal endorsement to such one‐​sided rhetoric. It also doubles down on the flawed arguments that 1) heat represents a greater health risk than cold, especially in high latitudes, and 2) increased CO2 concentrations are associated with (or even cause) more wildfires.

[1] There are disagreements about how surface temperature should be averaged (and to what extent the average is biased upward by the urban heat island effect); however, it is important to acknowledge the warming trend.

Roger Pilon

I’m saddened to report that Jim Buckley has died at the age of 100. Juliana and I have enjoyed his friendship for many years, especially after he moved just down the road from us a few years ago. Jim was also long a friend of the Cato Institute. He was the lead plaintiff, for example, in the 1976 case of Buckley v. Valeo, in which Ed Crane was also a plaintiff, pressing the Supreme Court successfully, as it turned out, for more campaign finance freedom. He also came to the Cato Institute to swear Bradley A. Smith as a member of the Federal Election Commission. More recently, Jim spoke at a Cato Hill forum on Reviving Federalism, where we featured his latest book, Saving Congress from Itself: Emancipating the States & Empowering Their People. I then reviewed the book for the Cato Journal.

Jim was that rare person who served in all three branches of the federal government. A lawyer by profession, he was storied originally for having been elected to the U.S. Senate from New York in 1970, running as a third‐​party candidate on the Conservative Party line. I’m proud to say that as a student at Columbia University at the time, I was a volunteer in that campaign. He was the most recent person to be elected to the Senate as the nominee of a party other than Democrat or Republican. Jim went on from there to be Under Secretary of State for International Security Affairs in the Reagan administration, Director of Radio Free Europe, and finally as a judge on the United States Court of Appeals for the District of Columbia Circuit, where he served from 1985 until he took senior status in 1996.

Jim was the last surviving member of the famous Buckley clan that included younger brother Bill, founder of National Review and credited often as the founder of the modern conservative intellectual movement. He was the warmest of men, an environmentalist in the best sense, and a friend to many. May he rest in peace.

Jennifer Huddleston and Gent Salihu

As discussed in prior posts, the 2022–2023 legislative session saw a surge in state legislation to protect kids’ online safety and state data privacy laws. But what else have states been working on during this recent legislative session?

An overwhelming majority of states have considered actions related to TikTok particularly on government devices and networks. With the rise in popularity of generative artificial intelligence (AI) applications, states have also rushed to sponsor laws to regulate technology for problems that yet remain to be defined. It is likely that these topics will continue to be part of state debates in upcoming legislative sessions, as well as the subject of continued debate at the federal level.

State‐​Level TikTok Bans

As of August, a total of 34 states have passed legislation that bans TikTok on government devices or networks. These restrictions are largely based on concerns about the national security risks posed from TikTok’s parent company ByteDance’s position in China and the Chinese National Intelligence Law. Under that law, China can require its corporations to provide data.

In some instances, however, states have enacted bans that extend beyond government devices. Oklahoma, for example, has extended the TikTok prohibition to not only government devices, but to any contractor transacting with the state. Some extensions seem to push the boundaries of justification under the umbrella of national security concerns. In Texas, TikTok restrictions were also applied to public universities and their networks. This is now being challenged on the grounds of academic freedom. In a similar vein, Florida outlawed TikTok in both public‐​school devices and networks.

Perhaps most concerning from a free speech perspective, Montana enacted a TikTok ban for all citizens. Departing from the national security rationale, Montana expanded the reasoning for banning TikTok: the conduct and mental well‐​being of children. A concern reflected in the Montana law’s preamble is that TikTok “directs minors to engage in dangerous activities.”

Such a proposal raises significant concerns about its impact on the First Amendment rights of TikTok’s American users and, unsurprisingly, the law was almost immediately challenged in court. TikTok bans like the Montana law deprive Americans of a unique forum of speech that they have chosen to use for expression. TikTok fosters a unique community of creators and followers, often sparking trends and challenges, and provides specialized features for content creation that its creators prefer to those available on other platforms like Instagram Reels or YouTube Shorts.

TikTok is a forum of speech that stands apart in its function and impact. A TikTok ban at any level faces a significant hurdle in proving it meets a compelling government interest and is being implemented using the least restrictive means to achieve that interest. There are ongoing processes that may lead to a better understanding of whether there are any concerns regarding TikTok that require government policy action, but even if so, there are many options short of a full ban to achieve such an interest.

State‐​level bans raise even more concerns regarding the realistic enforcement of such laws even if they do pass such a test. Many proposals would require the government to take more concerning steps for enforcement or are nearly impossible at a practical level. Americans in states that adopt measures to ban certain apps or websites may turn to Virtual Private Networks (VPNs) to circumvent these restrictions. This was demonstrated by the increased popularity in searches and downloads of VPNs following PornHub’s exiting Utah due to government ID requirements. These bans would also extend to control over app stores, dictating what apps they could carry within a specific state—a decision that is typically made only at the federal level. But the popularity of certain apps means that many Montanans may already have access to them, so it would only prevent those users who do not currently have the app and could even create more risks by preventing security updates to the existing app.

TikTok has been policymaker’s focus due to the unique intersection of concerns about China’s technological progress and youth social media use. But many legislative proposals at both a state and federal level would impact much more than just the app. Policymakers should tread carefully when considering the precedent such actions could set and ensure that any concerns are based on sound evidence and not just the targeting of a specific company.

AI Regulation Attempts by States

As the federal government grapples with what—if anything—should be done to regulate AI and Large Language Models (LLMs), a small set of states have already taken charge and pushed forward their own bills with the rationale of protecting their citizens. New York and California have proposed centralized frameworks, echoing the EU AI Act, while others like Louisiana, Montana, and Texas have targeted more specific concerns. A confusing patchwork of rules for developers, deployers, and end users of AI could be on the horizon if states take the lead.

New York, through A7501, seeks to follow a centralized approach to regulating AI usage, with plans to establish an Office of Algorithmic Innovation which would have the power to set standards for the usage and auditing of algorithms. The New York bill resembles the centralized structure laid down by the EU AI Act and departs from the sectoral‐​based solutions that dominate the debates at the federal level. With the New York approach, creating new institutions might only lead to red tape and confusion, instead of building on existing institutions with a sectoral approach.

While New York’s legislative proposal is still under consideration, California’s AB 331 has been recently suspended. Still, its features deserve close attention, as similar bills are likely to be sponsored in upcoming legislative sessions. California’s bill sought to expand the existing responsibilities of the Civil Rights Department to regulate automated decision tools. Utilizing an existing body is a departure from New York’s goal of creating a new agency. However, both California and New York aimed at entrusting a single agency to oversee all deployers and users of AI.

Even with the suspension of AB 331, California may consider AI regulatory action through its existing California Privacy Protection Agency (CPPA). The CPPA has the power to draft regulations on automated tools and has become a de facto AI regulator in California.

Unlike New York and California, which have taken a broad and centralized regulatory approach to AI, Louisiana has focused on more specific and tangible use cases. Louisiana’s SB 1775, which has already been signed into law, criminalizes deepfakes involving minors and defines rights to digital image and likeness. This represents a tailored response to a particular concern on AI usage for which there is solid evidence and insight.

Montana and Texas have also adopted similar targeted approaches. Montana’s SB 397, also signed into law, prohibits law enforcement from use of existing facial recognition technology, aiming to safeguard individual liberty and prevent the perpetuation of racial bias by state authorities.

Rather than rushing to enact broad regulations for technology that keeps transforming every day, Texas established an AI Advisory Council to study and monitor AI systems developed or used by state agencies. This approach could provide opportunities for deregulation as well as regulation by identifying current barriers to deployment or development. It also focuses on the state’s own use of the technology rather than on private sector applications.

As with data privacy or youth online safety, many state legislatures may be asking what they can or should do about their constituents’ concerns about AI. It is important to remember that AI is a general use and data‐​intensive product and typically concerns relate to a specific application, not the technology more generally. Over‐​regulation could limit many existing and beneficial applications. Like the internet, AI crosses borders in ways that makes a federal framework preferable for any potentially necessary regulations.

Conclusion

A wide range of tech policy issues have seen activity at the state level during the latest legislative session. In some cases, this activity may be a reaction to the perceived ability to “do something” in the absence of federal action, as evidenced by recent measures surrounding a broad array of tech debates, including new topics like AI and TikTok. Many state technology proposals are an attempt to respond quickly to perceived concerns without strong evidence of the alleged harm or thorough consideration of the consequences of government action on key values like speech. While state governments are often seen as the laboratories of democracy or more closely tied to the population they represent, the situation becomes more complex with tech policy when many proposals can have an impact beyond state borders or could create a disruptive patchwork.