CARB acted like 'mob enforcer'

APRIL 14, 2010

By ANTHONY PIGNATARO

The metaphor Kit Enger uses most often when talking about the California Air Resources Board (CARB) is that of the mob enforcer. As in, “It was like I was forced to buy protection from a mob leader.” That was just in his discussion with me; when he testified before CARB itself, back On Nov. 19, 2009, he was even more graphic, telling the board that a CARB enforcement officer told him on two occasions, “If you guys don’t get on with this settlement, it doesn’t matter to us if you go out of business, change your name, move to another state, or die, we will find you and attach your assets.”

Enger is president of the Compliant Car Builders Association in Oceanside. They’re a coalition of 37 dune buggy and off-road vehicle manufacturers who ran afoul of CARB last year to the tune of $3.6 million, which they eventually whittled down to a settlement of $600,000 in April 2009. Their crime? Selling “illegal engines” – the phrase comes straight from an April 2, 2009 CARB press release – from 2006 to 2008.

Enger and the Association – which is currently pushing for a new law to change the way CARB enforces its regulations – agreed to pay their fines. But then they realized that CARB was apparently trying to enforce a law – which dated to Aug. 15, 2007 – that hadn’t even been on the books when the companies in the Association built many of the alleged “illegal engines.” That led to Enger and the Association filing a petition last October with the California Office of Administrative Law.

The Administrative Law Office declined to accept Enger’s petition, said Director Susan Lapsley. She declined to say why – the office’s governing statute says her office can keep its reasoning private – but her Jan. 7, 2010 letter to Enger said the rejection “in no way reflects on the merits of the underlying issue” or constitutes “a judgment or opinion on any issue raised” by the petition. Regardless, Enger’s petition is worth exploring in some detail, if only because it illustrates the actions of CARB, a growing force in state environmental regulation that generally operates without much scrutiny.

“CARB unlawfully used an underground regulation against the sand car industry,” the petition states. “Approximately two-thirds (or more) of the vehicles and engines subject to the April 2009 settlement were manufactured, distributed, or sold prior to August 15, 2007. For these vehicles and engines, this constitutes the unlawful enforcement using an underground regulation.”

CARB spokesperson Karen Caesar had no comment on the Sand Car Association petition beyond the press releases they’ve already published, though another member of the CARB media relations office said the Administrative Law Office petition didn’t surprise him because Enger had been so “acrimonious” about the whole affair. At the time of the $600,000 settlement, CARB released a press release that basically wagged a finger at the Sand Car Association. “Uncontrolled emissions from these vehicles add to California’s already serious smog problems,” CARB Chairman Mary D. Nichols said ominously in the above press release (the “chairman” title appears in the original).

But on April 20, 2009, CARB released another statement saying the whole matter made for a better, stronger industry: “This is a win-win for air quality and the sandcar [sic] industry, because the industry is now using ARB certified engines and self enforcing its members to comply.”

The whole issue of how the Sand Car Association’s “illegal” engines were allegedly harming the environment is ambiguous. Enger says no one from CARB ever provided him with an analysis of how much additional pollution his engines were putting out because they never tested them. “I never received anything in writing showing an increase in pollution from our modified engines,” Enger said. “I also never received a written notice of violation. And I never got any justification as to how CARB first arrived at the $3.6 million fine.”

Enger said this whole thing first came up back in September 2006, when CARB officials told him they were proposing new air pollution regulations for sand car engines. The next month, Enger said, CARB held an “implementation outreach workshop” with association members, where they explained how the companies could comply with the new regs. “Between September 2006, and January 2007, the sand car industry worked cooperatively and diligently with CARB certification staff to devise a program whereby all industry members could efficiently and effectively certify their vehicles and engines,” Enger wrote in a declaration filed with his October 2009 petition.

Things seemed to be going well. Enger says the sand car industry worked all through 2007 to get their vehicles into compliance. “By December 2007,” Enger wrote in his petition, “most engine providers of the Sand Car Association had successfully and timely certified the engines used by the industry to CARB under the OHRV [off-highway recreational vehicle] regulations, which had only become effective on August 15, 2007.”

Then the wheels came off. Enger said that in January 2008. CARB suddenly turned around and told him that “all of the MY [Model Year] 2007 sand cars and engines were in violation of CARB’s OHRV certification requirements,” Enger wrote in his petition. Soon after, CARB officials told Enger’s association that they owed $3.6 million in penalties – a number that Enger said CARB never explained.

Though his group had already signed onto the $600,000 settlement, when he found out CARB was, in effect, carrying out an ex post facto prosecution by fining him for engines that were modified before the new regulations went into effect, Enger appeared before the Air Resources Board on Nov. 19, 2009 and asked them to reopen the whole matter. “We respectfully request for CARB to rescind our settlement as it was fraudulently obtained and return to our members the ill-gotten $600,000 penalty,” he asked.

They said no.

“CARB is unaccountable,” was how one legislative aide familiar the Air Resources Board put it. “They’re a sacred cow.”

Since his petition with the Administrative Law Office went nowhere, Enger is helping promote SB1402. Introduced Feb. 19 by Senator Bob Dutton and cosponsored by a bipartisan coalition of eight other senators, the bill calls for multiple reforms of CARB, including an annual report to the Legislature and governor from the board on all administrative penalties they impose and the right of those accused of violations to an administrative hearing “in lieu of a civil action.” The Senate Environmental Quality Committee will take up the bill on April 19.

“This whole thing has been a frickin’ disaster,” Enger said. “My lawyers said it would cost more than $600,000 to fight it, so we might as well pay it. It’s like a protection racket – government out of control.”

6 comments

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  1. EastBayLarry
    EastBayLarry 14 April, 2010, 15:13

    I always thought as citizens of the United States we were immune from ex post facto prosecution.

    And how can it be said of any state agency, “They’re a sacred cow.”?

    America, where are you now?

    Reply this comment
  2. PRI
    PRI Author 15 April, 2010, 20:44

    CARB makes “The Sopranos” look like Quakers.

    — John Seiler

    Reply this comment
  3. Elliot
    Elliot 17 April, 2010, 15:53

    Just curious as to why you didn’t post my comment? Here’s another comment you may want to screen.

    “If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.”
    –Joseph Goebbels

    What’s disconcerting is there are only 2 comments.

    Most people have no idea what they have done to themselves in electing government officials that gave C.A.R.B. onerous regulatory power. As they continue to drive business away from this now Bankrupt State, they will not only have succeeded destroying it’s tax base, but will have successfully annihilated themselves, which will be a day that we should celebrate. Read “Atlas Shrugged”, because this is the eventual outcome of those that are drunk with the “idea” of Power, whom have never produced anything, and that are full of ideas that are mindless, and images that are not based in reality. We are already familiar with the “In Tran We Trust Fraud”. It’s mind blowing that the C.A.R.B. Board members have not been fired over this swindle.

    I believe when a committee such as the C.A.R.B. board interferes with the capacity of a man to make a living over fraudulent ideologies, and deceptive compilations of data, and then forces innocent business owners to comply, they should be tried in a court of law, and hopefully they eventually will.
    Because “fascism” has always ended up with those, that are most responsible for it’s inception, convicted of crimes against humanity, and in this case their own citizenry.

    Many do not have the courage to speak up against such horrifying C.A.R.B regulatory enforcement. My hat goes off to Kit Enger.

    -Elliot

    http://en.wiktionary.org/wiki/fascism

    -Elliot

    Reply this comment
  4. Starbuck
    Starbuck 24 April, 2010, 10:33

    Elliot, as part of the team that caught fake PhD Hien T. Tran, we believe the reason he is still there is obvious. If he is fired, we will seek him out and have him answer questions, questions that he more than likely will want to answer. In other words, CARB knows if Tran is fired, he will squeal like a pig and point fingers at the true culprits in CARB.

    Obviously Tran was hired to do one thing and that was to make up the issue of diesel rules no matter if it was false. I backfired on CARB and here we are, looking at a corrupt liberal state agency in California filled to the brim with environmental whackos who have no clue on what they are doing.

    As long as California continues to vote these liberals into office, there will be corruption and criminal activity there and this state will continue to be broke.

    Reply this comment
  5. Elliot
    Elliot 28 April, 2010, 21:02

    @Starbuck

    Excellent point. Thank you.

    Hm…What would it take for Tran to sing like a bird?

    Reply this comment
  6. Rusty
    Rusty 15 January, 2012, 04:10

    CARB has NO Constitutional authority. No “Board” ever does. CARB does NOT own the air we breathe. Every single human and air breathing animal is an illegal ‘polluter’ according to CARB’s definition of carbon dioxide (CO2) as a ‘pollutant, yet treea and plants including algae REQUIRE and PROCESS carbon dioxide. Without it, they would die. Yet CARB conveniently ignores the laws of physics and Nature, again and again and again. The agency is not held accountable to anyone, including the California state government. Why is this so?
    Why doesn’t anyone CHALLENGE and PUNISH this rogue agency, and FORCE it to be held fully accountable to the People for its actions and onerous regulations? There is an explicit prohibition in the US Constitution that clearly covers and includes ‘undue hardship’ imposed by excessive, illegal, unjust, burdensome laws and/or government actions. CARB and its actions fall under the purpose, intent and definition of ‘overreaching, excessive, intrusive regulations’ referred to in the US Constitution. ‘Legalized’ theft is still THEFT, no matter how it is supposedly condoned or justified.

    Reply this comment

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