As California’s smog-fighting Air Resources Board (ARB) gets set to impose America’s first cap-and-trade rules for fighting the greenhouse gases most scientists believe are helping cause global warming and climate change, it is also considering imposing a “truth” rule on everyone who testifies in its hearings or submits reports to it.
For some, that appears a bit ironic right now, as the board has just scaled back diesel particulate pollution regulations based on a report whose lead author turned out to have falsified his academic credentials. Before the changes, those regulations had already cost truckers and operators of industrial machinery big money as they struggled to clean up their engines.
Did the ARB fire the resume-inflating scientist, Hien T. Tran, whose “doctorate” turned out to come from an outfit based in a New York City post office box? Nope, he was merely demoted, and still works on matters that can lead to new emissions restrictions. So the smog board opted to keep a documented liar on its staff and now it’s concerned with getting the truth from others.
In fact, the “truth” rule is only in its workshop phase, meaning it will be some time before the ARB could possibly impose it. But as proposed, it would forbid dishonest statements to the board or its staff. This would also apply to the reports many companies – including car makers and electric utilities – routinely make to the agency. No one has yet spelled out the penalties for lying.
Several federal boards and the state Public Utilities Commission already have “truth” rules with varying penalties for violators.
For sure, lying has long been commonplace in testimony before the ARB, from carmakers that denied they were developing electric or plug-in hybrid cars but rolled out prototypes two months later to gasoline refiners that encouraged the smog board to adopt rules without disclosing they held the patents that anyone complying with the rule would need to infringe or license in order to comply.
The case cited most often by ARB officials involved Unocal, the oil company since subsumed by Conoco Phillips, and a rule it proposed for making reformulated gasoline.
“When the ARB adopted the recommended path and other oil companies started dispensing the reformulated gas, Unocal then sued the other oil companies for patent infringement,” said an ARB background statement. “This sparked lots of litigation, including a Federal Trade Commission proceeding against Unocal.” For sure, Unocal deliberately set up a situation where it planned to profit from suing other oil companies, but was eventually stymied. The ARB says it was fooled because it doesn’t have sufficient staff to track every patent held by every company it regulates.
“People take advantage of the openings they get,” said Ellen Peter, the board’s chief counsel. “If they didn’t, we wouldn’t need a Securities and Exchange Commission or laws against perjury.”
She says carmakers and others “often omit key facts. They’ll tell us, ‘This car gets a certain gas mileage,’ but they won’t mention its other flaws.”
But others say the proposed rule represents a double standard for an agency that essentially tolerated deception by one of its own officials when it declined to fire Tran, but only demoted him.
Then there are problems with the age-old question of what is truth? Some of these were outlined in a letter to the ARB from Michael Lewis, senior vice president of the statewide Construction Industry Air Quality Coalition, which includes builders, truckers, and a variety of contractors.
“If a person makes a statement to the agency that they believe to be true, based on their experience, and that information cannot be proven to be true or it only becomes obviously true at a later date, are they subject to enforcement under this rule?” he asked. “Who determines the accuracy of a statement?”
All that is unclear, the ARB insists, saying the proposed rule is being floated merely because the board is taking on new responsibilities but not getting more staff, and thus will depend even more on the accuracy of the testimony and reports it gets.
“The real question is whether we should get a rule now that protects consumers and businesses,” said Peter. “We’ve gotten so many misstatements of fact that we felt we ought to explore this.”
The bottom line: The ARB can avoid the “double standard” accusations it is now hearing if it waits to adopt this rule until it has reestablished the reputation for complete veracity and integrity it enjoyed before the Tran affair and the flawed diesel rule linked to it. How long that might take is anyone’s guess.