legislative
We used to build things.
I see a malaise, a loss of faith in the future and a loss of expertise in institution building, a sense of general fragmentation and isolation.
We Used to Build Things
David Brooks
David Brooks OCT. 13, 2017
Continue reading the main storyShare This Page
Share
Tweet
More
Save
700
Photo
Wallace, Idaho, destroyed by fire. Credit Library of Congress
They say that fighting a wildfire is the closest thing to being in combat. The trees explode, the wind whips down while the oxygen disappears and the fire “sheets” along the ground, streaking sideways like rushing waters.
Today’s California fires remind me of the largest fire in U.S. history, the Big Burn of 1910, which destroyed three million acres in Idaho, Montana and Washington. One of the towns the fire destroyed was Wallace, Idaho. A lone train arrived to take people away, and panic ensued. As my colleague Timothy Egan describes in “The Big Burn,” his history of the fire, men yanked women out of their seats, taking their place.
The U.S. Forest Service had been created five years before by Theodore Roosevelt and Gifford Pinchot. The 10,000 men who were rounded up to fight the fire were led by a small group of young foresters, many of them from the Yale School of Forestry, which graduated its first class in 1904.
One of the foresters, though decidedly no Yalie, was Ed Pulaski. By the time the fire hit Wallace, Pulaski had been up in the mountains fighting fires for a month. He came down to get food for his men. “Wallace will surely burn,” he told his wife and 10-year-old daughter, before returning up the mountain to care for his fighters. “I may never see you again.”
Pulaski and his men were soon surrounded by flame. Hand on his gun, he forced them to lie face down in the mud of an abandoned mine tunnel. He covered the small entrance with a wet cloth to try to prevent the air from being sucked out by the inferno.
Continue reading the main story
David Brooks
Politics, culture and the social sciences.
The Art of Thinking Well
OCT 10
Guns and the Soul of America
OCT 6
The Philosophical Assault on Trumpism
OCT 3
What Sincerity Looks Like
SEP 29
The Abbie Hoffman of the Right: Donald Trump
SEP 26
See More »
RECENT COMMENTS
David 22 hours ago
David, look in the mirror and see your party (the Republican Party) reflected and ask 'Why did we do this?'. Remember 'we want to drown the...
John Woods. 22 hours ago
Is this what you're saying, David? The opening scene from Newsroom: https://www.youtube.com/watch?v=1zqOYBabXmA
Candace Carlson 1 day ago
In 1890 they didn't have a nuclear bomb.
SEE ALL COMMENTS
Advertisement
Continue reading the main story
Soon, his face caught fire and he collapsed. After five hours in what they assumed would be their coffin, the men stirred. Forty-one were still alive, with only five dead.
Pulaski never received a cent from the government for his heroism. But Pinchot used the fire to tell the story of the Forest Service, the small band of underfunded heroes who risked their lives to save others. The fire turned out to be the making of that new and embattled agency.
When you look back at that era, you are struck by how many civic institutions were founded to address the nation’s problems. Not only the Forest Service, but also the Food and Drug Administration, the municipal reform movement, the suffrage movement, the Federal Reserve System, the Boy Scouts, the 4-H clubs, the settlement house movement, the compulsory schooling movement, and on and on. Four amendments to the Constitution were passed in those years.
Newsletter Sign UpContinue reading the main story
Sign Up for the Opinion Today Newsletter
Every weekday, get thought-provoking commentary from Op-Ed columnists, the Times editorial board and contributing writers from around the world.
Enter your email address
Sign Up
You agree to receive occasional updates and special offers for The New York Times's products and services.
SEE SAMPLE MANAGE EMAIL PREFERENCES PRIVACY POLICY OPT OUT OR CONTACT US ANYTIME
In fact, when you look back on most periods of American history you see a rash of new organizations being created. In the 18th century, Benjamin Franklin helped build the University of Pennsylvania, the Philadelphia Fire Department, The Pennsylvania Gazette, The American Philosophical Society, the Pennsylvania Hospital and much else.
In the 1930s, the alphabet soup of New Deal agencies were created. The late 1940s saw the creation of the big multinational institutions: the U.N., NATO, the World Bank, the I.M.F., the beginnings of the European market.
When you look around today, you see a lot of history-making new companies being created, but you don’t see too many big civic organizations. There are some great social entrepreneurs, like Bill Drayton, who started Ashoka, but the only vast national civic movements I can think of are the charter school movement and the Tea Party.
We’ve got just as many problems as previous generations faced — as many as in the progressive era, I’d say. Why has there been this decline in civic institution building?
Political polarization has got to be a big culprit. The federal government can’t build anything new, even something as obvious as a national service program. The churches have let us down, too. The Christian churches have been behind most of the big social movements in American history, like abolition, poverty programs and civil rights. But for the past generation the church has been fighting a defensive war against the sexual revolution, not an offensive assault for opportunity and human dignity.
The affluent have also been less entrepreneurial. Many civic institutions in past decades were created by people like T.R. and Pinchot, who inherited family empires but devoted their lives to civic institution building.
But I wonder if there is also a malaise, a loss of faith in the future and a loss of expertise in institution building, a sense of general fragmentation and isolation. American foreign policy, which used to be about building positive coalitions to make life better, now seems to be based on the idea that we should defensively withdraw from things. There has been a loss of civic imagination.
The good news is that one could have said the same thing in 1890, when politics was steeped in corruption and the economy wracked by crisis. But by 1910 the landscape was transformed. There were new organizations, new movements, a new mentality and a new burst of optimism.
Even the worst fires clear the way for new growth.
Keep reading...Show less
California fires leave 31 dead, a vast landscape charred, and a sky full of soot.
The reach of the blazes is spreading dramatically further by the day, as thick plumes of smoke blow through population centers across the Bay Area.
SONOMA, Calif. — Some of the worst wildfires ever to tear through California have killed 31 people and torched a vast area of the state’s north this week, but the reach of the blazes is spreading dramatically further by the day, as thick plumes of smoke blow through population centers across the Bay Area.
Everything now smells burnt. Hills and buildings are covered in a haze. Residents nowhere near the front lines of the fires now venture out wearing air masks. On a hillside above the Russian River, a broad and menacing band of fire is turning a blue sky into a gray miasma of soot.
Air-quality, based on levels of tiny particles that can flow deep into the lungs, is rated “unhealthy” across much of Northern California, and smoke has traveled as far as Fresno, more than 200 miles to the south. The effects are many: schoolchildren are being kept inside during recess, the Oakland Raiders canceled their outdoor practice on Thursday to prevent players from breathing in the bad air, and doctors are reporting an increase in visits and calls from people with lung and heart trouble.
It is the 31 deaths, however, a toll that surpasses the official number of people killed by the single deadliest wildfire in state history, that has horrified Californians. The Griffith Park fire of 1933, in Los Angeles, killed 29 people despite burning a mere 47 acres, according to officials.
Late Thursday, the authorities said they had identified 10 of 17 people who were killed in Sonoma County. Most were in their 70s and 80s, and most were found in houses. One was found next to a vehicle.
Continue reading the main story
Related Coverage
California’s Wildfires: Why Have They Been So Destructive? OCT. 11, 2017
California Wildfires Death Toll Rises to 29 as Vast Region Is Scorched OCT. 11, 2017
‘Everything Was Incinerated’: Scenes From One Community Wrecked by the Santa Rosa Fire OCT. 10, 2017
Advertisement
Continue reading the main story
“We have found bodies that were nothing more than ash and bones,” said Robert Giordano, the Sonoma County sheriff. In some cases, he said, the only way to identify the victims was by the serial numbers stamped on artificial joints and other medical devices that were in their bodies.
Continue reading the main story
Photo
William Roman, 13, wore a face mask as he watered plants in Santa Rosa. Credit Jim Wilson/The New York Times
Because the fires have sent so many residents scrambling for safety, separating them from relatives, the authorities have received reports of 900 missing people and have deployed 30 detectives to track them down. Officials said they had confirmed the locations and safety of 437 people and were still looking for the other 463.
If they cannot find them by phone or online, they send search and rescue teams with cadaver dogs to the homes — if the homes are accessible, which in many cases, they still are not.
“It’s going to be a slow process,” Sheriff Giordano said.
Statewide, there were 21 major fires still burning on Thursday, which had consumed more than 191,000 acres since the outbreak began on Sunday night, said Ken Pimlott, the chief of Cal Fire, the state firefighting agency. The number of separate fires rises and falls often, as new blazes flare up and old ones merge, but the size of the devastated area has grown steadily.
Underscoring the vast scale of the crisis, a line of fire that appeared to span at least two miles descended into Alexander Valley, a wine grape growing region in Geyserville along the Russian River. Thick white columns of smoke poured from the forested hillside above the vineyards as the fire crept down into the valley.
Health officials were particularly focused on young children, who are at a higher risk than adults from dirty air. They breathe faster and take in more air than adults because they run around more. They also have smaller airways, so irritation in those narrower pipes is more prone to cause breathing trouble.
“People with pre-existing heart and lung disease, the elderly and young children should stay in the house with the windows closed,” said Dr. John Balmes, an expert on the respiratory effects of air pollutants at the University of California, in both Berkeley and San Francisco.
Continue reading the main story
From Our Advertisers
Photo
Firefighters in Sonoma looked at a wall of smoke rising from the Norrbom Fire burning across the valley. Credit Jim Wilson/The New York Times
Certain masks can filter out fine particles, but surgical masks are useless, and so are the ones used to protect against big particles. The masks that work are a type called N95, available in many hardware stores.
Nancy Barkley, 40, a nurse from Indiana who is on a 13-week assignment unrelated to the fire emergency, drove dozens of miles from Santa Rosa to find face masks.
“I kept on driving because they were out everywhere,” she said, pulling down her surgical mask to talk.
Northern California is accustomed to wildfires and occasional wafts of smoke that drift with the winds. But nothing like this.
“I’ve lived here 50 years — I’ve never seen it this bad,” said Paul Ackerley, a 90-year-old World War II veteran.
Mr. Ackerley was walking through his neighborhood Wednesday when a woman stopped her car and offered him a mask.
Continue reading the main story
Photo
Smoke hung in the air in Sonoma’s town square on Thursday. Credit Jim Wilson/The New York Times
People closest to the fires have the greatest risk of health problems. There, heavy smoke can include toxic substances emitted when man-made materials burn. Plastics can release hydrochloric acid and cyanide.
“Smoke inhalation can kill you,” Dr. Balmes said. “There’s no doubt about that, but it’s all dose-related. If you breathe in a lot of smoke from any fire, especially a fire in a building with man-made materials that can emit these toxins, you basically have chemical burns of the airway.
“Just like your skin can slough off when it’s burned, the airway lining can slough off. It can be life-threatening. People have to be intubated and put on a ventilator,” he said.
Newsletter Sign Up
Continue reading the main story
California Today
The news and stories that matter to Californians (and anyone else interested in the state), delivered weekday mornings.
You agree to receive occasional updates and special offers for The New York Times's products and services.
See Sample Manage Email Preferences Privacy Policy Opt out or contact us anytime
Hospitals near the worst fires are struggling as they continue to take in patients.
At Santa Rosa Memorial, the city’s largest hospital, technicians installed a large air filtration system to clear smoky air from the hospital lobby. The hospital has handled 130 fire-related cases since Sunday night, when the fires began. Bus drivers in the city have been issued face masks.
“We’ve seen patients who have chronic lung disease, like emphysema, generally older patients, which is really exacerbated by the smoke,” said Dr. Chad Krilich, chief medical officer for St. Joseph Health, which includes Santa Rosa Memorial, another hospital and other facilities in Sonoma County.
“For some of them, it’s really life-threatening,” he said, adding that patients even without asthma or other lung problems are coming in with breathing trouble. Most are being treated in the emergency rooms, which would normally see 105 to 135 patients a day, but are now seeing 150 to 180 a day.
Continue reading the main story
Photo
Capt. John Clays lit a backfire on Wednesday in Sonoma County. Credit Jim Wilson/The New York Times
Their inpatient count rose at first, but they have been transferring patients elsewhere, “because we are at risk of evacuation, too,” Dr. Krilich said, adding, “We know at least 108 of our employees are homeless, and 46 others have had to evacuate.”
Steve Huddleston, vice president for public affairs of NorthBay Healthcare, said the network has two small hospitals and three outpatient clinics in Solano County, east of the fires. One of its outpatient clinics is less than a mile from the fire line, but still operating.
In the emergency rooms and the clinics, he said, “we’re seeing 100 patients a day with respiratory distress and asthmatic attacks from the smoke.”
Many have chronic lung disease or asthma, but not all.
“All of our beds are full, and they have been for two days,” Mr. Huddleston said.
He added: “We’re on the edge of feeling overwhelmed. The staffing is becoming challenging. We’ve had half a dozen of our physicians or staff members lose their homes in the fires. We have staff members who live in the evacuation zones, and they’re trying to get their belongings and their loved ones out of there.”
In areas directly affected by the fires, many schools have canceled classes for the week, leaving parents scrambling.
On Thursday, William Roman, 13, a middle-school student, was helping his grandfather in a landscaping job at a strip mall in Santa Rosa, watering plants — with a face mask on.
“If we’re going to play outside we need to wear a face mask — that’s what my mother says,” William said.
Depending on the winds, the smoke can range from heavy to none. In parts of Santa Rosa on Thursday, there was something resembling a blue sky. Yet even when the smoke was not visible, the outdoors smelled like a fireplace.
Thomas Fuller reported from Sonoma, Calif., and Denise Grady and Richard Pérez-Peña from New York. Matt Stevens contributed reporting from New York.
Keep reading...Show less
Abandoning Puerto Rico would be an impeachable offense.
Presidents do not get to pick and choose which Americans to help at times of disaster.
By Eugene Robinson Opinion writer October 12 at 7:31 PM
Follow @Eugene_Robinson
More than 80 percent of Puerto Rico is still in the dark, more than a third of its residents still have no clean drinking water, much of the island’s infrastructure still lies in ruins — and President Trump cruelly threatens to cut off federal aid. Doing so would be government by spite and should be considered an impeachable offense.
Puerto Rico, as any fifth-grader knows, is part of the America that Trump promises to make great again. But the mayor of San Juan had the temerity to criticize the Trump administration’s response to the calamity of Hurricane Maria as slow and inadequate. For Trump, everything is always all about Trump. He desperately craves adulation.
The president complained Sunday on Twitter, “Nobody could have done what I’ve done for #PuertoRico with so little appreciation. So much work!” Note the use of “I” instead of “we” or even “my administration.” For the record, what Trump has done personally for the people of Puerto Rico is playfully toss rolls of paper towels into a crowd.
The administration has done much more, of course. But desperate people — still facing critical shortages of food and water three weeks after the storm — are demanding more action. This makes them “ingrates” in Trump’s eyes.
Sadly, those are the kinds of words we’ve come to expect from this president. But on Thursday he went beyond his usual self-pitying, self-justifying blather to make an outrageous threat: “We cannot keep FEMA, the Military & the First Responders, who have been amazing (under the most difficult circumstances) in P.R. forever!”
That culminated a series of blame-the-victim tweets about how Puerto Ricans face “a financial crisis . . . largely of their own making” and how “electric and all infrastructure was [a] disaster before hurricanes.” The need to solve the island’s debt problem and update its infrastructure is worthy of serious discussion, but not while people are having to collect unpurified water in buckets from mountain springs — and not as some kind of justification for cutting off relief aid.
This may be the most un-American thing Trump has ever said or done. I am serious that if he actually withdraws emergency assistance while Puerto Rico is still in such condition, Congress should begin impeachment proceedings.
Presidents do not get to pick and choose which Americans to help at times of disaster. We are one country, and we do what we must to help fellow citizens in need. We saw it during this long, terrible hurricane season, in Puerto Rico, the Virgin Islands, Texas, Florida — strangers helping strangers, regardless of race, income, political views. We are seeing it now as firefighters from around the country converge on Northern California to attack the deadly blazes that are still burning out of control.
It is wrong to describe Trump as any kind of nationalist if he fails to grasp the most fundamental of nationalistic precepts: We leave none of our own on the battlefield.
The responsibility of the federal government is to keep FEMA workers, military personnel and other first responders in Puerto Rico as long as necessary. It is important to do so because their presence will save lives. It is also important because doing anything else would violate the American compact. If Trump really were to turn his back on Puerto Rico, he would be guilty of a “high crime” and disqualified to continue in office.
I know that Trump delights in violating political norms and causing the commentariat to run around with its hair on fire. I know that he sometimes says provocative things on Twitter to distract from his administration’s failures, to rally his base, to provoke his enemies or even just to blow off steam. I know that it’s impossible to take any one tweet too seriously, because it may be directly contradicted by the next tweet.
But Trump actually went to Puerto Rico, and while he did not see the worst of the devastation, he saw more than enough. He knows that recovery is going to be a long, massive and largely thankless job. But that is the job he signed up for when he took the oath of office. Congress must not allow him to shirk his duty.
To divide the country with rhetoric, as Trump so often does, is one thing. But to actually abandon 3.4 million Americans in their hour of need not only would be an unprecedented and shameful act. It would also be grounds for removing an unfit man from the high office he dishonors.
Keep reading...Show less
Drilling in the Arctic Wildlife Refuge: How the GOP could finally break the impasse.
The prospects for opening the Arctic National Wildlife Refuge to oil and gas exploration are better than they have been in years.
The Trump administration and congressional Republicans in recent weeks have renewed the fight over opening part of an enormous wildlife refuge in northern Alaska to oil and gas exploration.
The battle over the Arctic National Wildlife Refuge, which pits Republicans in Washington and much of the political and business establishment in Alaska against congressional Democrats and environmental and conservation groups, has been going on for decades. With Republicans holding both houses of Congress and the presidency, the prospects for opening the refuge, at least to studies of its oil and gas potential, are better than they have been in years. And a budget resolution introduced late last month, and supported by Senator Lisa Murkowski of Alaska, may help pave the way.
“There seems to be a decent opportunity to get this done,” said Thomas J. Pyle, president of the Institute for Energy Research, which promotes fossil fuels.
Here’s a look at what is happening and why, and what is at stake.
What is the refuge?
The Arctic National Wildlife Refuge consists of about 19 million acres of pristine land in northeastern Alaska. Much of the acreage was first set aside in 1960 under President Dwight D. Eisenhower; the full refuge, which is about the size of South Carolina, was established through a congressional act in 1980. About 40 percent of the land, mostly in the Brooks Range, is designated as wilderness, to remain undeveloped with no human settlement.
The refuge, one of the largest in the United States, is the nesting place for several hundred species of migratory birds; home to wolves, polar bears, caribou and other mammals; and spawning grounds for Dolly Varden trout and other fish.
“I can say definitively that it is a national treasure,” said Nicole Whittington-Evans, Alaska regional director of the Wilderness Society.
There is private land within the refuge, including the Inupiat village of Kaktovik, A Gwich’in community, Arctic Village, is just outside the refuge. Outdoor activities, including hunting, are allowed, but there are no roads or facilities except in Kaktovik.
Why might drilling for oil and gas be allowed there?
When Congress established the refuge in 1980, it deferred action on the issue of whether oil and gas exploration should be allowed in part of it: 1.5 million acres of coastal plain between the Brooks Range and the Beaufort Sea. This land came to be called the “1002 area,” after the part of the act that refers to it, and it was thought likely to contain a lot of oil because it was not far from Prudhoe Bay and other parts of the North Slope where large oil fields had been discovered beginning in the 1960s.
But the 1002 area is also a critical habitat for much of the refuge’s wildlife. Polar bears make dens there, and it is where most of the huge Porcupine caribou herd — 200,000 animals in all — come in spring and early summer to calve and forage for food.
The 1980 act allowed for studies to determine the potential for oil and gas development in the 1002 area. In 1984 and 1985, a consortium of oil companies undertook seismic studies, in which special trucks “thumped” the ground and the reflected sound waves provided details about rock formations and potential oil and gas reserves in them. A 1998 assessment by the United States Geological Survey that relied in part on those seismic studies estimated that the 1002 area contained 4 billion to 12 billion barrels of recoverable oil. (The North Slope currently produces about 180 million barrels a year.)
Republicans have long wanted to open the area to drilling, or at least to allow new seismic studies using improved technology to get a clearer picture of where the oil is. Environmental groups say that even studying the land in this way damages it — they say there are still signs of the 1980s seismic work on the landscape — and that the area is too important to wildlife and should remain protected.
Many political leaders and business interests in Alaska favor opening the refuge. Producing more oil and gas would add to state revenues, which have fallen in recent years as North Slope oil production has declined and prices have fallen. Native Alaskans in the region tend to be divided on the issue.
Unlike some other federal lands that can be opened to drilling by Interior Department actions, opening the refuge requires congressional action.
How might drilling be allowed there?
This year, Republicans opened the fight on two fronts. In a memo in August, Interior Department officials proposed changing a rule that had limited exploratory studies in the refuge to the mid-1980s. Under the proposed change, such studies could now be undertaken anytime.
Then, in the past few weeks, Republicans in the Senate introduced a budget resolution that would in effect tie opening the refuge to the budget. The resolution would require the Senate Energy and Natural Resources Committee — headed by Ms. Murkowski, long a drilling proponent — to come up with a plan to generate $1 billion in new revenues over 10 years. A budget resolution introduced in the House in July would require a House committee to come up with a similar plan.
A compromise House-Senate plan, which presumably would involve selling oil and gas leases in the refuge as the way to generate the revenue, would eventually be voted on as part of the budget process. Only simple majorities would be needed for passage. Republicans in the Senate, who hold 52 seats, would not need the 60 votes required to overcome a filibuster.
This approach has been tried before, once during the Clinton administration — when it was vetoed by the president — and in 2005, when opposition from moderate Republicans scuttled the idea.
Senate Democrats immediately announced opposition to the budget move this time, but to block it they would need at least a few Republicans to join them.
The Interior Department’s proposed change to allow new seismic studies would have to go through a public comment period and would likely be challenged in court by environmental groups.
What would the impact be?
There is no certainty that oil companies would rush to study or further explore the potential for oil and gas production in the refuge, especially with oil prices, currently about $50 a barrel, far lower than they were earlier this decade. Shell pulled out of plans to drill for oil in Arctic waters off Alaska two years ago, citing high costs and other factors.
Mr. Pyle said there were many issues, including oil prices and production costs, that companies would have to consider before deciding to proceed in the refuge. But, he said, “the economics work better on land than offshore.”
If the refuge were opened, the first step would be to conduct new seismic studies, likely using technology that produces three-dimensional images of underground formations. Then, exploratory wells would be drilled; if they proved successful, production wells would follow. How long the process would take would depend on many factors, but one estimate is that oil could be flowing within five years.
Proponents of drilling in the refuge sometimes cite a proposal offered by Republicans more than a decade ago to limit the footprint of oil and gas wells and any related activities to 2,000 acres, just a tiny fraction of the refuge’s 19 million acres. They note that technologies like directional drilling, which allows multiple wells to be drilled outward from one platform, would reduce the overall impact.
But environmental groups say that the 2,000-acre footprint is misleading. Even if the wellheads cover relatively little area, roads, pipelines, facilities for workers and other structures could have a much bigger environmental impact. Among other things, they say, the infrastructure and activity could disturb caribou and lead them to abandon their usual calving sites for less suitable locations outside the 1002 area.
“There is a large and growing segment of the public that really understands there are some places we protect,” said Sarah Greenberger, vice president for conservation at the National Audubon Society. “And there’s a continued sense that this is one of those places.”
Follow @NYTClimate on Twitter
Keep reading...Show less
Members of Congress want a federal audit of the official Puerto Rico death toll.
“The American people deserve to know what’s happening to their fellow US citizens in Puerto Rico.”
Two Democratic members of Congress on Thursday requested an audit of the death toll in Puerto Rico following Hurricane Maria, amid concerns that the government is undercounting the number of victims.
The request cites a Vox report published Wednesday that found a significant discrepancy between the government’s official death toll of 45 and reports from the ground. Our analysis found a total of 81 deaths linked directly or indirectly to the hurricane; another 450 reported deaths, most of causes still unknown; and reports of at least 69 people still missing.
In their letter to Department of Homeland Security Secretary Elaine Duke, Rep. Nydia Velazquez (D-NY) and Rep. Bennie Thompson (D-MS) wrote, “It would be morally reprehensible to intentionally underreport the true death toll to portray relief efforts as more successful than they are. If, on the contrary, this information has benignly been muddled due to a lack of capacity on the island, then the federal government must work hand-in-hand with Puerto Rico's government to provide a clearer assessment.”
Velazquez and Thompson went on to ask the Department of Homeland Security to do the following:
Conduct a federal examination of all death estimates provided by local authorities.
Evaluate the accuracy of such estimates and whether or not their methodology is appropriate.
Send a report of these findings to Congress within 10 days.
“The American people deserve to know what’s happening to their fellow U.S. citizens in Puerto Rico,” Velázquez said in a statement. “Given recent reports suggesting that the death toll is much higher than is being officially acknowledged, we need a swift and thorough investigation to ensure the real magnitude of this crisis is made public.”
Keep reading...Show less
Industry seeks legal cover with replacement rule.
As the Trump administration mulls whether to replace the Obama-era Clean Power Plan, its legal foes are already plotting creative courtroom challenges against U.S. EPA and directly against utilities.
As the Trump administration mulls whether to replace the Obama-era Clean Power Plan, its legal foes are already plotting creative courtroom challenges against U.S. EPA and directly against utilities.
If the agency drags its heels on replacing the rule, declares that it won't replace it at all or issues a narrower rule, lawsuits are certain. Among the tactics environmental lawyers are eyeing: bringing climate change "nuisance" claims under common law — where those suing would argue that they're harmed by emissions — and filing direct citizen lawsuits against EPA. Those prospects have industry worried and are part of the reason some are pushing for a replacement.
"If EPA is not acting like it is taking this issue in hand and moving forward aggressively against this singularly serious threat ... there will be more pressure for innovative remedies, innovative approaches," said Sean Donahue, an attorney representing environmentalists in the ongoing Clean Power Plan litigation. "A picture of abdication is going to inject a lot of energy into efforts to find other ways to get at these emissions," he said.
The Obama administration's Clean Power Plan required states to craft strategies to reduce carbon dioxide emissions from existing power plants. On Tuesday, EPA Administrator Scott Pruitt formally began the process to repeal the rule. EPA also said it's considering whether to issue a replacement rule. A replacement from the Trump administration is expected to forgo the broad approach that the Obama administration took and focus more narrowly on efficiency limits at specific power plants.
The prospect of being vulnerable to widespread common law and citizen lawsuits is extremely unattractive to industry, which could face steep legal costs and settlement fees. Having a replacement rule for the Clean Power Plan could help take some of the legal uncertainty off the table.
"I think that for several reasons, the vast majority of people in the business community believe that there should be a reasonable regulation instead of no regulation at all," said Jeff Holmstead, an attorney at Bracewell LLP. "Part of that is they think that that protects them against these nuisance suits, I think that's certainly part of it. They would also just like to have some regulatory certainty."
Looming over the legal debate is a 2011 Supreme Court decision.
In the 2011 case American Electric Power Co. v. Connecticut, a state-led coalition sued six power companies, arguing it was hurt by the companies' emissions contributing to climate change. But the justices ruled that the Clean Air Act pre-empted such federal common law claims. Because the court had previously ruled that EPA had the authority to regulate greenhouse gas emissions, the ruling was seen to preclude common law claims brought under federal law.
The question being pondered now: What if EPA doesn't actually act to limit greenhouse gas emissions?
"At the time AEP was decided, it looked like EPA was actually going to move forward with fulfilling its statutory duty," Donahue said. "And so it is certainly a significant change in the game to see EPA pulling back from fulfilling its statutory duty, and I think we'll have to see what happens."
Multiple legal experts, though, said they see an uphill battle for climate change claims brought under common law, even in the absence of any EPA limits on greenhouse gas emissions.
That's because, in the 2011 opinion, Justice Ruth Bader Ginsburg wrote that displacement occurred when Congress passed the Clean Air Act. "The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue," the opinion says.
"It's the legislation that displaces or pre-empts, not regulation," said Michael Burger, executive director of Columbia University's Sabin Center for Climate Change Law.
Eric Glitzenstein, partner at Meyer Glitzenstein & Eubanks LLP, a D.C. law firm that was involved in AEP, was not optimistic about using federal nuisance cases either, citing the Supreme Court's broad ruling in the 2011 decision. "I have a hard time seeing how one would get around that," said Glitzenstein, who represented Defenders of Wildlife, the Center for Biological Diversity and the National Wildlife Federation in an amicus brief in AEP.
According to Tom Lorenzen, an attorney at Crowell & Moring LLP who's represented utilities in the litigation opposing the Clean Power Plan, "displacement continues to hold whether there's a replacement rule or not because EPA has the authority to regulate under [the Clean Air Act]."
However, he added, "I think there's less incentive for environmental groups and others to try to bring these suits if the federal government is regulating."
Judges 'may take it into their own hands'
But experts note that the "displacement" in AEP extends only to federal common law and not to claims brought under state law.
"There's nothing the Trump administration can do to shield power companies and coal companies from liability under state law, so they can't get that kind of shield," said David Doniger, director of the Climate & Clean Air Program at the Natural Resources Defense Council.
As the Trump administration works to kill the Clean Power Plan, cities and counties in California are already turning to state common law.
Since July, three California cities and two counties have sued companies for damages related to climate change under state public nuisance law. The lawsuits claim that the companies — which include BP PLC, Chevron Corp., ConocoPhillips Co., Exxon Mobil Corp. and Royal Dutch Shell PLC — have intensified climate change and exacerbated costly sea-level rise.
"We're going to ensure that those responsible for the problem are held to account," Dennis Herrera, San Francisco's city attorney, said last month (Climatewire, Sept. 21).
David Bookbinder, counsel at the libertarian Niskanen Center and former climate attorney at the Sierra Club, said that judges have dealt with claims of injuries to people and property for centuries. While climate change cases are more complex, they may be more likely to succeed the longer Congress and EPA punt on regulating industrial emissions.
"The longer the delay, the more likely it is that judges, be they state or federal judges, will be receptive to the idea that they are the only ones who can do anything," he said.
He added: "The judges don't want to do this. They would far prefer that either Congress dealt with it or EPA dealt with it. But they may take it into their own hands."
Still, state common law claims on climate change are a relatively untested legal area. Up to now, courts have expressly declined to address such claims, Burger said.
If the state lawsuits fail, it could increase the impetus for filing federal common law claims as a "tool of last resort," Burger predicted.
"It seems perfectly plausible that a city, a state, an environmental organization would say, well, what are we going to do?" he said. "The courts are blocking state common law avenues, the federal government is not doing anything, courts aren't forcing them to do anything — we have to go back to the idea that there's a right that's being infringed on here."
Some conservatives are dismissing concerns about both federal and state nuisance cases.
The Texas Public Policy Foundation, a conservative nonprofit, pointed to the decision in AEP when representatives met with White House officials last month.
In a handout given to administration officials, the foundation noted it was difficult at both the state and federal level to prove injury from greenhouse gases from specific sources or categories of sources since they are emitted worldwide, from "virtually every nook and cranny of the developed and developing world."
"Even in the event that a legally defensible scientific case could be made that total global anthropogenic emissions are significantly contributing to climate change, allocating responsibility among emitters everywhere will be an impracticable task for federal courts to undertake," the group wrote.
Citizen suits
If EPA declines to replace the Clean Power Plan or slow-walks a new rule, the agency will also likely face direct legal challenges from supporters of climate action, lawsuits known as citizen suits. States, environmentalists and health groups could file citizen suits that challenge the Trump administration's unreasonable delay or failure to act.
It wouldn't be the first time on this issue. In fact, the Clean Power Plan came about after a yearslong legal tug of war ultimately won by states that wanted EPA to crack down on climate-warming emissions.
After the 2007 Supreme Court decision finding EPA has the authority to regulate greenhouse gases, the Sierra Club and Our Children's Earth Foundation then filed a citizen suit pushing EPA to craft power plant emissions standards. EPA responded by issuing a rule that set new performance standards for power plants but did not address carbon dioxide.
New York then filed a separate lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit that prompted a 2007 settlement allowing EPA to take another stab at power plant standards, this time incorporating greenhouse gases. After years of additional legal wrangling and another Supreme Court decision affirming EPA's authority, the Obama administration issued the Clean Power Plan.
"It's almost certain that if EPA moves forward with the repeal and doesn't do anything on the replacement or moves so slowly on the replacement that in effect nothing will happen, I would expect that there would be a lawsuit filed against EPA of the same sort arguing that EPA is thereby violating a nondiscretionary duty," said Richard Revesz, director of New York University's Institute for Policy Integrity.
Some conservative lawyers have pushed back on just how firm that duty is. They have argued that the Clean Air Act simply does not give EPA the tools to regulate carbon dioxide emissions from power plants, or that the agency's determination that such emissions endanger public health is not specific enough to compel regulation for the power sector.
Environmental lawyers largely shrug off those arguments, pointing to EPA's 2009 endangerment finding for greenhouse gases and Supreme Court cases that have affirmed the agency's authority.
"If he does nothing at all, we can bring various kinds of litigation to force him to act," NRDC's Doniger said. "The D.C. Circuit itself has indicated that he has an obligation to act, and at least some of the judges there are looking at their wristwatches."
Doniger was referring to a recent concurrence from two D.C. Circuit judges who agreed that litigation over the Obama rule should be put on hold but cautioned that EPA has a legal duty to act on climate change.
"Combined with this court's abeyance, the stay has the effect of relieving EPA of its obligation to comply with that statutory duty for the indefinite future," Judges David Tatel and Patricia Millett wrote in August. "Questions regarding the continuing scope and effect of the Supreme Court's stay, however, must be addressed to that Court."
Revesz said that the uncertainty provides a good reason for the D.C. Circuit to decide whether the Obama rule is legal. The court has put litigation over the rule on hold as the Trump administration decides what to do with the rule.
"The fact that this litigation is likely to be coming up down the road actually provides a pretty strong argument for the D.C. Circuit to decide the pending challenge to the Clean Power Plan now as opposed to waiting for this whole process to unfold," Revesz said.
He added: "If the D.C. Circuit, for example, upheld the Clean Power Plan, a lot of these things would get resolved. There'd be no federal common law actions. We would know that the repeal is illegal, and there would be a fair amount of certainty and less litigation."
Reporters Niina Heikkinen and Robin Bravender contributed.
Twitter: @apeterka Email: areilly@eenews.net
Keep reading...Show less
The toxic air covering Northern California.
They may be far away from the flames, but millions of residents are inhaling deadly pollution from the devastating wildfires.
“It is completely unsafe to be here at this moment,” said Jennifer Franco, a resident of Fairfield, California, on Wednesday afternoon, as massive wildfires ripped through Santa Rosa and Napa a few miles west. But she wasn’t talking about the flames—she was talking about the smoke. Accelerated by high-speed seasonal winds, ash-laden air was blowing eastward, directly into her neighborhood. “Since Tuesday morning, air quality is beyond terrible,” she said. “I’ve been having chest pain, and now I’m using a respirator.”
In Sebastopal, just west of Santa Rosa, winds were blowing in a more favorable direction. But retired social worker Vaughn Whalen said gray haze still obscured the blue sky there, making the sun look eerie, dull, and orange. “I’m a tougher old fella,” he said, when asked about how he was dealing with the smoke. “But a friend of mine who lives nearby has asthma. She was telling me that the smoke is in the house. Her eyes are burning. Her chest hurts. She has difficulty breathing.”
The most immediate threat from the 22 devastating wildfires currently roaring through California are the immediate fire zones. At least 21 people have died there; more than 600 people have gone missing; and thousands of buildings have been destroyed. But beyond the fire zones, millions of Californians are facing a secondary, more insidious threat: polluted air, rife with tiny particles small enough to penetrate deep into the circulatory system. Those potentially deadly particles are creating unhealthy air as far as 70 miles away from fire zones, according to Bay Area Air Quality Management District spokesman Tom Flannigan. But people closer to the fire zones are even more at risk, since the air in those regions could also be tinged with toxic heavy metals like arsenic, cadmium, copper and lead, as the smoke picks up chemicals from burned-up plastic, cars, and building materials.
“These are unprecedented conditions,” Flannigan said, estimating that four to five million people living in the Bay Area are breathing toxic air outdoors. “We’ve measured some of the highest air pollution ratings in the Bay Area ever recorded.” For context, Flannigan pointed to Beijing, China, perhaps the poster city for air pollution. “When they measure in Beijing on their worst days, they’re around 500 on the Air Quality Index,” he said. “And those are the kind of readings we’ve been seeing here.”
The particles within this smoke pose the biggest short-term risk to human health. It’s been extensively proven that high-dose exposure to so-called “fine particulate” pollution, or PM2.5, can trigger death, particularly in people with pre-existing conditions like asthma or heart disease. And breathing in smoke can make anyone—even healthy people—experience chest pain, dizziness, or shortness of breath. In California, those effects are already turning up: At least 20 people from outside immediate fire zones had visited UC San Francisco’s hospital facilities due to symptoms from smoke inhalation as of Tuesday evening, according to UCSF spokesperson Elizabeth Fernandez.
There’s also a risk that some Californians could suffer longer-term health consequences from this wildfire smoke. “Right now we’re most worried about exacerbations of preexisting diseases,” said John Balmes, a physician and professor of medicine at UCSF. “But with the heavy exposure to air pollutants in the fire zone, people could actually develop asthma from smoke exposure.” Breathing in carcinogens like arsenic from wildfire smoke could also cause cancer, but “that hasn’t been well-studied,” Balmes said.
It may seem like these situations are inevitable or happenstance, that there’s nothing people or the federal government could do to mitigate disaster-related conditions that threaten the health of so many Americans. But that’s just not the case. Indeed, just last week, the House Subcommittee on Environment held a hearing about the role of fire-related air pollution—and in striking contrast to virtually all other environmental concerns, Republican lawmakers are leading the charge to figure out how to stop air pollution from wildfires from getting so bad.
Republican Congressman John Shimkus from Illinois, the chairman of the environment subcommittee, expressed outrage over the unprecedented pollution from wildfires now enveloping the West. “Nearly every other significant source of combustion—from vehicles to power plants to factories—are subject to very stringent controls. But the emissions from wildfires are completely uncontrolled,” he said. “Congress should be looking at any and all ways to address wildfires and their air emissions, and most important of all, the policy measures that can help prevent or minimize wildfires in the first place.”
Obviously, the federal government can not control wildfire smoke pollution the same way they control pollution from coal plants or cars—forests do not choose to release smoke into the atmosphere. But serious discussions can be entertained about how to reduce the risk and intensity of fires through better management of forests, particularly forests on public lands. “Often, the largest and most polluting fires originate on or involve federal lands,” Shimkus said during last week’s hearing.
UCSF physician John Balmes agrees. That’s why he argues for better funding for the the U.S. Forest Service, which oversees national forest land. Oftentimes, he said, the agency does not have the money to do its job. “Their budget has to be supplemented every year for the funds to fight fires, and they usually don’t have money to do preventative maintenance tasks like clear out underbrush and get rid of dead trees,” Balmes said. Improper funding also means that Forest Service officials are short of resources to carry out prescribed or controlled burns, which reduce the risk of extreme wildfires in the future.
Predictably, however, enhanced funding for the Forest Service is not a Trump administration priority. Quite the contrary: The White House’s proposed budget would cut $300 million from the Forest Service’s wildfire fighting initiatives, together with $50 million from its wildfire prevention efforts. The proposed budget would also reduce funding for volunteer fire departments by 23 percent. And even with the California GOP delegation in Congress determined to shield their constituents from intense wildfire air pollution, most Republican lawmakers still refuse to acknowledge that man-made climate change is making these wildfire seasons worse. Even Shimkus, for all his eagerness to regulate the adverse effects of wildfires on air quality, is a climate denier: He has said God would never let climate change ruin the earth.
What’s certain is that climate change will ruin humans’ ability to inhabit the Earth. And the air pollution from wildfires is just one among a growing roster of weather-related disasters wreaking havoc for humanity. (See also: Puerto Rico, Texas, and Florida, over just the past month-plus.) “We’re already seeing an increase in catastrophic wildfires in California, and it’s only going to get worse as the climate gets warmer and drier,” Balmes said. So long as Trump and congressional Republicans deny climate change—and therefore do nothing to slow its impacts—the health hazards from those wildfires only stands to get worse as well.
Emily Atkin is a staff writer at the New Republic.
@emorwee
Keep reading...Show less
ORIGINAL REPORTING
MOST POPULAR
CLIMATE
