Friday, November 14, 2014

The Chief Scores a Huge Win for Climate; but the Beltway Band Plays On

Even good news is treated to a chilly reception by many Republican political leaders.  Witness the reception given to the preliminary announcement by China of emissions reductions pact with the United States.  Various Republican leaders have said various unkind things about President Obama’s historic announcement this past week, none of which dignify a serious response.  Rather they need a fact check.   

Charles Krauthammer himself said of President Obama’s visit: “I think the one item he could negotiate, and I'm serious about this, climate change. That's the one where if we and China could agree it would make a difference. You could shut down every coal mine in Kentucky it won't make a dime's worth of difference. If he gets an agreement with China, which he won't, but that's the one area it would be historic.”  Note Krauthammer's use of the qualifiers "I'm serious about this" and "which he won't." 

Like Krauthammer, many of President Obama's climate policy critics have been complaining for years that action to reduce carbon pollution is a nonstarter in the United States since the Chinese refuse to do anything about it.  Now President Obama has done what his opponents said he needed to do,  It is clearly miscreant behavior to demand that your opponent take a step and then torpedo that opponent for taking said step.  Such behavior is miscreant because it is mendacious.

I think President Obama’s pledge with China was a profound and defining leadership moment.  Coal energy kills Americans.  Coal energy also kills many more Chinese.  Both countries owe it to coal energy’s victims to chart a different course. Now there are no reasons to wait, only excuses.  Creative conservative approaches are available just as are flexible regulatory approaches.  Now is the hour to act.


Tuesday, November 11, 2014

Water, Water, Everywhere?

As I type these lines, I hear rain falling on the roof of my house.  Rain, snow and ice have been the great drivers shaping this land we call North Carolina for millions of years.  The Earth’s crust has vaulted mountains of rock towards the western sky, but rain, snow and ice turned that rock into soil.  Nourished by the water and the soil, our verdant Appalachian Mountains are home to the most diverse ecosystems east of the Mississippi.  The Earth’s crust opened up a massive rift in the center portion of our state, but rain, snow and ice reshaped the hole into a series of rolling hills, creating the piedmont’s abundance of small streams.  Advancing and retreating coastlines created a broad plain dotted with oval lakes and fringed with a string of sandy islands where English settlers first established their tiny colony.  Our state’s history is water.
And so is our world’s.  Water was understood by ancient rulers and sages as the source of life.  The annual flooding of the Nile created the Egyptian breadbasket.  Moses brought forth water to the children of Israel in the desert to preserve their life, after calling upon water to destroy their enemies from Egypt.   Western civilization sprung forth in the area known as the Fertile Crescent, a place made fertile by the presence of abundant water from rainfall feeding the great rivers Jordan, Tigris and Euphrates.  Rome was built on the Tiber, but soon outgrew that River as a source of drinking water, bringing in huge quantities of water from surrounding mountains by gravity.  Emperor Justinian’s code stated the law that flowing water belongs to no person, any more than the sea belongs to any single person.  Rather, flowing water is the property of all for the benefit of our children and their children in a sacred trust. 
When any government acts to impair that trust, the people resist it. In 1215, at Runnymede on the banks of the Thames, King John was forced to sign a charter setting forth the rights of his subjects.  Among the abuses the Magna Carta corrected, was the royal habit of granting exclusive fishing privileges in the Thames and other rivers in England to favorites in the royal court.  The Magna Carta also protected the growth of the common law, under which England thrived for centuries and which England gave to her American colonies as their legal heritage, including their laws regarding water.
In 1774, Thomas Jefferson published a short pamphlet setting forth his property theory, captioned the “Summary View of the Rights of British America,” which publication got him added into a bill of attainder by the British parliament.  Jefferson’s theory was that the settled colonists did not own their land by permission of the King, but by their blood, sweat and tears -title held by a society which settles an area.   British lands were owned under feudal title-title derived from the British Crown.  Jefferson returned to an older concept, sovereignty of the soil within the people of a society which settles that land.
Upon declaring its independence two years later, North Carolina became a free state, no longer bound to follow the laws of the British Crown.  In its very first Constitutional Declaration of Rights, the North Carolina legislature declared its sovereignty over the soil for all of the land bounded in the charter of Carolina, including its waters.   
The independent State of North Carolina declared:
“The property of the soil, in a free government, being one of the essential rights of the collective body of the people, it is necessary, in order to avoid future disputes…Therefore all the territories, seas, waters, and harbours, with their appurtenances, lying between the line above described, and the southern line of the State of Virginia, which begins on the sea shore, in thirty-six degrees thirty minutes, north latitude, and from thence runs west, agreeable to the said Charter of King Charles, are the right and property of the people of this State, to be held by them in sovereignty.”
Titles perfected by residents of North Carolina tracing to royal grants were respected, but like Jefferson, North Carolinians rejected the notion that the British Crown was the source of their land titles.  While North Carolina’s legislature adopted the common law of England as its own, North Carolina’s judges did not feel bound by the common law of England and freely changed that law when it did not suit the needs of North Carolina’s commercial growth.  When the natural flow doctrine (aqua currit et debet et currere ut currere solebat) impeded the ability of millers to harness the power of North Carolina’s streams for industry, the courts changed the law.  North Carolina’s courts created an exception for reasonable use by owners of land abutting the water, riparian land.  In shorthand, we refer to this exception as riparian rights.  It is well argued that North Carolina’s courts were borrowing from American scholars who favored the French rules of watercourses from the Code Napoleon.
Other states west of us, rejected riparian rights as a limit on industry and agriculture.  In those states, you did not need to own land adjacent to river to use it, you just needed to be the first person to claim the water, usually by digging a ditch to get the water from the river to your farm.  These states were worried that riparian rights would lead to people hogging the water even when they had not been using it.  In these states, the first user became the rightful user and all others had to line up behind, even when they owned riparian land. We refer to this system as prior appropriation.
But whether you are in the east or the west, running water is not your property.  Your system of laws will give different people different rights to use the running water.  These rights powered the industrial revolution in America, through mills and factories.  These rights powered the Green Revolution here which saw a fivefold increase in agricultural productivity within a few decades.  Now these rights also power tourism economies in western North Carolina and along its coasts. 
Protecting these rights against encroachment is vital to protecting these resources for our children and their children.  As population grows, so does the competition for these resources.  Abundant rainfall is not enough to prevent shortage of water supply, just look to the example of Atlanta.  As Atlanta grows, so will its search for water supply widen to include its neighboring states, like North Carolina.  Water waste will become less profitable as water becomes scarcer.  In order to protect these resources for our children and their children, we will have to be better stewards of those resources than we are today.




Tuesday, October 15, 2013

Gerrymandering and Standoff Politics

Speaker of the House John Boehner claims that his caucus is protecting the American people from the Affordable Care Act.  Speaker Boehner claims that the House is just expressing the will of the American people.  Pundits all proclaim that this standoff is politics as usual.  On the Sunday show circuit, Speaker Boehner says all that is needed to break the impasse is a phone call from the President to negotiate.  The big difference between this fight and past fights is the way in which a third party has used gerrymandered districts to control a major political party.  The Tea Party now has control of a part of the GOP’s brain, and will not relinquish its control unless it achieves its objectives, no matter the cost to the country or to democracy.
It is certainly true that the Affordable Care Act has been a lightning rod of partisan positioning for years.  It is also certainly true that the Congress has used the power of the purse to enact or frustrate policy on a wide range of issues, specifically through budget riders. 

But the current fight was not a last minute sticking point, but a calculated and strategic ambush of the federal treasury.  Earlier this month, journalists reported on the planning that went into the shutdown fight.  For months, Ed Meese helped coordinate a strategic plan to use a shutdown of the entire federal government to sabotage “Obamacare” by starving it of funding. 

The Tea Party movement to sabotage the Affordable Care Act is not starving for funding at all.  According to the Times Article, hundreds of millions of dollars in donations are funding the long term fight.  The New York Times reported “The largest recipient of Freedom Partners cash — about $115 million — was the Center to Protect Patient Rights, according to the groups’ latest tax filings. Run by a political consultant with ties to the Kochs and listing an Arizona post office box for its address, the center appears to be little more than a clearinghouse for donations to still more groups, including American Commitment and the 60 Plus Association, both ardent foes of the health care law.” 

Add on top of this big pile of organized money, a small third party with strong convictions and you have a truly strange sight in American politics: the parliamentary tyrant.  Tea Party Patriots believe that shutting down the government and even ignoring the debt ceiling are not economically damaging.  Yet they see that their opponents value these objectives and must defend them.  The Tea Party’s opponents here are everyone else: both the GOP and Democrats.  It is a three-way standoff.

Which brings us to how the Tea Party uses gerrymandering to get their candidates’ influence increased within their host party, the GOP.  As gerrymandered districts increased in the wake of the 2010 census, this increased the number of districts where a primary threat was more significant than a general election challenger.

In the 2012 elections, American voters in House Races cast 59,967,096 votes for Democratic Candidates and 58,523,501 votes for those from the GOP, a vote margin of more than 1.4 million in favor of Democratic candidates.  After the smoke cleared, the people’s house had 234 GOP Reps to 201 Democratic Reps.  At the end of the day, more Americans voted to elect Democratic Congressman than voted for GOP, but more GOP got elected anyway.  Most, but not all, of that difference is the intended result of GOP gerrymandering, packing Democratic voters into bizarre districts.

So to put this in context, consider the 12th Congressional District in North Carolina.  It is 120 miles long and barely 20 miles wide.  It looks like a snake, rather than a salamander.  The 12th District’s current boundaries were drawn by the GOP majority in North Carolina.  In the 12th District in 2012, President Obama won the hearts and minds of 78.5 % of the voters casting ballots.  Only a challenge from the left of 12th Congressional District could conceivably defeat the incumbent.   The same is true in the 1st and 4th Districts, although the 12th is demonstrably the worst gerrymandered district in the United States.  As for the rest of the North Carolina Congressional Districts, a primary challenge from the right is the real threat, with the exception of District 7, held by Democratic Congressman Mike McIntyre against the odds.  The gerrymandering in North Carolina has now made the primaries more important than the general elections in determining who represents any person.  David Price won his District 4 seat by 14 points in 2010 and by 48 points in 2012.  Now the too-comfortable margin for Rep. Price has become the comfortable margin for new GOP reps.

And so, to protect a majority of GOP House seats, the GOP has killed representative democracy’s chances of governing from the middle.   Only the fringes are left for contention in their bizarre maps.  At present, the fringes who are making primary challenges are the Tea Party. Thus we have created a legislative tyranny of a minority faction who believe that they must root out GOP members who are willing to compromise.  
Princeton’s favorite dirigible has opined that President Obama must have skipped class on the day they taught separation of powers in Constitutional Law. In addition, Dr. Will compared the Affordable Care Act to the Fugitive Slave Act.  I would respond that Dr. Will skipped the lecture on the pitfalls of argumentum reducto ad absurbem.

 


Saturday, October 5, 2013

Gerrymandering and Hostages

In the popular press, the current government shutdown is being treated as a hostage crisis or an act of civil disobedience.  For Fox News enthusiasts, brave patriots such as Senator Ted Cruz are correcting executive branch abuses.  For another segment of the public, the Tea Party is holding the federal government hostage because they despise the federal government and wish to shut it down for good.  Most of the public views both Congressional leaders as childish and pedantic.  Few want to admit what it really shows.

American politics is broken.

One of the things which broke it, is the Gerrymander.


The source of Gerrymander as a noun, dates from a political cartoon published in Boston in 1812.  Elbridge Gerry , then Governor of Massachusetts, had signed a bill into law which favored the Democratic-Republicans over the Federalists.  One of the districts was sinuous, like a mythical salamander.  The cartoonist superimposed the drawing of a mythical salamander over the District and dubbed it the Gerrymander, placing full credit and blame on this outrage on Governor Gerry.

Gerrymander is now used as a noun or a verb.  The word is used to describe the use of redistricting to give political advantage to one political party by concentrating political opponents into a district.  Thus, we call it gerrymandering whenever one political party uses redistricting to increase their political advantage.  In a two party system this is particularly effective, especially when combined with single member districts and closed primary elections.

In 2012, American voters cast 1.3 million more votes for Democratic candidates in the House of Representatives than for Republicans, yet Republicans increased their control of the House.  As many as 21 net Republican seats in the House of Representatives are reflective of an advantage in Republican gerrymandering following the 2010 census. 

The United States has been infected with gerrymandering abuse for 200 years.   Both parties have done it.  Everyone agrees it is wrong. The 2010 census gave House Republicans a gerryamandered advantage which will persist until 2020.  This insulates those seats from any response to political pressure from independents in closed primary states, as only a primary challenge from the right can unseat a gerrymandered representative. 

Now it has killed our political process and has taken our government hostage.

Friday, September 27, 2013

Which is it Mitch?


Less than two years have passed since North Carolina began studying fracking issues. When lawmakers first announced their desire to study statutory changes to allow fracking, they promised to wait and study the facts before deciding whether to allow fracking.  Experts from other states and from our Department of Environment and Natural Resources (“DENR”) agreed that the state should study the groundwater quality in the area before fracking occurs.  This scientific study is needed so the new fracking rules will protect water.   This week news reports show that DENR is refusing EPA money to do the study before the rules are developed and signaling layoffs for water research.  Durham’s County Commissioners wisely protested DENR’s decision as the wrong course at their meeting on Monday.

On October 10, 2011, DENR conducted a public hearing in Sanford, North Carolina. 
Current DENR Assistant Secretary Mitch Gillespie was at that meeting.  In 2011, Gillespie was still serving in the House of Representatives.  Rep. Gillespie was the legislative leader most responsible for crafting HB 242, the bill which called for fracking study.  Rep. Mike Stone accompanied him and explained to the audience that: “We need this information so we can develop either the best reason to frack with the best law in the nation, or not to frack at all.” 

Rep. Gillespie’s version of HB 242 directed DENR to answer a series of questions, including whether there was enough water in the area to do fracking.   DENR staff outlined all the steps needed to update North Carolina’s oil and gas laws from late 2011 into the summer of 2012.  Staff worked hard to pull this information together. From the very beginning DENR staff told the public that the State needed to sample groundwater in the shale areas to establish a baseline for groundwater quality.  This baseline would be used to help revise our oil and gas laws and to draft the regulations that would protect the State’s groundwater resources.  

Based on this information, DENR’s report recommended that the State conduct baseline groundwater testing in the regions with shale.  DENR also asked a neutral, non-profit task force called STRONGER to come and review the steps North Carolina must take to safely develop oil and gas.  STRONGER also recommended that the State conduct baseline groundwater testing in the regions with oil and gas potential. No one disputed this recommendation in the STRONGER process. 

Baseline testing protects the public health and the economy.  The baseline is what tells you whether the water is clean now and whether it is safe to drink.  It will also tell whether the groundwater is suitable to be used to supply the fracking operations with the water they need.  Water resource managers need this information to help insure we have enough clean drinking water.  DENR needs this information so it can develop rules to protect the drinking water now underground. 

Representative Gillespie had a reputation for targeting DENR, having jokingly painted a bullseye on his office window so that it lined up with DENR’s old office building.  About a year after the Sanford public hearing, Representative Gillespie resigned his seat in order to become an Assistant Secretary at DENR.  Representative Gillespie championed public involvement and sound science.  Less than six months into the new job, Assistant Secretary Gillespie had already changed his tune, supporting Halliburton's efforts to keep fracking chemicals secret because he did not want DENR to have the information.  Assistant Secretary Gillespie’s methods of handling fracking issues have moved from open public hearings to behind closed doors. 

DENR had asked the US EPA to help pay for the baseline testing and EPA agreed to pay for the costs.  Now DENR has turned that check down.  Assistant Secretary Gillespie appears to have forgotten what Representative Gillespie promised to the folks in Sanford a couple of years ago: a comprehensive study of all the issues. 

Division of Water Resources Director Tom Reeder is claiming responsibility for this decision.  Considering how tight DENR's budget has been the past two years, he could not have made a decision to turn down $600,000 without checking with his boss, Gillespie.  Reeder is just following orders. Gillespie is the one who promised to study all the issues

DENR’s mission is to protect the environment.  Forty years ago, voters in North Carolina approved a Constitutional Amendment which sets forth his agency’s mission.  That provision states in part: “It shall be the policy of this State to protect its lands and waters for the benefit of all its citizenry.”   Assistant Secretary Gillespie needs to take his orders straight from our Constitution.  He should direct his staff to use all the resources available to protect our lands and waters.  Drawing a new bullseye on DENR cannot achieve this mission. 


Monday, June 3, 2013

Why is Law Enforcement Profiling a Bad Thing at All Times?

"With all the power that a President has, the most important thing to bear in mind is this: You must not give power to a man unless, above everything else, he has character. Character is the most important qualification the President of the United States can have."
--Richard Nixon endorsing Barry Goldwater's presidential campaign in 1964.

Giving power to anyone to enforce laws on the basis of character is bad governance.  If the enforcer has a bad character, you have done nothing but empower rank prejudice.  Tricky Dick is but one example among hundreds which can be found.  Profiling is a threat to liberty in all circumstances.

Profiling is nothing more and nothing less than inferring unlawful character from appearances and opinion.  Character inference is then used to construct inferences about behavior and propensities.  If the propensities lead an enforcement official to believe that a person is intending to break the law then the enforcement official decides to take the next step.  The corruption is to use “character” to prevent the supposed violation by investigation and premature intervention.

A great fictional lawman of an earlier time had a term for this technique: “nip it Ange.  You got to nip it in the bid!”

Just as Barney Fife was the object of ridicule for his simplistic and autocratic methods, all of us should be revolted by profiling, not selectively but absolutely.  Count me in the camp that rejects profiling in all its forms.  Profiling is merely prejudice, cloaked in law.

So, let me be clear.  It was wrong and unlawful to scrutinize applications for 501(c)(3) status based upon keywords.  And so, I condemn the IRS decision to use the terms “tea party” and “patriot” to single out 501(c) (3) applications for extra scrutiny.  Just because you used those words in your name does not mean that the purpose of your group was to influence elections.  Wrong.  Nip it, Ange!  This was bad.  It should be stopped.  Those responsible should be held accountable.  Count me in!  Profiling is a pernicious evil and should be condemned.  Fundraising will tea-partying is no crime.

Now let’s talk about the law enforcement profiling that has impacted far more Americans’ civil liberties  for far longer: racial profiling and religious profiling.  North Carolina’s Republican Party is counting on the fact that profiling Democrats is perfectly legal when deciding whether they should be allowed to cast a vote in their newly-gerrymandered dollar store districts.  Those folks need to show their papers, especially the poors and those folks who were alive when FDR saved the country.  But hopefully, they recognize that profiling folks for their race and their religious beliefs is also despicable.  So where is their outrage?

   Driving while Hispanic is apparently a basis for being stopped in Alamance County, North Carolina.   Where is Congressman Issa’s outrage on this “profiling? What about Driving While Black?  No outrage left for that one, either Mr. Issa?  What about Flying while Muslim?  


Tuesday, May 21, 2013

Sharks versus Kings



“I went to fight the other night, and a hockey game broke out.”  --Rodney Dangerfield

Recently, the General Manager of the San Jose Sharks NHL franchise decided to question the call of the NHL in suspending one of his players.  The player in question hit an opponent in the head.  His opponent was injured to the point of missing the next game. The Sharks were fined $100,000. The Sharks won over the Los Angeles Kings in the next match. 

Here is an excerpt of his statement:

“As stated in the NHL's Player Safety video, Rule 48.1 says, "A hit resulting in contact with an opponent's head where the head is targeted and the principal point of contact is not permitted." Thus, with the use of the word "and", this rule clearly states that two elements must occur in order to violate the rule.”

Now the thing that strikes me about this statement is the language used by the Sharks GM in critiquing the decision of the NHL.  His defense appears to be that the blow was struck to the shoulder and then only incidentally knocked Stoll’s head.  You would think this was a summation to the jury and the athletes in question are vehicles in a collision.

Now we have come to expect this sort of behavior in the ranks of hockey, which is a full contact sport.  But the real question it raises for me is how close are we to promoting this behavior in all sports.  Are athletes just meat for the YouTube replay grinder?  Are we just enjoying their pain a little too much?

Do we want to teach our children to act like Sharks or Kings?  Do we want them to become injured in their mid-twenties or earlier?  Would it not be better if we told them that sports is for fun, not for fighting.

Who am I kidding.  Tonight’s goal fest will be nothing compared to earlier forms of sport, such as gouging.   I guess we are more civilized after all.