Saturday, April 27, 2013

Coal-Fired Cartels

"In the long run my observations have convinced me that some men, reasoning preposterously, first establish some conclusion in their minds which, either because of its being their own or because of their having received it from some person who has their entire confidence, impresses them so deeply that one finds it impossible ever to get it out of their heads. Such arguments in support of their fixed idea as they hit upon themselves or hear set forth by others, no matter how simple and stupid these may be, gain their instant acceptance and applause. On the other hand whatever is brought forward against it, however ingenious and conclusive, they receive with disdain or with hot rage — if indeed it does not make them ill. Beside themselves with passion, some of them would not be backward even about scheming to suppress and silence their adversaries."  --Galileo Galilei

In 1970, United States Senator Gaylord Nelson from Wisconsin celebrated an event entitled "Earth Day" on April 22.  There has been an earlier teach-in event in New York City that same year.  This past week, we celebrated yet another Earth Day.  But things have changed in our policy discussion over our ecological footprint.  The pollution cartels are now running our policy-making institutions.  In particular, the interests which mine coal and own coal-fired power production have produced a strong cartel with the assistance of state and federal laws and regulations. 

Cartels can flourish under direct government fiat, or by private enforcement by the cartel members.  Government regulation can help cartels along by creating barriers to entry for competitors even when the government does not directly create the cartel through licensing schemes.When the United States Congress ratified the Clean Air Act Amendments of 1977, they created a form of cartel through the New Source Review ("NSR") program.  While the goals of the NSR program are laudable and understandable, its side effects have been quite intractable.  In effect, existing power plants were allowed to continue operating with antiquated pollution control technology, while any new power plants had to meet stringent technological standards.  To build a new coal plant became far more expensive than just repairing  the old ones.

By making it much more expensive to build newer types of power plants, the holders of older permits and their suppliers could maintain a market advantage.  The cost of new controls created a barrier to market entry for new firms.  Technology prescription can have this effect in ways that other environmental control strategies may not, such as taxing pollution or setting performance standards.  Of course, any scheme which allows one group of users to avoid paying the tax or adopting the standard is creating a cartel.  This is usually referred to as "grandfathering" rather than "cartelling."

As with all cartels, pressure will build from the outside or the inside to break the cartel.  In the case of new source review, the pressure to break the cartel came from EPA in the form of costly litigation.  The industry claimed that it was entitled to rely on EPA's prior endorsement of its cartel arrangement-for more than a decade EPA had allowed firms to repair the grandfathered units so long as they did not exceed a cost threshold.  The result of this has been that a barrier to market entry for new forms of power has been created.

In addition to this, add the existing barrier posed by the organizations that license electrical distribution monopolies, including FERC and state Utilities Commissions.  The sad result is that new sources of energy are not attempting to compete in a free market, but begging for entry from a coal-fired cartel.  It is little wonder that the cartel feels its market power threatened and fights back hard.  Cartels usually do.

Friday, April 26, 2013

Climate Change Gag Rule

 "I think this is a brilliant solution. If your science gives you a result that you don't like, pass a law saying that the result is illegal. Problem solved."  --Stephen Colbert

Earlier this year, GOP legislators introduced a bill which fired sitting board and commission members before the end of their terms as well as stacking these boards with industry-friendly appointment slots.  The NC House and Senate  passed different versions of this bill.  The two bills were sent to an appointed  conference committee.  Conference Committees are supposed to act as negotiating bodies to resolve differences between two drafts of bills on the same subject.  In this case, the Conference Committee added in new language which serves to act as a gag rule for all state agencies on climate change planning and adaptation.  This provision was not in either bill.

In fact, six versions of the bill had been batted about the General Assembly over the past few months.  The climate change gag rule was added (at page three, lines 13-16) only in conference committee, not in the six separate, debated versions.   The gag rule provision reads:

“No State appropriations or departmental receipts shall be used by State agencies for the development, promotion, dissemination, or implementation of a statewide climate change action plan or adaptation strategy, unless such activities are specifically authorized by the General Assembly. This shall not prevent individual State agencies from addressing climate or weather-related issues or events that are within the scope of their existing agency duties and responsibilities.”

First, this bill is problematic because it goes beyond the budget power of the General Assembly to create a gag rule on executive branch agencies.  The General Assembly can certainly control state spending on climate change budget items. The right place to do that is in the budget bill by choosing by choosing not to fund those initiatives.  The General Assembly   had already enacted law in 2011 stating that the Legislative Commission on Climate Change's work was over and dissolving the Commission.   With no budget and no Commission, what was the General Assembly aiming to limit?  Some clues may be found in the broad language chosen for this provision.   

This language includes “departmental receipts” so it prevents state agencies from obtaining grants to do this work.  It also uses two undefined but broad terms “action plan” or “adaptation strategy.”  These terms are so broad as to include work of academic research or long range infrastructure planning.

This is a climate change gag rule in its effect.  This language will likely prevent agencies from doing internal, staff-level work on either climate change plans or adaptation. It would apply also to grant monies (departmental receipts), so it goes far beyond the budget of state appropriations from tax revenues.  

It also prohibits "promotion" and "dissemination." This would appear to prevent agencies such as the Division of Coastal Management from publishing climate change planning work already done.  Also it could be used by terminate the work of any state entity which is developing climate change adaptation planning, even university researchers.

UNC-CH has a Center that helps study issues related to adaptation to climate change. This Center is considered a national leader in studying issues related to adaptation to climate change.  NC State University is awarding degrees to candidates studying climate change science and adaptation policy. Their outstanding research faculty have also been landing grants to study climate change impacts on forestry and agriculture.  This type of grant funding helps public universities keep tuition low.  What about the research done and published by scientists working for state institutions planning for climate change?  How are they going to attract collaborators for illegal research.  

And how about long term plans for state infrastructure vulnerable to climate change?  NC DOT has to plan roads far into the future.  Will they be prevented from looking at climate change adaptation altogether?
DENR will have to take down its harmless  and helpful website.  Even North Carolina's climate science office  itself may run afoul of this provision.

This gag rule was slipped in to a bill at the last minute with no floor debate or committee vetting.  It is bad policy all the way around.  Once again, our state has become a laughingstock

Wednesday, April 17, 2013

Redistricting and Legislative Self-Interest

Drawing districts to favor preferred leaders rather than to represent the will of the people is a subversion of democratic process.  Decisions on redistricting should be made based on the principle of one person means one vote.

Historically gerrymandering in North Carolina was used to protect incumbents from democratic primary challenges.  North Carolina was part of the Solid South, with most officeholders for local and state office belonging to the Democratic Party from the 1870s through the 1960s.  Prof. Everett recounted the story of one such case as follows:

"At the time, the legislature was controlled by the Democrats, who in this plan apparently had gerrymandered the Fourth Congressional District to protect incumbent Representative Harold Cooley, one of North Carolina's most senior members of Congress and the chair of an important committee. Cooley was facing a likely challenge in the Democratic primary from William A. Creech, who had been Chief Counsel for Senator Sam Ervin's Subcommittee on Constitutional Rights. Creech had always resided in Johnston County, which for many years had been in the same district with Nash County, where Cooley resided. The redistricting plan removed Johnston County from the Fourth District and thereby created an obvious barrier to Creech's candidacy."

Prof. Everett won the challenge, but lost the case.  The Court declined to enjoin the election under the district that it had declared unconstitutional because there was not enough time before the primaries to allow the change.  Prof. Everett opined that this result was a disappointing result, but a frequent result of challenges to gerrymanders nonetheless.

Prof. Everett proposed that redistricting needed to be done by commissions and not legislatures.  He reasoned that legislators have too much self-interest to to fairly decide on district lines and would sacrifice the good of voters in order to promote their self-interest.

Prof. Everett was right about this, as he was about so many things.  We miss his wisdom.

Tuesday, April 16, 2013

North Carolina's Gerrymandered Assembly

In democracy, we believe that power derives from the people who either exercise their power directly or through leaders in free and fair elections.  One of the fundamental tenets of democracy is that people choose their leaders by voting.  Voters did not choose the North Carolina General Assembly so much as the North Carolina General Assembly's leaders chose their voters.  When leaders choose their voters, they usually do so by drawing on two types of tactics: voter suppression and gerrymandering.  The irony of GOP Gerrymandering in North Carolina is not lost on the Duke Faculty.

The term "gerrymander" was the term coined for a district carved in Massachusetts to favor Elbridge Gerry's Democratic-Republican Party over the Federalists.  The district was drawn to pick the voters and its bizarre shape led to the following political cartoon of the Gerry-Mander:

This beast's shape presage's its actual appetites.  Federalists objected in their newspapers to this affront to democracy.  While real salamanders are innocent amphibians, early medieval writers had ascribed to them magical qualities as beasts that lived on fire.  The Gerry Mander was thus not a lowly amphibian, but more like a fire-breathing dragon, threatening to devour democracy.

When complaining about the evils of gerrymandering for decades when they were out of control, the North Carolina GOP found a sympathetic ear among law professors, especially the esteemed Professor Robinson O. Everett.  Professor Everett successfully argued before the United States Supreme Court that North Carolina's General Assembly had engaged in unlawful gerrymandering by creating racial preferences in its districts to create a congressional district with a majority of minority voters.  Everett's victory was a high water mark of jurisprudence against gerrymandering.

Twenty years later, the NC GOP found itself in charge of redistricting, thanks to the work of then GOP Chairman Tom Fetzer.

So now we have the Fetzer-Mander!

Monday, April 15, 2013

Penne Rigate w/ Broccoli and Capers

1/2 lb. Penne Rigate Pasta
1/2 lb. Broccoli florets
1 T. Olive Oil
2 garlic cloves, sliced or diced
1 T. Capers, drained
1 t. red pepper flakes
1 T. Pecorino Romano cheese
Salt and Pepper to Taste

Boil the pasta in salted water (to taste like the sea) per directions for al dente pasta.  Heat olive oil with garlic, capers and red pepper over med. low heat.  With thirty seconds left on cooking time, add broccoli to blanch.  Drain pasta and broccoli and add to saucepan with capers.  Mix well and adjust seasoning with salt and black pepper.  Just prior to serving, add the cheese and toss.  Enjoy!

Who has been in the Medicare Cookie Jar?

First, the facts are clear that President Obama's administration negotiated with Congress, as well as lobbyists for the Insurance industry, pharmaceutical companies and doctors to create the bill that became the Affordable Care Act.  President Obama further endorsed this approach to providing coverage by signing it into law.  Congress passed it and the President signed it., therefore it became law.   If there is credit or blame for the law, it goes with Congress and the President.

Congress is given possession and control over the "cookie jar," by our Constitution.  Congress has the power to spend and the power to tax.  The President has the power to execute the laws that Congress enacts.  Congress opened the cookie jar by passing the act: President Obama signed the bill.  This is the rule of law, not "caught stealing."

Since healthcare costs have been rising faster than any other aspect of our economy for decades, it should come as little surprise that the people who have been making that money were a bit sore.  That is to say, when you have been investing in a business that makes more and more money each and every year, you have every reason to be upset when a law is passed that threatens to reduce that return.  In fact, the Insurance industry gave $86 million to the U.S. Chamber of Commerce to fight the law by any means necessary.  To allow them to do this without staying at the negotiating table, they funneled the money secretly through the U.S Chamber of Commerce, rather than spending it themselves.  I say this not to insult the industry for being lying weasels, but rather to point out that they had a lot to lose from the United States Government managing to solve the health care cost crisis which it alone seems to suffer among industrialized countries.

We already ration care through the health insurance industry.  That results in many people failing to receive any primary care.  This means that routine infections turn into life-threatening conditions.

The Broccoli Horrible?

A "horrible" is a form of argument which uses a logical fallacy to create an absurdly awful result. 

Broccoli is a cruciferous vegetable with a reputation for foul taste among those with bland palates.

The quintessential "broccoli horrible" was used by conservative commentators as a critique of the constitutionality of the Affordable Care Act a/k/a/ "Obamacare."  The critique was a classic slippery slope argument: approving a law where the federal government may require that people do X, means that later the people can be required to do Y. In this case, the "individual mandate" provisions of the ACA required all individuals to have a minimum level of health insurance or pay a penalty.  The argument ran that this requirement infringed personal liberty interests protected by the U.S. Constitution and represented a dangerous trend (see "Small Change Tolerance" discussed by Eugene Volokh at  The end result was that the Federal Government could force people to buy broccoli.  

The irony of this argument is hard to overstate.  All taxpayers in the United States are already forced to buy food ingredients.  The policy of the Untied States Government since the Great Depression has been to support prices in order to keep farmers afloat.  During the 1970s, the nature of those payments changed with the policy directive of Dr. Earl Butz, an Agricultural Economist from Purdue who served as Secretary of Agriculture under Richard Nixon.  Dr. Butz promoted corn production in surplus of economic demand by having the government support overproduction with subsidy payments. 

The subsidized "commodities" are not actual food, but do serve as food ingredients.  Chief among these is feed corn.  While the United States taxpayers have paid more than $77 billion to corn farmers over the past 15 years, the corn they grow is basically inedible "feed corn."  This feed corn is in turn made into fuel, corn syrup and CAFO meat.  We are already living under a "Corn Horrible," an experiment on the health of my generation and those following mine. The Corn Horrible experiment has not been a success for the health of our nation's people, its air or its waters.  It has made fortunes for some large agribusinesses and a small army of lobbyists. 

If we turned the Farm Bill funds away from subsidizing large agribusiness and towards consumer choice, more people could afford to buy the food they want to eat.  While the price of soda has decreased in real dollars since the 1970s, the price of fruits and vegetables has increased.  High consumption of soda is a risk factor in obesity and diabetes, two of the diseases driving up health care costs.  The Corn Horrible is thus driving us into health care bankruptcy 

Aside from this, there is the problem of broccoli's taste reputation.  As the New Yorker blog pointed out, the members of the SCOTUS primarily proved that they did not know how to cook broccoli.  Overcooked mushy broccoli or crudite broccoli seemed to be the only options they considered.  Broccoli can stand on its own if folks know how to prepare it and serve it.  Bad cafeterias and cheap grocery-store "veggie platters" are not the mascots we need.

So this blog is dedicated to two things: rants and recipes.

Bon Apetit