How Justice Scalia paved the way for Trump’s assault on the rule of law
Three words: “the unitary executive.”

By Ian Millhiser Feb 14, 2020

Supreme Court Associate Justice Antonin Scalia pauses as he addresses a Northern Virginia Technology Council breakfast on December 13, 2006, in McLean, Virginia. Alex Wong/Getty Images

The past couple of weeks began a new phase for the Trump administration and, potentially, for the institution of the presidency.

Emboldened by his acquittal in a majority-Republican Senate, President Trump spent the past week firing officials who testified against him in impeachment proceedings — part of a rash of retaliation that my colleague Zack Beauchamp labeled “Trump’s purge.”

Then Trump sent a tweet denouncing the Justice Department’s suggestion that Roger Stone, a Trump ally convicted of making false statements, obstruction, and witness tampering, should receive a stiff sentence of seven to nine years. The Justice Department swiftly changed its recommendation, over the apparent protest of four career prosecutors who withdrew from the case. At least one of these prosecutors appears to have resigned entirely from the DOJ.

Attorney General William Barr, for what it’s worth, claims that “the president has never asked me to do anything in a criminal case.” But Trump credited his attorney general for the swift turnaround in the Stone case.

Congratulations to Attorney General Bill Barr for taking charge of a case that was totally out of control and perhaps should not have even been brought. Evidence now clearly shows that the Mueller Scam was improperly brought & tainted. Even Bob Mueller lied to Congress!— Donald J. Trump (@realDonaldTrump) February 12, 2020

The Justice Department’s swift compliance with Trump’s wishes was widely condemned by DOJ alumni, who spoke of why it is important that the nation’s prosecutorial arm retain a degree of independence from its political leader. As Joyce White Vance, a former United States attorney, wrote in Time, if Trump “can corrupt the criminal justice system for the benefit of his friends, there is no reason he cannot also use it to retaliate against those he views as enemies.”

In this sense, the Justice Department is fundamentally different from other federal agencies. While those agencies can wield tremendous power over federal policy, DOJ is tasked with the awesome power to prosecute crimes — and with it, the power to ruin the lives of a president’s political enemies.

For Barr, however, the idea that the Justice Department would be subservient to the president isn’t simply acceptable; it is a constitutional necessity. (Although Barr has also claimed he would not bring a criminal investigation solely because the president wished to investigate a “political opponent.”)

Last November, Barr spoke to the conservative Federalist Society’s annual lawyers convention. His speech focused on the proper role of the presidency, and on the theory of the “unitary executive.” As Barr described that theory, which he enthusiastically supports, every power exercised by the executive branch “must be exercised under the President’s supervision.”

That no one in the executive branch should be independent of the president, and that such independence is in fact constitutionally illegitimate, is one of the core beliefs pushed by conservative legal groups such as the Federalist Society.

More than three decades ago, in Morrison v. Olson (1988), Justice Antonin Scalia published a lonely dissent articulating this theory of the unitary executive. Though no other justice joined Scalia’s opinion in 1988, the Morrison dissent gained a cult following in subsequent years. That cult now includes some of the most powerful people in the country — including Barr and several current members of the Supreme Court.

Indeed, the Supreme Court will hear a case early next month that could make Scalia’s theory of the unitary executive the law of the land.

If you want to understand Barr’s approach to his job — and his disregard for longstanding norms of prosecutorial independence — you have to understand the theory of the unitary executive. For Barr, eliminating such independence isn’t simply an act of partisan loyalty; it is a constitutional necessity.
The unitary executive, explained

The issues at the heart of Morrison are, in many important ways, similar to the issues underlying Trump’s interference in the Stone prosecution.

Morrison upheld a 1978 law providing for the appointment of an “independent counsel” to investigate — and potentially prosecute — high-level government officials accused of committing a federal crime (the independent counsel law expired in 1999). In this case, an independent counsel was appointed to investigate whether then-Assistant Attorney General Ted Olson lied during a congressional hearing.

The counsel eventually decided not to pursue charges against Olson, and Olson would go on to serve as solicitor general of the United States.

Under the 1978 law upheld in Morrison, the attorney general would conduct a preliminary investigation to determine if there was sufficient reason to appoint an independent counsel, but the actual person appointed to this role was decided by federal judges. Once an independent counsel was appointed, they could be removed by the attorney general, but only “for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel’s duties.”

Thus, the independent counsel enjoyed a great deal of independence from both the president and the president’s appointees. Neither the president nor the attorney general could remove an independent counsel simply because they disapproved of the counsel’s work.

This arrangement, according to Scalia’s lonely dissent, was not allowed.

The Constitution provides that “the executive power shall be vested in a President of the United States of America.” For Scalia, “this does not mean some of the executive power, but all of the executive power.” Thus, because the power to investigate crimes and bring prosecutions is entrusted to the executive branch, there cannot be a federal prosecutor who is not fully accountable either to the president or to some lower official that can be fired at will by the president.

The question of who has the power to fire prosecutors, and for what reason, may seem esoteric, but it’s difficult to exaggerate the passion Scalia’s Morrison dissent inspired among many of the Federalist Society’s leading lights. When future Justice Brett Kavanaugh was asked, in 2016, to name a case that he would like to overrule, Kavanaugh said that he wanted to “put the final nail in” Morrison’s coffin.

Barr, meanwhile, spoke of the unitary executive during his Federalist Society address as if it is the only legitimate way to read the Constitution — and as if anyone who doubts it is acting in bad faith:

One of the more amusing aspects of modern progressive polemic is their breathless attacks on the “unitary executive theory.” They portray this as some new-fangled “theory” to justify Executive power of sweeping scope. In reality, the idea of the unitary executive does not go so much to the breadth of Presidential power. Rather, the idea is that, whatever the Executive powers may be, they must be exercised under the President’s supervision. This is not “new,” and it is not a “theory.” It is a description of what the Framers unquestionably did in Article II of the Constitution.

But the case against the unitary executive is not “some new-fangled ‘theory’” either, and it is not an attack that can only be found in “modern progressive polemic.” Morrison was a 7-1 decision authored by Chief Justice William Rehnquist, who spent many decades as the intellectual leader of the Supreme Court’s conservative wing. As recently as 1988, the theory of the unitary executive was a fringe idea on the nation’s highest court.

The unitary executive’s more recent popularity is a testament to Scalia’s power to shape conservative opinion, and of the power the Federalist Society has to popularize ideas that were once viewed as well outside the legal mainstream. But Barr is simply wrong that the unitary executive theory “unquestionably” describes the framers’ vision.

The truth is that the framers themselves had confused and often contradictory views about what the Constitution requires.
The case against the unitary executive

One other person who appeared to reject the unitary executive theory was James Madison. In a 1789 debate about who should be able to remove the comptroller of the Treasury, Madison suggested that some federal officials “should not hold [their] office at the pleasure of the Executive branch of the government.”

Similarly, Alexander Hamilton suggested in the Federalist Papers that the Senate would need to acquiesce in the president’s decision to remove a senior executive branch official. “The consent of that body would be necessary to displace as well as to appoint,” he wrote in Federalist 77.

The point is not that these statements should be taken as gospel — Hamilton’s claim that the Senate could prevent the president from firing top officials is soundly rejected today, and Hamilton himself later abandoned this view. Rather, the point is that the Constitution is sufficiently unclear about whether certain officials can act independently of the president that two of the founding generation’s leading figures disagreed with Scalia and Barr’s approach.

As Fordham law professor Jed Shugerman explained in a recent article, Scalia’s suggestion that the power to investigate crimes and bring prosecutions is reserved to the executive branch is hard to square with early American history. Indeed, for much of the nation’s history, the power to bring prosecutions wasn’t even limited to the government. As Shugerman writes, “for much of English and American history, most prosecution was not an executive function at all because it was a private enterprise.”

Indeed, prosecutions led by lawyers in private practice were the norm until long after the Constitution was ratified. “The vast majority of American prosecutions were still private through the mid-nineteenth century,” Shugerman explains, “as Allen Steinberg and many other historians have demonstrated.”

Similarly, the Senate’s draft of the Judiciary Act of 1789 gave federal district judges — not the president — the power to appoint federal prosecutors. And the final version of that law allowed many federal law enforcement officers to be removed by the judiciary. Current federal law permits federal district judges to appoint interim US attorneys (though only after a temporary appointee named by the attorney general has served for 120 days).

Federal judges occasionally conducted prosecutions during the early days of the American republic. “The federal judges themselves led what appeared to be prosecutions during the Whiskey Rebellion of 1794,” Shugerman writes, “and initiated prosecutions under the Alien and Sedition Acts by convening and presiding over grand juries.”

In the face of this evidence, there are also profound practical reasons to reject the unitary executive theory. If Scalia and Barr’s theory prevails, for example, the president would gain the power to fire Federal Reserve governors at will. That would enable the president to pressure the Fed to juice up the economy during an election year, potentially ensuring the president’s reelection.

The facts of Morrison also highlight why prosecutorial independence is sometimes desirable. That case involved an investigation into one of the seniormost officials within the Justice Department. A rank-and-file prosecutor would understandably fear the professional consequences of leading such an investigation — for the same reason that I would be reluctant to conduct an investigation into one of Vox Media’s top executives.

Yet, regardless of the arguments against the unitary executive, it is clear that Barr does not buy them. Indeed, he rejects them so soundly that he denies that any other reading of the Constitution is legitimate. He even appears to reject the idea that informal norms should constrain the president’s interference with the Justice Department, even if DOJ remains formally subject to presidential authority.

And that means that if Trump tells him to jump, Barr will answer, “How high?”

SCALIA ALSO ENDORSED THE RIGHT OF THE STATE TO EMINENT DOMAIN
WRITING THE MAJORITY OPINION FOR SCOTUS
IT IS ALLOWING BIG OIL TO DOMINATE OVER LOCAL RESIDENTS
A VERY NON LIBERTARIAN THING TO DO

The false promise of “renewable natural gas”

It’s no substitute for shifting to clean electricity.

By David Roberts@drvoxdavid@vox.com Feb 14, 2020

Natural gas producers in front of a biodigester. Shutterstock

To stay in line with the targets laid out in the Paris climate agreement, the US needs to reach net-zero carbon emissions by 2050, known as “deep decarbonization.” Virtually every credible study on deep decarbonization agrees on the basics of a strategy to get there.

The heart of the strategy is cleaning up the power grid, which is currently responsible for 28 percent of US greenhouse gas (GHG) emissions. It must be rapidly transitioned to zero-carbon sources like renewables, hydro, and nuclear.

Concurrently, two of the biggest sources of GHGs, transportation and buildings, must switch over to run on that zero-carbon power. The transportation system (29 percent of US emissions) is almost entirely powered by gasoline and diesel; it must transition to electric vehicles to the extent possible. And buildings (also 29 percent of US emissions) are now frequently heated and cooled by oil or, more commonly, by natural gas; they must transition to electric heating and cooling to the extent possible.

This strategy — for which I use the shorthand “electrify everything!” — is beginning to catch on, especially in California, which is always something of a preview of broader trends to come. In a relatively short span of time, a robust “all-electric movement” has emerged, as dozens of towns and cities take steps to encourage all-electric construction in new buildings.

Natural gas utilities do not like this movement one bit. The more all-electric buildings there are, the fewer natural gas ratepayers there are. An all-electric future inevitably involves the obsolescence, or at least the substantial diminution, of natural gas utilities. Naturally, they are fighting back furiously, with astroturf groups, PR campaigns, and lobbying at the local level.

Their main argument — playing out with particular intensity in California — has to do with “renewable natural gas” (RNG), an industry term for methane captured from biogenic (organic) waste at landfills, livestock operations, farms, and sewage treatment facilities. (It is sometimes called “biogas” or “biomethane.”)

A biogas facility next to a cornfield. Shutterstock

RNG can, depending on feedstock and circumstances, be low or even zero-carbon. Utilities argue that ramping up the production of RNG and blending it with normal natural gas in pipelines can reduce GHGs faster and cheaper than electrifying buildings. By pursuing electrification, they say, regulators are pushing unnecessary cost hikes onto consumers.

It would be nice for the utilities if this were true. But it’s not. RNG is not as low-carbon as the industry claims and its local air and water impacts are concentrated in vulnerable communities. Even if it were low-carbon and equitable, there simply isn’t enough of it to substitute for more than a small fraction of natural gas. And even if it were low-carbon, equitable, and abundant, it still wouldn’t be an excuse to expand natural gas infrastructure or slow electrification.

It isn’t a close call. The research is clear: Especially in a temperate climate like California, RNG is not a viable alternative for decarbonizing buildings. It is a desperate bid by natural gas utilities to delay their inevitable decline. Policymakers would be foolish to fall for it.

That’s the short version. Now let’s look at how the battle is playing out, with an emphasis on California, which is one of the country’s top natural gas-consuming states — and a state with a goal of going net-carbon-zero by 2050.
Electrification is gaining serious momentum in California

The expert chorus supporting electrification has been getting louder.

Energy efficiency and electrification are recommended for the building sector in the United States Mid-Century Strategy for Deep Decarbonization, developed under the Obama administration. They are recommended throughout the work of the Deep Decarbonization Pathways Project (DDPP) on various countries, including the US. (DDPP also did a pathways analysis for my home state of Washington, at Gov. Jay Inslee’s behest; it contains the same recommendations.)

The California Energy Commission (CEC) has done a report on deep decarbonization and a (recently updated) extensive report on the future of the state’s natural gas network. In both reports, it finds that electrification is the cheapest option for decarbonizing buildings.

In response to this chorus, 26 California cities have now either passed an ordinance phasing out natural gas in new building construction or updated building codes to encourage all-electric construction. Dozens more cities are expected to follow suit this year. Across the state, builders and real estate developers are being pressured by their investors about “carbon risk,” the possibility of building fossil fuel-reliant assets that will be unable to find buyers.

Perhaps most significantly, in January, the California Public Utilities Commission (CPUC) announced a new proceeding to begin the process of weaning the state off of natural gas, including consideration of a just transition to avoid safety issues and stranded costs.

The new zero-energy headquarters building of the 

California Air Resources Board. CARB
Natural gas utilities are freaking out and getting shady

All this momentum has thoroughly freaked out the Southern California Gas Company, the nation’s largest gas utility, serving 5.7 million customers in Southern and Central California. SoCalGas makes more yearly revenue than any other utility in the nation, and of its $2.9 billion in revenue in 2018, $2.25 billion, almost 80 percent, came from residential customers. All-electric residential construction would crush it.

Monopoly natural gas utilities run the same way monopoly electricity utilities do. They don’t make money on the sale of gas. Rather, they charge a rate for gas that is meant to cover their costs, the costs of new investments in natural gas infrastructure, and a healthy fixed rate of return on those investments. In other words, they make profits by building stuff. Naturally, they want to build more stuff.

But what they are facing is a steady loss of demand, as more and more customers opt out of the natural gas system in favor of the grid. That will leave fewer and fewer customers paying higher and higher rates just to maintain the existing pipeline infrastructure, with little room left for new investments.

This is a disaster in the offing for SoCalGas and its owner, Sempra Energy. A few years ago, a new nonprofit was born: Californians for Balanced Energy Solutions (C4Bes). It began running ads opposing a natural gas phaseout and lobbying local lawmakers across the state, using apocalyptic messaging about the cost to consumers, recruiting local signatories for petitions against electrification. In March 2017, it had the unbridled chutzpah to ask the CPUC to make it an official party in the proceeding regarding the future of natural gas in the state.

That prompted the Sierra Club to point out, in a filing to the CPUC (replete with backing documents and leaked emails), that C4Bes is an astroturf group, a lobbying effort masquerading as a nonprofit. It’s a creation of SoCalGas, using talking points written by SoCalGas to organize opposition to municipal efforts that would negatively impact SoCalGas. It should not be posing as an independent party in a regulatory proceeding.

Finally, after months of parrying and delaying regulators, rather than face discovery, which would open up its books, C4Bes elected in January 2019 to withdraw from the proceeding. In May 2019, the Public Advocates Office, a consumer watchdog within the CPUC, determined that SoCalGas had been using sleazy tactics, including, reports KQED, “lying to regulators, undermining efficiency codes and standards, and ‘astroturfing’: funding a seemingly independent advocacy group with ratepayer money.” It recommended that CPUC sanction the utility.

Michael Boccadoro, head of Dairy Cares, an advocacy group for animal agriculture in California, was originally on the board of C4Bes until he saw their tactics up close — telling homeowners that government agents would be ripping out their gas stoves soon, crematoria that would no longer be able to cremate bodies, and Asian restaurants that have to give up their woks. “It’s pretty misleading what they’re trying to do,” he says, “and the story they’re out there telling. It seems like a desperate action.” He resigned from the board last year.

(For more on this, see scathing stories from Susie Cagle at the Guardian and Michael Hiltzik at the LA Times, along with an LA Times editorial.)

From a presentation to city council in Brawley, California,

 February 2019. Brawley

C4Bes withdrew from the proceeding, but it is still active, still out telling municipal officials horror stories about electrification. And it is not alone. In the Pacific Northwest, a coalition of gas utilities has launched a $1 million PR effort to push back against electrification in the region. “Partners for Energy Progress” will use much of the same messaging that C4Bes is using.

That means two things: raising fears about the costs of a transition (despite a broad consensus that electrification will save consumers money, as we will see later) and stressing consumer “choice.” They know from their research that they can’t get away with simply opposing decarbonization. They need an “all of the above” message, one that offers consumers a choice of different decarbonization pathways.

That’s the role RNG is playing in this debate: The natural gas industry is proposing it as a choice, an alternate route to decarbonization.

Is it?

There isn’t enough RNG to go around

The main question facing RNG is simple: Is there enough of it to decarbonize existing uses of natural gas, like buildings? Several states have looked into this closely. The answer, in a word, is no.

In its deep decarbonization pathways study, the CEC concluded that, if California had access to its population-weighted share of total US bioenergy output, “there appears to be insufficient biomethane to displace the necessary amount of building and industry fossil natural gas consumption to meet the state’s long-term climate goals.”

UC Davis also did a study on the potential of RNG in California. It found that, all told, about 82 billion cubic feet a year (bcf/y) of biomethane sources are “attractive for investment,” taking into account state and federal incentives. By way of comparison, in 2017, California consumed about 2,110 bcf/y of natural gas. So under the most optimistic assumptions, RNG could replace 4.1 percent of California’s gas demand (1.6 percent on the low end of estimates).

What about RNG for transportation, another idea that the natural gas industry has long supported? A 2017 report from the Union of Concerned Scientists showed that it would require almost the entire country’s RNG potential to replace diesel fuel alone in California.

In 2013, the National Renewable Energy Laboratory (NREL) concluded that the total potential for biogas in the US (excluding energy crops) is about 431 trillion BTUs. In 2015, California used about 1.6 quadrillion BTUs in its buildings. So if the entire country’s biogas potential were devoted to California buildings and nothing else, it would replace about a quarter of the gas used.

Long story short: There literally isn’t enough RNG in the US to decarbonize California buildings.


A Washington State University study done for the Washington Department of Commerce found something similar for that state: “adequate opportunities exist for RNG production equivalent to 3 percent to 5 percent of current natural gas consumption in Washington.”

A study by the Oregon Department of Energy found that if the state maximized its domestic resources, it could replace between 10 and 20 percent of its natural gas use with RNG.

Finally, a more optimistic study by the gas industry itself found that, if RNG is combined with synthetic natural gas (SNG) made from electrolyzed hydrogen and captured carbon, it could replace 6 to 13 percent of the US demand for pipeline gas by 2040.

There is no credible study anywhere claiming that RNG can fully decarbonize the natural gas system, by California’s 2045 deadline or ever.
RNG is extremely costly compared to alternatives

Gas utilities are proposing to increase RNG in their pipelines and to charge their customers for the extra expense through rate hikes. SoCalGas has pledged 20 percent RNG by 2030 (it proposes to raise rates 30 percent between 2018 and 2022). In the Pacific Northwest, NW Natural, a large gas utility in Oregon, has pledged 30 percent emissions reductions from 2015 levels by 2035 (it proposes to hike rates by $2.50 to $3 a month per customer).

While RNG is a promising development and may be useful in some sectors (see below), there is no justification for blending it in pipelines as a way to decarbonize the building sector. For buildings, electric alternatives are available and cheaper.

An electric heat pump, doing its thing. Shutterstock

Before demonstrating that, it’s worth addressing a particular study that gas utilities and their allies like to cite. It was done by research consultancy Navigant at the behest of SoCalGas. It selects the highest possible estimates of electrification costs and the lowest possible estimates of RNG costs, ignores pipeline leaks, ignores local health and equity impacts, and ignores the sustainability of RNG feedstocks.

But more importantly, it compares the total GHG reductions of RNG blended in the natural gas supply (which would marginally reduce the emissions of all natural gas uses in all sectors) with reductions through electrification in the building sector alone. That’s not an apples-to-apples comparison. The question is not the best way to get a third of the way to zero by 2030, as the study does; it’s the best way to get all the way to zero.

As we’ve seen, while natural gas supply might be partially decarbonized with RNG (say, 15 percent, being maximally generous), there is not enough RNG to get it to net zero, which is the ultimate destination. There’s no point going down a pathway that ends in a cul de sac in a few years; there’s no time.

Other, less biased studies look worse for RNG.

A deep decarbonization study for California done by Energy & Environmental Economics (E3) found that electrification was the most predictable and cost-effective way to decarbonize buildings, given limits on RNG supply.

In a 2017 report examining California’s program of supportive tariffs for bioenergy (from landfills, ag operations, and forest wastes), the CPUC observed that the cost of the tariffs is “disproportionately high compared with other renewable procurement options” and that there is “no indication of market transformation” that might bring costs down in the future.

“Digesters are steel and cement, and some plastic,” says Boccadoro. “Those are not going to come down [in price]; they’re going to continue to increase.” What’s more, the easiest and most suitable sites for biomethane capture are developed first, which means projects become more difficult and expensive as time progresses — the opposite of economies of scale.

Another E3 study on the future of natural gas distribution in California found that, even with “aggressive technology learning,” the RNG needed to decarbonize the state’s natural gas system would be both wildly expensive and insufficient. It would have to be supplemented by heroic amounts of hydrogen and synthetic natural gas from out of state.E3

If RNG (or SNG) comes from out of state, then it is out of state where the emission reduction occurs. “We keep claiming [RNG] is going to ‘decarbonize’ the gas system,” Boccadoro says, “but it doesn’t really decarbonize the gas that’s being burned. There’s some offset occurring somewhere else, and when that offset occurs outside of California, it doesn’t help reduce our emissions here in California.”

What’s more, shifting to RNG (and SNG) would radically drive up gas costs. No policymaker or regulator in their right mind is going to ask a shrinking group of natural gas ratepayers to pay these exorbitant costs. “I represent some of the largest gas users in the state,” Boccadoro says. “We can’t afford to pay seven times what our competition is paying for natural gas.”


Notably, the study also found that in all scenarios, high and low electrification, total gas “throughput” declined. There is no decarbonization scenario where natural gas use increases.

Another more recent E3 study looked at the economics of residential building electrification in California and found that it would represent a savings, not a cost, relative to the status quo. For new construction, an all-electric home saves between $130 and $540 a year relative to one that burns gas. Single-family homes that retrofit from natural gas to all-electric save between $10 and $60 a month on energy bills. And those savings increase over time as electricity gets cheaper and cleaner and natural gas rates continue rising.

A Synapse Energy study found that even though electric heat pumps still cost more than natural gas furnaces, for new construction, opting for a heat pump saves $1,500 up front, thanks to the avoided costs of plumbing the property for gas.

The Rocky Mountain Institute did a report on the economics of all-electric, zero-net-energy homes, which are already far more favorable than widely understood. In San Francisco, such homes pay their extra upfront costs back within eight years.

To summarize: decarbonizing buildings with electrification saves homeowners and developers money, with savings rising over time; decarbonizing buildings with RNG costs ratepayers money, with costs rising over time.

And that’s just costs. There are other impacts of RNG to consider.

RNG exacerbates air pollution problems

Once it is captured from organic sources and injected into pipelines, RNG is chemically identical to natural gas. Methane is methane. It has all the same effects when leaked or combusted.

Methane is a potent greenhouse gas — 28 to 36 times more potent than CO2 over 100 years — and represents 9 percent of California’s total GHG emissions. It is also a local air pollutant.

Among other things, it pollutes indoor air when used for cooking. A 2017 CARB study found that “cooking emissions, especially from gas stoves, have been associated with increased respiratory disease.” A raft of peer-reviewed research (see here and here) shows that cooking with gas elevates risk for those in the home, especially for vulnerable populations like children. As many as 12 million Californians are exposed.

Respiratory symptoms were more common in children exposed to a gas stove. "Respiratory Symptoms in Children and Indoor Exposure to Nitrogen Dioxide and Gas Stoves" | American Journal of Respiratory and Critical Care Medicine https://t.co/ny5QzQtNeX— Shelly L Miller (@ShellyMBoulder) August 8, 2018

The natural gas industry has pushed for RNG to be used in heavy trucks in place of diesel, but a 2012 study found that, if the leakage rate in natural gas pipelines is any greater than 1.4 percent, the climate benefits of switching from diesel to RNG are negated. A recent literature review found that the leakage rate in California is somewhere between 2.4 and 4.3 percent.

Even if there were no leakage, the combustion of methane in a vehicle emits carbon dioxide, carbon monoxide, and nitrogen oxides.

RNG is also produced by sources that are themselves big polluters. Despite what the rosy term “renewable” might suggest, the CEC found that the state’s two biggest sources of biogas are landfills and manure from factory farms.

It’s better to capture some of the gas from landfills and factory farms than to let it escape into the atmosphere. (Boccadoro says manure methane emissions in California have declined by 25 percent in the last four years.) But it’s odd to think of those polluting sources as “renewable.” Many people hope they will decline over time, as Americans generate less food waste and eat a healthier diet with less red meat and dairy.

Small farms, with pasture-grazed cows, generate no appreciable methane. It’s the big, industrial dairy farms that are responsible for 55 percent of the state’s methane emissions. As the California Department of Food and Agriculture (CDFA) has handed out subsidies for biodigesters, the average herd size of a recipient is 7,430 head. By way of comparison, average herd size in Wisconsin, the second-largest dairy state, is 134 head. These are huge operations. And they must be, to justify capturing methane; a 2018 study found that 3,000 head is the minimum herd size needed to make anaerobic digestion economic.

Anaerobic digesters also leak methane, at a rate of between 2 and 3 percent, adding to their lifecycle GHGs in a way that is rarely captured in models.

For now at least, to the extent that decarbonization is linked to RNG, it is reliant on a steady supply of landfills and factory farms, which produce the very sort of pollution that electrification eliminates. A study last year in Environmental Science & Technology summed up the difference for California:


Compared with business-as-usual levels, a decarbonization pathway that focuses on electrification and clean renewable energy is estimated to reduce concentrations of fine particulate matter (PM2.5) by 18–37% in major metropolitan areas of California and subsequently avoid about 12,100 (9,600–14,600) premature deaths. In contrast, only a quarter of such health cobenefits, i.e., 2,800 (2,300–3,400) avoided deaths, can be achieved through a pathway focusing more on combustible renewable fuels.

The sun and wind are healthier sources of energy than trash and shit.

Renewable ... ish. Wikimedia
RNG impacts are concentrated in vulnerable communities

The industrial dairy farms that produce RNG are mostly located in the San Joaquin Valley, one of the poorest areas of the state, where African Americans, Latinos, and Native Americans make up the majority of the population. It is home to the nation’s worst air pollution, the highest rate of asthma in children, and nitrate-laced drinking water.

Livestock operations are the top source of ozone-causing pollutants in the area, a major source of nitrate pollution, and a major source of ammonia emissions, which cause eutrophication of surface water and fine particulate pollution. They also release persistent odors that cause headaches.


Residents of the area have been pushing the state government to stop subsidizing harmful agriculture and livestock management and start subsidizing regenerative and other climate-friendly agricultural practices. But the state still devotes a far smaller amount to those practices than to dairy digesters — $21.6 million versus $72.4 million.

California’s pioneering law SB 1383 requires that the state reduce methane pollution from organic waste 40 percent by 2030; it does not require that it capture 40 percent of methane. It can just as easily, often less expensively, reduce the waste streams that produce the methane. But if RNG is made into a valuable commodity, it will bias the industry (and the lawmakers it lobbies) to seek expanded dairy operations.

Residents of the San Joaquin Valley reasonably worry that a major new source of revenue for industrial dairy farms will help support an otherwise economically marginal industry, perhaps even encourage its growth, and that their children will pay the hidden costs.
RNG is worth pursuing, but not as an alternative to electrification

None of the above should be taken as arguing against RNG, provided that protections for vulnerable communities are built in. As long as there are landfills, giant manure ponds, agriculture and forestry waste, and sewage treatment plants off-gassing methane into the atmosphere, it makes sense to capture as much of that methane as possible and use it. It’s better than fracking it out of the ground.

And there are plenty of good ways to put RNG to use.

I’ve mostly focused on California in this post, but it’s worth pointing out that in other, less temperate states, the electricity system faces higher seasonal peaks, as everyone turns on heaters or air conditioners at once. Adding both cars and all remaining buildings to already congested grids could threaten their reliability. Many states, like the densely populated states of the Northeast US, will need much longer than California to prepare, to build their grids out and learn how to manage all that new electricity demand. Until then, RNG could work in the background to lower the carbon intensity of natural gas.

And it may be that there are some sectors of the economy that resist electrification and still need combustible liquid fuels even through 2050 — so-called “harder-to-abate” sectors like shipping, aviation, or heavy industry. It’s better for those sectors to burn RNG (and SNG) than to burn fracked gas.

There are also lots of vehicles already in circulation that could benefit from RNG. Recently, UPS bought a bunch of RNG to reduce the climate impact of its existing fleet of natural-gas trucks. But even UPS is realistic:



TIL: UPS has 6800 natural gas-powered vehicles, and SVP Jim Bruce says soon they'll all be renewable nat gas.

"But there’s only so much renewable natural gas out there," he says. "We know how to deploy at scale, when the [electric] trucks are ready.”— Gavin Bade (@GavinBade) September 24, 2019

Liquid fuels will probably be needed for various subsectors and niche applications for a long while, so it’s worth pursuing every promising carbon-neutral or carbon-negative fuel.

But there are two key points to emphasize here. First, there is no scenario in which RNG is an alternative to electrification. At best, it is a complement. Electrification should move full speed ahead no matter what happens with RNG.


Second, California buildings are not one of those harder-to-abate sectors that need liquid fuels. A study last year in the journal Atmosphere specifically compared various pathways to decarbonizing space and water heating in California buildings, including “solar thermal, biogas, synthetic natural gas, and electrification.” It found that electrification is the only alternative that can serve all heating loads in the state (others cover between 2 and 70 percent). What’s more, it is the least cost pathway, coming in at 25 to 90+ percent cheaper than the alternatives.

The study concludes: “[E]nergy efficiency with electrification of heating is the most likely path to achieve the large carbon emission reduction needed from this sector.”
RNG cannot delay the inevitable decline of natural gas

Make no mistake, the natural gas industry opposes electrification because it wants to expand pipeline infrastructure. At an American Gas Association meeting in 2018, one industry leader, discussing RNG, tasked the audience to “consider how technologies to decarbonize the pipeline can serve as a conduit to environmental organizations, thereby seeking to mitigate the opposition’s fervor against infrastructure expansion.”

But the development of RNG, while worth pursuing, does not mean what SoCalGas and other natural gas utilities want it to mean. It is no reason to expand gas infrastructure; the fervor is as warranted as ever.

A recent report from E3G examined the role of natural gas in the EU’s decarbonized future. It found that in all its scenarios, even the most generous to decarbonized gas, the total amount of natural gas “throughput” in the system declined. It concluded that RNG should be pursued, but because it is so expensive, it should be targeted at harder-to-abate sectors where it has the highest social value. Above all, “the future prospect of renewable and decarbonised gases is no reason to slow down electrification or efficiency at this stage.”

The same is true in the US, as virtually every study agrees. Deep decarbonization means the decline of the natural gas industry, no matter what happens with RNG or SNG.

As the CEC has concluded, allowing the decline of natural gas to unfold organically threatens to be an unnecessarily long and messy process, leaving the growing costs of maintaining natural gas infrastructure piled on the shoulders of a shrinking group of ratepayers, largely those who can’t afford to escape the system. The only responsible course of action at this point is the one the CPUC appears to be taking: planning for a deliberate phaseout of natural gas, with costs shared equitably.

RNG is an interesting development at the margins, for some energy applications. But it is no bigger than a blip in the larger story of natural gas, which is one of inexorable and inevitable fading away to the margins.

---30---

Swarms of up to 80 Million Locusts Decimating Crops In East Africa, Threatening Food Security For 13 Million People

Mélissa Godin, Time•February 14, 2020

Worst Locust Swarm in Decades Destroy Crops in East Africa

The United Nations (UN) has called on the international community to provide nearly $76 million to finance aerial spraying of pesticides in East Africa, where swarms of locusts continue to decimate crops and threaten food security in the region.

In a tweet published Thursday, the Executive Director for the UN World Food Programme warned that if countries “do nothing” now, they will be forced to spend 15 times more money to feed the 13 million people “devastated by the loss of their crops and livelihoods.” “Which do you think is a better investment?!,” Beasley wrote.



#DesertLocust: @FAO needs $76M NOW to help end the plague. Do nothing and @WFP will need 15x that ($1.1B) to feed 13M+ people devastated by the loss of their crops and livelihoods! Which do you think is a better investment?! #Kenya #Ethiopia #Somalia #Uganda #Eritrea #Djibouti pic.twitter.com/gw4Phz8KlD

— David Beasley (@WFPChief) February 13, 2020

The current swarms of locusts are the most serious outbreak in decades, affecting Somalia, Ethiopia, Kenya, Eritrea and most recently, Tanzania and Uganda. The locusts could fly into South Sudan, a country whose population is already struggling with high levels of hunger. The swarms are extremely large, in North-Eastern Kenya, one swarm was measured to be 37 miles long and 25 miles wide.

The UN says that desert locusts are the most dangerous migratory pests because of their capacity to decimate crops, threatening food security and livelihoods. Swarms, which can contain 40-80 million locust adults, can consume crops in one day that would provide food for 35,000 people.

“The longer the outbreak continues, the higher the risk of famine goes up,” Peter Smerdon of the World Food Program in East Africa tells TIME. “You need to knock them out before they start wreaking further havoc.”

The latest locust swarms migrated from the Arabian peninsula, where cyclones in the deserts of Oman this fall created ideal breeding conditions. The swarms arrived on the African continent three months ago and have since grown in size and scope. The UN Food and Agricultural Organization (FAO) has warned that the swarms could increase by 500 times come June, in light of rainy forecasts.

Climate change may have contributed to the outbreak, according to the UN Environment Program. Warmer sea temperatures have increased the frequency of cyclones in the Indian Ocean, causing heavy rainfall on the Arabian peninsula which in turn accelerated locust reproduction. “We know that cyclones are the originators of swarms — and in the past 10 years there’s been an increase in the frequency of cyclones in the Indian Ocean,” Keith Cressman, senior locust forecasting officer at the UN FAO said earlier this month.

Aerial spraying of pesticides is the most effective way of controlling the swaths but countries in the regions have struggled to mobilize resources. Efforts to contain the outbreak are further hampered by the fact that many locusts are breeding in the Puntland region of Somalia, an area held by the Islamist extremist group al-Shabaad that is difficult to access. The Somalian government has declared a national emergency.

As the swarms continue to grow in size, the risk of famine in East Africa increases.

Smerdon says the locusts “could cause intense pain and suffering to people who because of climate change, are already living on the edge.” Climate change has increased the frequency and severity of droughts and floods in the region, hurting small holder farmers who depend on their crops to feed their families. “If you add locusts, they are really going to suffer,” Smerdon says.

Before the outbreak, close to 20 million people in East Africa already faced high levels of food insecurity. Unless the international community steps up to provide immediate and long-term support, Smerdon says “people will start cutting meals, pulling kids out of school.” He adds, “people will use all mechanisms to survive.”

SEE  https://plawiuk.blogspot.com/search?q=BIBLICAL
SEE  https://plawiuk.blogspot.com/search?q=PLAGUE
SEE  https://plawiuk.blogspot.com/search?q=AFRICA
SEE  https://plawiuk.blogspot.com/search?q=KENYA
SEE  https://plawiuk.blogspot.com/search?q=SOMALIA

SEE  https://plawiuk.blogspot.com/search?q=LOCUSTS

Alexandria Ocasio-Cortez Has Cheeky Response To Critics Of Her 'Drag Race' Guest Spot
RIGHT WING RED NECKS GET ALL TWISTED UP YET THEY SAY NOTHING ABOUT TRUMP GOING TO NASCAR

Curtis M. Wong, HuffPost•February 14, 2020

Alexandria Ocasio-Cortez Has Cheeky Response To Critics 

Of Her 'Drag Race' Guest Spot

Rep. Alexandria Ocasio-Cortez (D-N.Y.) is slated to join a host of luminaries on “RuPaul’s Drag Race” this season, but not everyone is thrilled.

On Thursday, VH1 unveiled its hotly anticipated list of guest judges for Season 12 of “RuPaul’s Drag Race,” featuring Ocasio-Cortez as well as actor Jeff Goldblum, rapper Nicki Minaj and singer Chaka Khan.

Ocasio-Cortez’s participation, however, caught heavy flak on social media, particularly from conservative news outlets and right-wing media figures. When “RuPaul’s Drag Race” shared a short promo video Thursday afternoon of the congresswoman on Twitter, some argued that the appearance was unpatriotic.

🏳️‍🌈🇺🇸 @AOC joins the Ruvolution! 🇺🇸🏳️‍🌈#DragRace premieres 2/28 at 8/7c on @VH1! pic.twitter.com/lH8TDTtWSy

— RuPaul's Drag Race (@RuPaulsDragRace) February 13, 2020

Conservative news outlet Chicks on the Right shared the Ocasio-Cortez video on their site and Facebook page, where it had drawn more than 280 comments, many of them negative, as of Friday afternoon.

“The world is much safer if she’s just ogling drag queens and staying out of government entirely,” one person wrote. Added another, “That actually sounds like an appropriate job for her. As opposed to the position she currently holds.”

Others, like Turning Point USA founder Charlie Kirk and Nate Madden of The Blaze, were similarly dismissive.


AOC is proud to “pledge allegiance to the Drag”

I wonder why she never claims to be proud to “pledge allegiance to the Flag”

🤔

pic.twitter.com/OObabZW7Sc

— Charlie Kirk (@charliekirk11) February 13, 2020



AOC is going to be a guest judge on RuPaul's drag race this season.

A sitting member of Congress: "I pledge allegiance to the drag."pic.twitter.com/dSm1LJRdMy

— Nate Madden (@NateOnTheHill) February 13, 2020

As for Ocasio-Cortez, however, she didn’t seem too vexed by the pushback to her “RuPaul’s Drag Race” appearance.

On Thursday afternoon, she responded:



They can go back to Party City 😉🏳️‍🌈 https://t.co/SOf33dXmBp

— Alexandria Ocasio-Cortez (@AOC) February 13, 2020

The congresswoman has been a popular target for conservatives since assuming office in 2019.

Last April, President Donald Trump took a swipe at her career roots, dismissing her support of a Green New Deal as the work of a “young bartender.”

Ocasio-Cortez, however, has remained resolute throughout much of the criticism. Earlier this month, she took late-night TV and podcast personalities Desus Nice and The Kid Mero on a video tour of her native Bronx, and at one point she stepped behind the bar to mix cocktails for the crew.

Why Medicare-for-all works for Bernie Sanders — and nobody else

Medicare-for-all isn’t dragging Sanders down so far in 2020. Here’s why.

By Dylan Scott@dylanlscottdylan.scott@vox.com Feb 14, 2020,

Sen. Bernie Sanders speaks during a health care rally in San Francisco on September 22, 2017. Justin Sullivan/Getty Images

Bernie Sanders looks more like a frontrunner than ever in the Democratic nomination for president. And the stronger he looks, the more center-left Democrats are nervous about the Vermont senator, an anxiety can be distilled down to three words: Medicare-for-all.

Sanders’s opponents believe his plan to nationalize American health insurance is a political albatross. They’re convinced it’s just too far to the left to win in a general election and Republicans will hammer Sanders for wanting to hike taxes and take away people’s current health insurance.

The data from the 2018 midterms shows House candidates who endorsed Medicare-for-all fared worse than their peers who didn’t. The polling also shows Americans aren’t totally sold on Medicare-for-all. Approval and disapproval are pretty evenly split, voters can be swayed when they hear arguments against it, and a more moderate “public option” proposal polls better. It’s easy to look at the other Democratic presidential candidates who had signed on to Sanders’s plan, from Kamala Harris (who’s already dropped out) to Elizabeth Warren (who seems to be struggling to stay afloat), and conclude it’s a political loser.

But Sanders looks like the exception. He has the strongest favorability rating of any candidate among Democratic voters. He performs well against President Donald Trump in a hypothetical general election matchup, even with Medicare-for-all so tied to his political brand.

“It is a winner for Bernie because it is part of his brand and it feels authentic coming from him,” says Ashley Kirzinger, who helps run the polling by the Kaiser Family Foundation. “I mean, he is the reason why we are discussing it and it has been front and center during the Democratic campaign.”

Sanders was the most trusted Democratic candidate on health care even when he was polling behind former Vice President Joe Biden in the national surveys. Medicare-for-all is most popular among young voters, who are critical to Sanders’s base.

“When you say, ‘I’m for that,’ it says that ‘I’m for equity.’ It says, ‘I’m gonna fight back against the corporate establishment,” Harvard pollster Robert Blendon told me. “It’s symbolic of these other things which appeal to young liberal people.”


In a lot of ways, Medicare-for-all does seem politically dicey. But not for Bernie Sanders.
The evidence on whether Medicare-for-all is a political liability

The best empirical evidence on Medicare-for-all’s electoral chances comes from Alan Abramowitz, a political science professor at Emory University. He ran through the 2018 House election results to analyze how candidates who endorsed the Sanders plan fared compared to more moderate candidates who did not.

Looking at competitive House elections, 45 percent of Democratic candidates who supported Medicare-for-all prevailed in their race, a much lower success rate than the 72 percent of Democrats who won their race without backing single-payer health care.

Abramowitz’s conclusion, written in a column for Sabato’s Crystal Ball, was unequivocal (emphasis mine):


Democratic candidates who endorsed Medicare for All did significantly worse than those who did not. The estimated coefficient of -4.6 indicates that support for Medicare for All cost Democratic candidates in these competitive districts almost five points of vote margin — a substantial effect in a close election.

The 2020 primary taught a similar lesson to two high-profile Democratic presidential candidates. Harris struggled to answer the tough questions about eliminating private insurance and raising taxes when pressed about her support for Bernie’s bill. She dropped out before Iowa. The conventional wisdom says Warren fell from her peak in the 2020 field last fall amid scrutiny over her proposal on how to finance single-payer. She eventually tried to split the difference, saying she’d prioritize a short-term public option first and then later try to pass a version of the Sanders proposal. She has finished third and now a disappointing fourth in the first two states.

Polling data indicates why single-payer might be a liability. At first glance, Medicare-for-all does poll pretty well: 56 percent approval and 41 percent disapproval, according to the most recent Kaiser Family Foundation survey. It could be aided by some misconceptions, though: More than half of people, for example, think they’d be able to keep their health insurance plan under the single-payer system. (Under Sanders’s bill, they would not; most private insurance would be prohibited after the four-year transition period.)

But public opinion hinges on how you talk about the issue. Support dropped from 56 percent to 37 percent when voters were told the proposal would eliminate private insurance companies or raise taxes for most Americans. (Support correspondingly surged when voters heard the strongest talking points in favor of the proposal: universal coverage and lower health care costs.) 

 

Kaiser Family Foundation

If you look at swing voters, Medicare-for-all struggles: A survey last year by KFF and the Cook Political Report found just 36 percent of those voters thought the policy was a good idea and 62 percent thought it was a bad idea.

All this evidence explains why establishment Democrats are so nervous about Medicare-for-all overall. They fear Sanders is running a quixotic campaign that would alienate voters they need to win over and be prone to demagogic attacks.

The KFF poll found that support for Medicare-for-all dropped to just 32 percent when voters were told it would threaten the current Medicare program. This is false, by the way — Sanders’s bill would actually improve benefits for existing Medicare enrollees — but that is still the message Trump and the GOP are going to deploy in 2020. They’ve already started making that case.

But while Medicare-for-all might be on shaky ground on its own, Sanders has managed to turn it into a very effective message in the Democratic race.
How Sanders has turned Medicare-for-all into a political winner

Sanders doesn’t raise any particular electability concerns compared to the other Democratic candidates, if you look the hypothetical head-to-head polls of a general election match-up with Trump. He fares about as well as Joe Biden and Mike Bloomberg, well-known centrists who don’t support Medicare-for-all, against the president.

So why wouldn’t Sanders pay a price as the owner of the Medicare-for-all issue? Two likely reasons:

His decades-long consistency on health care has built trust with voters on the issue.
Medicare-for-all motivates young voters who are critical to Sanders’s base.

In November, the Kaiser Family Foundation polled Democratic voters and Democratic-leaning independents on which 2020 candidate they trust most on health care. Even though Biden was leading the national polls at the time, and had criticized Sanders by saying his health care plan was too expensive, Sanders was handily the most trusted candidate on health care. Per the KFF poll, 29 percent of those voters said they trusted Sanders the most on health care, 21 percent said Biden, and 19 percent said Warren.

Kaiser Family Foundation

Sanders is seen overall as the most honest and trustworthy Democratic candidate, outpacing Biden and Warren by nearly 10 points by that metric in a January Fox News poll. The exit polls in Iowa and New Hampshire, where Sanders won the popular vote, showed primary voters broadly supported Medicare-for-all.

But some Democratic interests are still trying to turn the issue against Sanders. In Nevada, the most powerful union has made its opposition to Medicare-for-all clear, putting Sanders’s chances of notching a third early state win there at risk.


Sanders’s coalition is built substantially on young voters, though, and they like single-payer health care a lot. The most recent KFF tracking poll in January showed 65 percent of voters ages 18 to 29 say they support Medicare-for-all, and just 35 percent oppose, by far the strongest margin among any of the age cohorts. Democratic pollster Celinda Lake credited Sanders with galvanizing interest in single-payer among the younger voters.

“He had a whole audience who had not been really focused on it, particularly millennials,” she told me.

Sanders is successfully running on the issue where Warren, Harris, and some House candidates stumbled. He wrote the damn bill, as he likes to say.

He has also punted on answering the hard questions about how much taxes would need to be raised to pay for the program, though he acknowledges tax increases are necessary. He says he doesn’t think he needs to spell out all the details while he’s still a candidate.

Some Democrats see a double standard in how Sanders gets treated on Medicare-for-all compared to the scrutiny endured by Warren or Harris. They chafe at comments like those made by Rep. Alexandria Ocasio-Cortez, the most high-profile politician to back Sanders, who acknowledged a public option might be the most likely outcome when it comes time to pass actual legislation. The moderate candidates, and even Elizabeth Warren, have been battered by Sanders supporters for their lack of commitment to full-tilt single-payer health care.

But his perceived credibility has allowed Sanders — and Sanders alone, it seems — to sidestep the pitfalls and turn the issue into a political winner so far in the primary.
The big unknown: What happens when it’s Trump vs. Sanders

Sanders’s odds of winning the Democratic presidential nomination are about as high as they’ve ever been, per the FiveThirtyEight forecast. Looking ahead to a general election matchup, Trump seems to think Sanders’s brand of socialism, as manifested in Medicare-for-all, is a target heading into 2020.

“One hundred thirty-two lawmakers in this room have endorsed legislation to impose a socialist takeover of our health care system, wiping out the private health insurance plans of 180 million very happy Americans,” the president said in his State of the Union speech, a reference to the House version of Sanders’s proposal. “To those watching at home tonight, I want you to know: We will never let socialism destroy American health care.”

Sen. Bernie Sanders speaks while introducing health care legislation during a news conference in Washington, DC, on April 9, 2019. Mark Wilson/Getty Images

Trump will take his message to another audience too: older people, telling them Medicare-for-all would destroy the Medicare they depend on right now.

Even though it isn’t true, that won’t stop Trump from deploying it. Opinion research that shows seniors don’t support expanding government health insurance, as Vox’s Matt Yglesias covered:

In an important 2015 paper, Vivenkian Ashok, Ilyana Kuziemko, and Ebonya Washington investigate the question of why public support for economic redistribution has not risen since 1970 despite the large increase in economic inequality.

They show that the overall flat levels of support for redistribution actually mask significant shifts among different subgroups. In particular, African Americans and the elderly have become substantially less supportive of redistribution, while non-elderly whites have become moderately more supportive. ... For senior citizens, the biggest issue is that the elderly “have grown increasingly opposed to government provision of health insurance.”

The authors posit that “older Americans worry that redistribution will come at their expense, in particular via cuts to Medicare.”

But the polling also indicates that voters generally trust Democrats over Trump on health care, even though all of the Democrats are pushing for more government insurance. And whatever margins Sanders loses with swing voters or older voters could conceivably be made up for by an increased turnout among young voters who support Medicare-for-all. (That’s why the relatively meh turnout in the 2020 primaries so far is a bigger concern for Sanders than the narrow issue of Medicare-for-all.)

“Will it be a loser overall? I am not sure,” Kirzinger said. “We know it alienates some voters, but it also motivates younger voters, and so if the Democratic candidate stops talking about it ... does that mean those voters stay home?”

There are plenty of unknowns. Does the health care industry marshal its resources to stop Sanders? What do suburban voters fear most: a second term of Donald Trump or national health insurance? And does Sanders temper his message at all during the general election?

The senator has made recent comments acknowledging it will be a political challenge to achieve his agenda.

Sanders: “I’m not here to tell you ‘Hey vote for me I’ll fix everything tomorrow.’” He said it’s not going to be easy taking on Wall St., drug companies, insurance companies, fossil fuel industry, the Democratic establishment, etc. “Other than that, it’s a walk in the park.”— Emma Kinery (@EmmaKinery) February 9, 2020

If Sanders runs on single-payer as an aspirational goal against Trump, while pounding the president for his plans to cut health care, that could mitigate red-baiting by Republicans.

And health care isn’t going to be the only issue litigated in the 2020 election. Trump will try to fearmonger over socialism, but he has his own record to defend. He’s the incumbent.

Working America, a political organizing arm of AFL-CIO, did a recent survey with working-class persuadable voters and found that while Medicare-for-all was not popular with them, the Trump tax bill was even less popular. The Obamacare repeal legislation Trump endorsed was the most unpopular major legislation in a generation.

Another KFF poll found just 12 percent of swing voters said that Trump’s opposition to Medicare-for-all would make them more likely to vote for him. Meanwhile, 9 percent said support for the plan would make them more likely to back a Democrat and 17 percent were more likely to support a Democratic candidate pushing “universal coverage.”

A look at the evidence on Medicare-for-all comes down to this: Generally, Americans actually are okay with the federal government playing a big role in providing health care, so a candidate who wants single-payer someday might not scare them as much as the elite consensus suggests. The idea is still above water in national polls. It’s not ridiculous to believe that Sanders — and probably only Sanders — could use it to his advantage in 2020.

But Democratic primary voters still have to decide if they are ready to put that question to the test.

SEE 

AOC lowers expectations on Medicare for All, admitting Sanders 'can't wave a magic wand' to pass it

AOC lowers expectations on Medicare for All, admitting Sanders 'can't wave a magic wand' to pass it

Rep. Alexandria Ocasio-Cortez said Thursday that if Sen. Bernie Sanders were elected president, he still might not be able to get Medicare for All, his signature health plan, passed in Congress.

“A president can’t wave a magic wand and pass any legislation they want,” Ocasio-Cortez, D-N.Y., told HuffPost this week.

While Ocasio-Cortez rarely tempers expectations when championing ideas like Medicare for All and the Green New Deal to fight climate change she helped author, she went on to suggest that under a President Sanders, a “compromise” might emerge on health care, even though she still considers Sanders’s bill the gold standard.

“The worst-case scenario? We compromise deeply and we end up getting a public option. Is that a nightmare? I don’t think so,” she said.

Rep. Alexandria Ocasio-Cortez at a campaign stop for Sen. Bernie Sanders on Jan. 26 in Perry, Iowa. (Andrew Harnik/AP)

That dose of political realism was notable on an issue that has divided the Democratic primary. When Sen. Elizabeth Warren rose to the top of the Democratic field last fall, her rivals zeroed in on her inability to say whether a government-run health plan estimated to cost $30 trillion would result in higher taxes for the middle class.

After Warren laid out a modified proposal for her health care plan that she said would cost $20 trillion, former Vice President Joe Biden accused her of “making it up.”

“Look, nobody thinks it’s $20 trillion,” Biden told PBS last year, adding, “I think it is going to be very difficult to even get a Democratic Congress to vote for that.”

Warren’s revised plan is similar to what Ocasio-Cortez proposed as a fallback goal of enacting a public option as a first step to full Medicare for All.

After Warren offered that concession, and as her standing in the race fell, she was supplanted by Sanders as the face of Medicare for All, and the target of critics who see it as unrealistic.

Sen. Bernie Sanders at a campaign event in Durham, N.C., on Friday. (Gerald Herbert/AP)

During January’s Democratic presidential debate in Iowa, Sen. Amy Klobuchar also threw cold water on the likelihood of Sanders’s plan becoming law.

“Over two-thirds of the Democrats in the U.S. Senate are not on the bill that [Sanders] and Sen. Warren are on,” Klobuchar said. “You have numerous governors that are Democratic that don’t support this.”

Citing data showing that many Americans like their private health care plans, Pete Buttigieg has also offered an alternative to Medicare for All.

“I think the best approach is to make this Medicare option available to everybody, but not command everybody to adopt it, especially I’m thinking of folks like the culinary workers here in Nevada,” Buttigieg said in an interview with the Nevada Independent. “There are a lot of labor union members who have negotiated very good health plans that are part of their compensation, and I don’t think they want to be forced into a plan they don’t know.”

Buttigieg’s plan, which he calls Medicare for All Who Want It, foresees a future in which a government-run health system outcompetes private insurance. In the meantime, however, it backs away from forcing Americans and Congress to choose between a new way of delivering care and the current model.

Ocasio-Cortez’s comments this week were not lost on some of the Democrats who fought to get Obamacare passed into law.

The people who attacked Warren for her not taking the maximalist position on M4A owe her an apology.

Because apparently intermediary steps are now ok. https://t.co/EL0V5SdQTV

— Neera Tanden (@neeratanden) February 13, 2020

That left Sanders’s most high-profile surrogate to try to clarify her views on how much moderation was too much on the subject of health care.

“FYI, I speak for myself as a member of Congress- if I were speaking on behalf of a campaign, I’d say so!” Ocasio-Cortez tweeted in response to Tanden. “2nd I think there’s a legitimate convo btwn starting with what you want & starting w/ compromise. I believe a public option is worse than M4A, so we should fight for M4A 1st.”

SEE Why Medicare-for-all works for Bernie Sanders — and nobody else

DoorDash’s anti-worker tactics just backfired spectacularly

When dividing and conquering goes wrong.

VOX Feb 12, 2020

Smith Collection/Gado/Getty Images

The food delivery company DoorDash made its delivery workers sign away their right to sue if a legal dispute arises between a worker and the company. Instead, disputes would be resolved by a privatized arbitration system that tends to favor corporate parties.

It’s a common tactic, often used by companies seeking to discourage workers from asserting their legal rights at all. And, if a decision handed down Monday by a federal district judge stands, the tactic backfired spectacularly for DoorDash.

Under Judge William Alsup’s order in Abernathy v. DoorDash, DoorDash must arbitrate over 5,000 individual disputes with various workers who claim that they were misclassified as independent contractors, when they should be treated as employees. It also must pay a $1,900 fee for each of these individual arbitration proceedings.

Though DoorDash might settle the various claims before it is hit with these fees, Alsup’s order means that if it doesn’t, the delivery company will face a bill of nearly $10 million before any of the individual proceedings are even resolved. Add in the cost of paying for lawyers to represent them in each proceeding, plus the amount the company will have to pay to the workers in each proceeding that it loses, and DoorDash is likely to wind up paying far more money than it would have if it hadn’t tried to strip away many of its workers’ rights.

Ordinarily, when thousands of workers at the same company all raise very similar legal claims against that same employer, those workers will join together in a class action lawsuit — a process that allows all of the disputes to be resolved in a single suit rather than in thousands of separate proceedings. But DoorDash required these delivery workers to sign away their right to bring a class action as well.

That decision also appears to have backfired.
Forced arbitration, explained

In 1925, Congress enacted the Federal Arbitration Act to, in Justice Ruth Bader Ginsburg’s words, allow “merchants with relatively equal bargaining power” to resolve disputes through private arbitration. For such merchants, arbitration is often preferred to litigation because it can be quicker, less expensive, and because merchants can choose an arbitrator who is more familiar with their industry than a typical judge.

Beginning in the 1980s, however, the Supreme Court started to read the Arbitration Act to allow companies to require ordinary consumers and workers to agree to arbitration as a condition of doing business with that company. Some of these Supreme Court decisions rested on a defensible reading of the Arbitration Act’s text, but many of them distorted that text so severely that it is easy to suspect bad faith.

The Arbitration Act, for example, exempts “workers engaged in foreign or interstate commerce.” Yet, in Circuit City v. Adams (2001), the Supreme Court held that most workers engaged in foreign or interstate commerce may be forced into arbitration. Similarly, the Arbitration Act is silent on the subject of class actions, but in AT&T v. Concepcion (2011), the Court held that companies can insert a clause into arbitration contracts that ban class actions.

Most recently, in Epic Systems v. Lewis (2018), the Supreme Court merged these two prior holdings. Epic Systems conclusively established that a company can order its workers to give up their right to bring a class action and require those workers to arbitrate any future disputes — and immediately fire any worker who does not comply.

For employers, these decisions were largely a windfall. As the Economic Policy Institute’s Ross Eisenbrey explains, workers are less likely to prevail in arbitration than they are in litigation. And when workers to prevail in arbitration, they typically receive far less money than they would have if their case had been heard by a judge.

Economic Policy Institute

Class action bans, meanwhile, often allow employers to immunize themselves from liability altogether.

Consider the facts of Concepcion, the 2011 decision allowing companies to add class action bans to forced arbitration contracts. The plaintiffs in that case were cellphone customers who claimed that they were victims of deceptive advertising, and that they were overcharged by $30.22.


Virtually no one is going to file a lawsuit over a $30.22 charge. The cost of hiring a lawyer, filing a complaint, and litigating (or arbitrating) the case until the bitter end will vastly exceed the amount of money at issue. But, if a company cheats millions of customers out of tiny sums of money, the total value of their claim could be tens or even hundreds of millions of dollars.

Class actions allow large groups with similar grievances to join together under a single lawsuit, and they allow that large group to hire excellent legal counsel who will litigate the case in return for a share of the money the group receives if they prevail.

But if class actions are banned, no lawsuit will ever be filed in the first place.

As one federal court of appeals decision explained in a case similar to Concepcion, “the realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

Class action bans, moreover, give companies tremendous incentive to cheat their workers — so long as they only cheat each worker a little bit at a time. In the DoorDash case, for example, each of the more than 5,000 workers at the heart of that case had to pay a $300 filing fee before they could bring any claim at all against DoorDash. That means that DoorDash could theoretically have outright stolen as much as $299 from each worker, and it could have done so knowing that none of those workers had a plausible way to recoup that money.

How DoorDash’s workers beat a rigged system

Judge Alsup does not conceal his disdain for companies that use decisions like Concepcion and Epic Systems to strip away the rights of their workers. “For decades,” he writes in his DoorDash opinion, “the employer-side bar and their employer clients have forced arbitration clauses upon workers, thus taking away their right to go to court, and forced class-action waivers upon them too, thus taking away their ability to join collectively to vindicate common rights.”

What makes this recent case different, is that “the workers wish to enforce the very provisions forced on them by seeking, even if by the thousands, individual arbitrations.” When a company imposes a forced arbitration clause and a class action ban on its workers, it often bets that those workers will slink away quietly if the company breaks the law. It bets on the fact that “only a lunatic or a fanatic” sues over a relatively small amount of money.

But now a handful of plaintiffs’ law firms are calling these companies’ bluff by actually seeking to arbitrate thousands of cases at a time.

It’s a tactic that’s worked before. After Uber imposed forced arbitration and a class action ban on its drivers, more than 60,000 of those drivers sought to arbitrate claims against the company. Faced with legal costs of at least $600 million, Uber cried “uncle!” The company announced it settled the “large majority” of these claims last May.

Yet, while filing large amounts of arbitration claims may cause some companies to rethink forced arbitration, this tactic also carries considerable risk for plaintiffs’ lawyers. Actually arbitrating thousands of cases on behalf of workers with small claims is a terrible way for a lawyer to earn a living. It’s slow, work-intensive, and the payoff at the end is very small.

The plaintiffs’ lawyers are playing a game of chicken with employers like Uber and DoorDash, and it’s not at all clear that this tactic can be expanded into a broader attack on forced arbitration.