Captain Obvious Strikes Again

Posted on May 16, 2018 by matt ohern
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Since President Trump reduced the size of a couple national monuments in Utah, the chorus of critics has grown increasingly shrill, moving from press conferences expressing outrage, to lawsuits demanding reversal. Now the nation’s largest newspaper (the one back East) has uncovered what it considers one of the nation’s most embarrassing scandals – there are natural resources involved!
The paper’s crack reporters filed requests under the Freedom of Information Act, demanding public release of “secret” emails explaining why the Interior Department recommended, and President Trump approved, shrinking Bears’ Ears and Grand Staircase Escalante National Monuments. The Department readily released the documents (how refreshing), and what they revealed appears to have shocked the eastern press establishment to its core. Namely, top officials were aware that the two monuments included lands that contain valuable minerals, especially coal.
Well, you could have knocked me down with a feather when I read about this, except for one small detail – everyone already knew it. In fact, the presence of one of the largest coal reserves on Earth was precisely the reason President Clinton created Grand Staircase Escalante National Monument. A plan to reopen a once productive uranium mine was precisely the reason President Obama created Bears’ Ears National Monument.
Still, the headline screamed, “New evidence shows oil and coal were central in decision to reduce Bears Ears.” If you think our use of energy, to build the world’s most prosperous society, is destroying the Earth, I guess that might sound bad. But what’s really “new” about it? Presumably the emails themselves, and perhaps Interior Secretary Ryan Zinke’s explanation that the recommendation was not just about energy and minerals, but about “an approach in which we listen to the voices of the people, not Washington, DC, special interests.” That is a reference to the fact that all of Utah’s elected officials opposed the monuments in the first place, because they barred uses of public lands upon which local communities depend.
For example, one of the “scandalous” emails was sent to Interior from the office of Utah’s Senior Senator, Orrin Hatch, with a map showing the areas where valuable minerals are known, and advocating reopening those lands to multiple use. This is apparently considered a violation of some sense of propriety by people who oppose the use of public lands for anything but backpacking. But in fact, it is an accurate representation of the views of the people who live there. This is not the Orrin Hatch Fan Club, but he has been elected by the people of Utah seven times since 1976, and clearly knows the will of his people better than Clinton or Obama, neither of whom ever won Utah, or any of the counties in those areas. That’s probably why Clinton didn’t bother to announce the Grand Staircase in the State, but chose instead to deliver a rousing environmental address surrounded by friends in Arizona.
One of the Interior Department memos included the statement that “The Kaiparowits plateau, located within the [Grand Staircase] monument, contains one of the largest coal deposits in the United States.” Indeed, it contains at least 26 billion tons of coal, worth well over $1 trillion. In the late 1990s Andalux Resources, which held leases on 3,400 acres in the area, was planning an operation (underground, not strip mining) that would have generated 1,000 jobs, $1 million in annual revenue for Kane County, and $10 million a year in taxes, according to the same newspaper. So Clinton blocked it by making 1.7 million acres a national monument, even while acknowledging the importance of coal to America’s economy. It remains the Nation’s most abundant and affordable energy source, and in the West, more than half of all electricity comes from coal.
President Obama’s explicit plan to kill the coal industry significantly increased utility bills for average Americans, an upward trend that continues. In fact, most of the now-public documents – about 20,000 pages – detail years of work during the Obama administration to create new monuments, despite opposition from the local residents. That is one of the reasons voters pulled the lever for Donald Trump, the candidate who promised to reverse that trend, put the miners back to work, produce America’s domestic oil and gas instead of relying on imports, and reopen vast tracts of public lands that had been walled off.
Captain Obvious, of the popular TV commercials, would love the feigned shock of reporters who make the remarkable discovery that elections have consequences, and public officials might actually do what they promised. –

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Want to Honor Barbara Bush? Read to a Child

Posted on May 2, 2018 by matt ohern
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Honor Barbara Bush by Reading to a Child“So there’s a reading circle and all the kids have a book and they’re passing the book kid to kid and they passed it to me and I couldn’t read.”
That’s a dyslexic Neil Bush, describing the moment his mother took on the challenge of literacy and reading.
The passing of former First Lady Barbara Bush offers an opportunity to remember, among her other attributes, her work as a pioneer of the family literacy movement.
The Barbara Bush Foundation for Family Literacy focused simultaneously on developing early childhood preparation and adult literacy, so low-income parents and their young children would boost their respective cognition and literacy skills together. Developing reading skills, she believed, would strengthen families and the nation – and was key to solving the critical challenges of social and economic mobility and quality of life.
By the time they reach kindergarten, low income students are exposed to 30 million fewer words, a deficit that shows up in reading ability. Low-income children are less likely to have their parents read stories to them – either because of sparse time, few books in the home, or simply because their parents themselves are not literate.
This lack of literacy cascades in their lives until they arrive at their first job with weak reading skills – or with no skills, and no job to match.
That gap exists here in Virginia, too. In the recently-released fourth grade National Assessment of Educational Progress reading scores, only Massachusetts, New Jersey and Department of Defense schools perform at a statistically higher level than Virginia students.
But 75 percent of low-income Virginia fourth graders cannot read proficiently – a gap 31 percentile points higher than other fourth graders. And a student who does not read proficiently by the third grade is four times more likely to leave high school without a diploma.
What can schools and communities do about it? Better yet: What Would Barbara Do?
She would probably say “Start by reading to them.” And that’s precisely what nearly 40,000 Virginia children in 92 schools found themselves doing this year: reading the same book at the same time.
Virginia Reads One Book (VROB) is a project of Read To Them (RTT), a national non-profit headquartered in Richmond and operating on a simple concept: Children who are read to learn to read more easily and become better readers. Schools can purchase more than 100
9035 Golden Sunset Lane ▪ Springfield, Virginia 22153 ▪ 703/440-9447 ▪ info@thomasjeffersoninst.orgheavily discounted titles – including such classics as E.B. White’s Charlotte’s Web, Roald Dahl’s Charlie and the Chocolate Factory and C.S. Lewis’ The Lion, the Witch and the Wardrobe.
Their “One School, One Book” campaign offers tools so that everyone in a school – students, parents, teachers, administrative staff — follow along together, building a community of readers. By organizing the entire school, young students have the opportunity of being read to through a variety of platforms: “celebrity readers,” older children reading to younger children, on video tape, during the breakfast period at school and … for one small community, over the local radio station.
This year’s “Virginia Reads One Book” campaign took the project even further. Kicking off with a video from Washington Redskins Guard Arie Kouandjio reading the first chapter of The Lemonade War, students throughout the state found themselves reading a new chapter each day.
RTT’s Program Director Cathy Plageman notes that “We want them to understand that reading is something you can do for joy, and not just for an assignment.” So RTT provides ideas for Assemblies, daily trivia questions, Lemonade-themed group and class projects, contests, and tips for parents reading at home.
And, having selected a book featuring two siblings who open competitive lemonade stands — RTT added a financial literacy component developed by the Virginia Council on Economic Education covering “math that seems real to kids,” basic economic concepts and savings.
Does the simple act of reading to children make a difference? Northumberland Elementary School, with a low-income population of more than 60 percent, has been involved with RTT since its inception. Prior to starting a robust reading program, the school’s reading pass rates hovered around the 60 percent mark. Since then, its pass rate has soared to well over 80 percent.
Reading to children … reading together … facilitates that, helping children learn language and speech development, innately building attention span and honing listening skills, learning appropriate behavior exhibited in the books, understanding grammar and sentence structure, and simply giving children the attention they crave and the bonding time they need.
Richmond Mayor Levar Stoney is looking to see the program expand to every Richmond City elementary school next year. Getting a One Richmond, One Book program underway in a community that has educationally struggled for years would be the kind of tribute Barbara Bush would have especially appreciated.
(A version of this commentary was originally published in the April 21 edition of The Richmond Times-Dispatch.)
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Outsourcing WMATA’s Silver Line Phase 2 Could Improve Operations

Posted on May 2, 2018 by matt ohern
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In January 2018, D.C. Metro officials issued a formal request for information on outsourcing station operations and track maintenance for Silver Line Phase II, expected to be completed by 2020. The potential to improve operations through a public-private partnership (PPP) is a positive move, considering the poor track record of the Washington Metropolitan Area Transit Authority (WMATA)—commonly referred to as Metro.
In 2016 alone, rail line segments shutdown for weeks at a time, which highlighted Metro’s “dire” need for $1.3 billion a year in additional funding. Ridership was down 4.3% in the three years prior. Other areas of concern include performance, liabilities, revenues, and most notably, safety.
In April 2017, Metro General Manager Paul Wiedefeld proposed a plan to increase capital spending that included outsourcing station operations and track maintenance. Part of Wiedefeld’s plan is “to open those functions to competition that Metro has the ability to outsource where efficiencies can be gained.”
The idea has already encountered union opposition that cited this proposal as an attack on workers. Competitive contracting, unions claim, will result in higher costs in the long run. This opposition comes despite the Metro Board of Director’s June 2017 overwhelming vote (14-1) in support of Wiedefeld’s plan.
Through this procurement process, private contractors could potentially offer better value for services through performance-based contracts that stipulate on-time performance, increased safety/reduction of injuries, reliability, increased ridership and customer satisfaction. If successful, there’s potential by improving management and operations for the Silver Line Phase II to have a positive spillover influence on Metro’s performance, safety record and dire financial situation overall.
Metro could truly benefit from improving its operations. For starters, Metro saw a 14% drop of rail riders between 2015-16, resulting in a 0.3% national drop of total subway riders. According to budget documents, in Fiscal Year (FY) 2016, WMATA’s total rail and bus ridership dropped to 321 million trips, a decrease of 20 million or 6% from 2015, continuing a larger pattern of total ridership declines since 2011. These figures were derived before the beginning of the SafeTrack maintenance program, which has recently caused delays and rerouting.
Reduced reliability, combined with the increased use of bike and ridesharing, contributed to declines in Metro use. In 2016, biking to work represented  0.6% of D.C. commuters, up 20% since 2010, according to the US Census Bureau. As another alternative, commuters choose ride-sharing services such as Uber or Lyft because of system unreliability. Uber claims it has 1.9 million active riders in the Washington region and 42,000 drivers, up from 30,000 in 2016. Lyft tripled ridership between 2015 and 2016.
According to financial statements from FY 2016 and FY 2017, the difference between WMATA’s liabilities and assets worsened by $173 million, which mirrors a reduction in total value from $10.5 billion to $10.3 billion. In 2017, its revenues dropped $353 million, an 11.9% drop, while it’s liabilities increased by $215 million, a 28.0% increase. Metro had current liabilities of $984 million but had only $821 million in current assets to pay it.
In 2015, prior to the SafeTrack repair program, Metro failed to meet its targets for on-time service, employee/customer injuries, rail car reliability and customer satisfaction. Metro has also had an extensive history of ignoring  safety concerns raised at public hearings by federal experts, civic groups, business groups, Metro board meetings, crash investigators, peer-reviewed studies and even senior Metro management.
In a 2016 article, Reason Foundation’s Baruch Feigenbaum cited several points when writing that Metro could operate much more successfully if operations were outsourced. First, with a private entity operating transit service, WMATA would be “free from political constraints to do things fast instead of right.” As a result “it would make rational long-term capital decisions.” Second, it’s more efficient to have the customers and a general manager run the system, not the unions that presently control it. Third, “a professional board would oversee WMATA, not elected politicians” who are more concerned with political grandstanding than addressing issues such as basic maintenance.   
Abroad, states Feigenbaum, “many of Europe’s great transit systems are privately run or contract service and pay their workers more than their U.S. counterparts.” Plus, contracting services can transfer important operating and maintenance-related risks from government—and thus taxpayers—to a private entity.
Wiedefeld hopes to borrow the Massachusetts Bay Transportation Authority’s (MBTA) successful approach toward contracting out its transit operations such as cash maintenance (cash-counting operations), parts warehousing and bus maintenance.
As previously written in Reason Foundation’s Annual Privatization Report 2017, the MBTA voted unanimously to approve outsourcing cash operations of their “T” transit system and awarded a five-year, $18.7 million contract to the Brink’s Corporation.
In December 2017, MBTA also released a request for proposal for the T’s customer service operations and recommended contracting with Global Contact Services (GCS) in May 2017. All told, the MBTA is expecting to save $8.5 million over a five-year period, while expanding weekday and weekend hours. In addition, the contract holds GCS to performance-based metrics with regard to average call answering speed, abandonment rates and customer feedback.
There have been several recent developments in the contracting transit arena:  

  • New Jersey Transit rail service has experienced a backlog of repairs and parts shortages, and consequently plans to outsource repair work.
  • Capital Metropolitan Transportation Authority (Cap Metro) in Austin, TX, contracted out services to private firms MV Transportation and McDonald Transit Associates Inc. in 2012 to handle the bulk of bus and paratransit services. According to a Cap Metro FY 2018 report, they have seen improvements in both bus and paratransit operations: replacing/upgrading vehicles, expanding services, improving safety standards and testing autonomous vehicles for bus operations. The system experienced a 0.4% decrease in total operating expenses from FY 2016 to FY 2017.
  • The Metropolitan Atlanta Rapid Transit Authority outsourced paratransit operations in November 2015. The authority has saved money and improved on-time performance by contracting services to MV Transportation for fleet maintenance and for operations. MARTA’s poor on-time performance at 80% resulted in legal action. The contract with MV Transportation would not allow dips below 90%. MV Transportation has been operating services in Atlanta since the spring of 2016. However, since outsourced operations began there has been opposition by the Amalgamated Transit Union leading an arbitration board to give the agency 100 days to bring operations back in-house.
  • Miami-Dade’s Metrorail has been experiencing “chronic breakdowns” and shortages in working cars due to “years of deferred maintenance,” resulting in an increase in rush hour headway from five minutes to seven-and-a-half minutes.  The 2018 budget planned on outsourcing bus routes along with other measures in an attempt to use the money to improve Metrorail.

If WMATA’s pursuit of a public-private partnership for Silver Line Phase 2 can allow potential contractors to improve operations, maintenance and WMATA’s bottom line, then it would make sense to pursue that option. Under the right management Silver Line Phase 2 could help to restore public confidence and improve Metro’s sinking budget.
(Reprinted from Reason Foundation’s April 2018 “Privatization and Government Reform Newsletter.”)

 

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Smithfield Loses $50 Million Lawsuit

Posted on May 2, 2018 by matt ohern
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Murphy Brown LLC, a subsidiary of Smithfield Foods and hog producer, received a verdict last Thursday from a North Carolina jury that it must pay plaintiffs $50 million in damages as a result of a nuisance lawsuit. The jury ruled in a unanimous verdict each plaintiff should be awarded $75,000 in compensatory damages and $5 million in punitive damages.
Smithfield will appeal the decision.
The North Carolina legislature has also passed a law in the last year which will likely limit each plaintiff’s compensatory damages so it is unlikely any plaintiff will see the $5 million. The Wall Street Journal indicated, ”It is unclear if a state law that caps punitive damages at the higher of 3 times compensatory damages…would apply.”
This is the first of 26 cases to go to trial. The second case is slated to go to trial next month. A spokesperson for Smithfield stated, “These lawsuits are an outrageous attack on animal agriculture, rural North Carolina and thousands of independent family farmers who own and operate contract farms.”
Murphy Brown was accused of failing to eliminate obnoxious, recurrent odors and large number of pests from a CAFO which plaintiffs claimed affected their homes. This was a dispute between adjacent property owners regarding how society views common law nuisance, environmental law and agricultural land use.
The rights of neighbors vs. hog production goes back to the 1600s in England. A famous case we all learn about in law school, William Aldred’s case, dates back to 1611. This is the first case on record which tried to rectify an alleged environmental harm. The court in 1611 stated “[a] an action on the case lies for erecting a hogstye so near the house of the plaintiff that the air thereof was corrupted.” Ever since this case, upset landowners have sought to protect their right to the enjoyment of their property.
Nuisance is a result of some conduct that is intentional, negligent or subject to strict liability. Nuisance as a cause of action seems fairly simple. However, virtually every state in the Union has passed a Right to Farm Statute to protect farmers because it can be alleged farming is a nuisance to a neighbor because farms generate dust, noise, pesticide drift and odors.
In this case, plaintiffs alleged Murphy Brown and its hogs placed on a contract farmer’s land created an unlawful interference with a neighbor’s use and enjoyment of their land. (Pretty simple.)
The jury instructions provided by the court provides interesting insight. The court instructed the jury to base its view on the law given to it by the Court and instructed the jurors they must not be swayed by bias or prejudice towards either party.
The court stated, “Our system of law does not permit jurors to be governed by prejudice or sympathy or public opinion” (impossible). He also told the jurors they were the sole judges of credibility and believability of each witness.
After going through the preliminary instructions, he identified 10 plaintiffs by name and told the jurors to decide the case based on the issues presented to them. The first issue the Court directed jurors to consider was, “Did the defendant substantially and unreasonably interfere with the plaintiffs’ use and enjoyment of his or her property?” The judge further instructed that an inference could be drawn and stated, “Inference is substantial when it results in significant annoyance, material physical discomfort or injury to a person’s health or property.”
The court then defined the term “substantial interference” and whether that interference would be unreasonable to a person of ordinary prudence and discretion. The Court went on to define substantial interference being unreasonable and listed several factors, such as suitability to the location of the defendant’s property; the nature, utility and social value of the plaintiffs’ use and enjoyment of his property, and had that been invaded.
The Court then said if the answer to issue one is yes, then his second instruction was, “What amount of damages, if any, is plaintiff entitled from the defendant?” Then the Court explained to the jurors that if they awarded actual damages, they should ask “Is the defendant liable to the plaintiff for punitive damages?”
The Court told the jurors that the plaintiff had to prove by clear and convincing evidence there was malice or willful or wanton conduct exhibited by Murphy Brown (I found this instruction amazing).The court explained, “Malice means a sense of personal ill will toward the plaintiff that activated or incited the defendant to perform the act or undertake the conduct that resulted in harm to the plaintiff.”
The Right to Farm statute in North Carolina played no role in the jury trial. Without this defense, defeat was almost certain.
(This article first ran in the May 1, 2018 edition of Farm Futures)      
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PJM to Analyze Long-Term Grid Resilience

Posted on May 2, 2018 by matt ohern
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PJM Interconnection, operator of the regional transmission grid of which Virginia is a part, says the electric grid handled the 12-day bout of extreme cold weather in January with plenty of margin to spare. But given the evolving energy mix in the multi-state region serving 65 million Americans — more gas, wind and solar, less coal and nuclear — PJM has embarked upon an analysis to assess future fuel security.
“The PJM grid remains reliable even with the resource retirements analyzed to date and investment in new, increasingly more efficient gas-powered generation sources,” said the grid operator in a press release yesterday. “While the grid also remains fuel secure given these changes, the potential for continued evolution of the fuel mix underscores concerns … about the need to examine the long-term resilience of the grid.”
PJM’s initiative follows findings by the National Energy Technology Laboratory (NETL) last month that a surge in coal-generated electricity helped the Mid-Atlantic and Northeastern regions get through the Bomb Cyclone deep freeze, while nuclear, gas, wind and solar output remained largely static. NTEL argued that gas-fired electricity output was somewhat constrained by pipeline capacity and the necessity of competing with natural gas as a home heating fuel. PJM responded that demand for gas pushed up the price to the point where coal became cost competitive to burn, but there never was a shortage of gas.
That’s this year. What about the future as the energy mix continues to evolve? Virginia appears poised to participate in the Regional Greenhouse Gas Initiative (RGGI), a cap-and-trade market designed to ratchet down utility carbon emissions by 30% over 10 years. For participating states, that will require the phasing out of power plants reliant upon the most carbon-intensive energy sources, coal and oil. Furthermore, increasing production of wind and solar power continue to undermine the economics of nuclear power. Here in Virginia, environmental and left-wing activist groups have signaled their opposition to re-licensing the Surry and North Anna nuclear plants over the next decade or two. Bottom line: the long-range energy mix could be far more dependent upon gas and renewables than it is today.
PJM places a premium on fuel diversity as a way to mitigate risk. “No generation resource is free from risks that can negatively impact the electric power sector,” states a 2017 report, “PJM‘s Evolving Resource Mix and System Reliability.” “These risks are global and can affect any geography or political construction.”
However, in an analysis of a wide variety of power-source portfolios with different mixes of coal, nuclear, gas, wind, solar and “other,” the study found that “natural gas and, to a lesser degree, coal” contributed more to system flexibility and reliability than the competing power sources. The study drew no conclusions regarding an ideal power-generating portfolio. In other reports, PJM has said that the existing transmission system can accommodate up to 30% contribution from wind and solar.
PJM’s new analysis will involve three phases:

  • Identify system vulnerabilities and determine attributes such as dual-fuel capability that can ensure that peak demands can be met during extreme scenarios.
  • Model those vulnerabilities as constraints in PJM’s wholesale market for guaranteed capacity.
  • Work with federal agencies to ensure that PJM is meeting security needs for military installations.

Stated the press release: “The intent of the vulnerability assessment is to stress-test the system under various fuel supply disruption scenarios to better understand potential future reliability concerns.”
(This article first ran on May 1, 2018 in Bacon’s Rebellion.)
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