Jefferson Policy Journal

The Virginia Attorney General Joins in Scam Threatening Free Speech

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freedom of speech The Racketeer Influenced and Corrupt Organizations (RICO) Act is a federal law enacted in the early 1970’s that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization. The law was targeted at “Racketeering” activity, which includes things like murder, extortion, robbery, drug dealing or trafficking, money laundering, embezzlement, and bribery. Its purpose is to ensure that both the murderer and the boss that ordered the murder are both punished. All that is required is a “predicate crime” such as murder, and a conspiracy to conduct the crime.
The Climate Change debate has entered a new battlefield, the world of criminal RICO investigations. On March 29th, 20 state Attorneys General (19 democrats and one independent, including the Virginia AG) held a press conference announcing that they were opening RICO investigations on a petroleum company, Exxon/Mobil, and its “conspirators.” These conspirators included the Competitiveness Enterprise Institute, a Washington D.C., libertarian think tank. The AG’s have designated their efforts as the “Exxon/Fossil Fuel Company Investigations.” This effort is legally ugly, it’s politically stupid and its purpose has nothing to do with punishing criminal acts.

What in the world does RICO have to do with climate change? Well, one “predicate crime” is fraud. If a company, say Exxon/Mobil, fails to inform its shareholders that its products are one of the causes of climate change and thus the company is potentially liable for harm to people as a result of climate change, then Exxon/Mobil will have defrauded its stockholders who have been uninformed as to the true financial risks facing the company.

The chances of success in such a RICO suit are infinitesimally small. But this is not about a law suit. It’s about something else altogether – greed. Here’s the inside story.

Attorneys are looking for a big score – a law suit that will enrich them beyond their wildest dreams. Attorneys General are looking to make a big political splash. States are looking for a new pot of money. And, there are businessmen and women who are looking to harm their economic competitors. These are the players in the new RICO drama. Here’s how the scam plays out.
Foundations, including the Rockefeller Brothers Fund (RBF), have trustees or directors who directly benefit from the activities the foundations fund. For example, Wendy Gordon, an RBF trustee is a consultant for the Natural Resources Defense Council. RBF gave her organization $1.5 million over the past five years. Jennifer Nolan, another RBF trustee, is a “passionate environmentalist” who earns a living as an environmental activist. Justin Rockefeller, a third RBF trustee, is a venture partner at Richmond Global, LLC, a company making investments in alternative energy compatible technologies. The RBF funded the effort to bring together the lawyers and states that oppose traditional energy and are the critical partners in a RICO action.

One lawyer, Matt Pawa, is an environmental attorney who works with the Climate Accountability Institute and the Global Warming Legal Action Project of the Civil Society Institute. He has failed repeatedly in his civil climate change tort claims against hydrocarbon companies and is still looking for a way to hit it big in a legal settlement. He is a pay-for-play lawyer who wants to replicate the Tobacco Settlement litigation. He participated in a panel discussion hosted by the extreme liberal American Constitution Society at which Sharon Eubanks spoke.

Ms. Eubanks headed up the Tobacco litigation and has profited significantly therefrom. Eubanks claimed that RICO could be applied to hydrocarbon companies and anyone who received grant support from them and anyone who agreed with them on the issues and anyone who denied anthropogenic climate change or anthropogenic global warming (“ACC” or “AGW”). She also admitted the facts necessary to bring a claim were not in hand and that the Department of Justice was unlikely to undertake a RICO investigation, something RICO authorizes DOJ to do before filing a complaint. This is why the State AGs were necessary. They could undertake the investigations. Pawa gets no traction for his legal efforts unless he can get a government to conduct an investigation that would hopefully find the facts needed to litigate.

Another law firm, working for the Virgin Island AG, is Cohen Milstein, a group Exxon claims is probably working on a contingency fee that only pays off if there is a big settlement. Exxon has pointed out that Cohen Milstein’s contingency fee contracts in other related cases include a startling pattern of alleged misconduct and misrepresentation by the firm and its co-counsel in fabricating plaintiffs and claims, bribing witnesses, and making false statements to the court and others. This suggests that Cohen Milstein cannot be the neutral, disinterested prosecutor required by due process under both state and federal constitutions. They are the tool the AGs have decided to use.

But, there is no plan to seriously litigate. As Professor G. Robert Blakey, a RICO consultant to the U.S. Department of Justice on the tobacco lawsuit, explained, these extortionate law suits are “made to settle,” they are not made to win.

This political and financial greed of the “green 20” and their investigations have ramifications. As Peggy Little with the Federalist Society explains, this is an attack on “core constitutional commands of free speech, limited and constitutional government and the rule of law. This latest incarnation of regulation by litigation which seeks to punish climate change wrongthink has crossed a line that lies at the core of the First Amendment—a government imposing its orthodoxy upon its citizens. Some 29 state Attorneys General agree with her and have castigated their 20 brethren for the RICO investigative effort.

Ms. Little also reminds us of the U.S. Supreme Court’s position on such action: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

The self-serving nature of this RICO nonsense is also another attempt to shift attention away from the need for open scientific discussions on climate science. Alarmists refuse to participate in these necessary discussions. Some alarmist scientists even refuse to appear on the same stage with their peers for such a discussion and others are demanding that the news media refuse to report on scientific work that documents the scientific weakness of climate alarmism.

The Virginia legislature has a role in this latest RICO scam. They need to hold hearings and have the Virginia Attorney General justify his participation in a group that is attacking the foundations of free speech and sound science.

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George Mason’s Battle over Scalia’s Name and Legacy

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There are only a few prestigious outposts of free-market thought in the world of higher education. The Hoover Institution at Stanford comes to mind, as does the University of Chicago School of Economics. Then there are two gems at George Mason University — the Mercatus Center and the George Mason School of Law.

Mercatus scholars opine on economic issues with an emphasis on fiscal conservatism and free-markets, while the School of Law is renowned as a center of the discipline of “law and economics,” which applies microeconomic theory to the analysis of the law.Mercatus has come under scrutiny for its support by free-market industrialist Charles Koch, the very mention of whose name sends progressives into paroxysms but until recently, the school of law had escaped vilification. But that’s all changed since $30 million in donations from the Charles Koch Foundation and an anonymous donor would rename the law school in honor of Supreme Court Justice Antonin Scalia.

Various schools, centers and institutes in higher education across the country are named in honor of liberal, progressive and Democratic icons, but the thought that a single law school being named after a conservative paragon is too much for some to bear. Last week, GMU’s faculty senate passed a resolution expressing “deep concern” about the gifts and the renaming of the school in honor of Scalia.

Faculty members objected to memorializing a Supreme Court Justice who contributed to the “polarized climate in this country that runs counter to the values of a university that celebrates civil discourse” and worried about external branding of the university “as a conservative institution.”

Furthermore, the faculty senate said the administration had failed to disclose the terms of the gifts that would provide funding for 12 new faculty, additional staff and support for two new centers for a ten-year period, and wondered what long-term liability the university might incur from these new commitments.

The controversy has gotten considerable press in the Washington area. Some were quick to play the race card. Washingtonian magazine, for instance, gave prominent attention to the remarks of the president of GMU’s Black Law Student Association, who called Scalia “a borderline racist who’s made terrible comments” referring to affirmative action. Such an action, she said, would only contribute to a feeling of “isolation” in a student body that’s only four percent black.

But GMU President Angel Cabrera stood firm in a letter responding to the faculty:

Agreement with his views is, however, not the reason why we are renaming the law school for Justice Scalia. We are not endorsing his opinions on any specific issue. We are recognizing a man who served our country at the highest level of government for 30 years and who many experts of diverse ideological persuasions—from faculty colleagues in our law school, to his peers on the Supreme Court, to the president of the United States—consider to have been a great jurist who had a profound impact in the legal field.

Many Don’t See the Recession as Over

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Has the recession ended?
That’s a question I get asked frequently from audience members before or after I start a presentation about the economy.But in the past month, I decided to ask that question to audience members.
About 5 percent of an audience of business people and educators in the Fredericksburg area thought we were still in recession.
At a different meeting, more than half the audience of relocation professionals from around the state believed the recession hasn’t ended.
The recession officially ended in June 2009, according to the National Bureau of Economic Research, the official arbiter of recession dates.
The soft labor market may be influencing some people to think the recession has not ended.
While the unemployment rate in the nation was a fairly low 5 percent in March, a broader unemployment rate — which takes into account people who are working part time but prefer full-time work or are not currently looking for work but have worked in the past 12 months — stood at 9.8 percent.
Perhaps more unsettling, more than 2.2 million people, or 27.6 percent of those unemployed in March, have been trying to find a job for more than half a year. Before the recession, you have to go back to 1984 to find more than 2.2 million people unemployed for a half year or more.
Consumers’ view of the economy also may be colored by the condition of the industry in which we work.
Relocation professionals, who help individuals move to new jobs and regions around the country, are likely affected by the soft labor market as well as the lower level of real estate activity.
Even though existing-home sales have risen, they remain 25 percent below the pre-recession peak.
On the positive side, nonfarm employment has been steadily growing while fewer people are being laid off, based on declining initial unemployment claims.
Almost two years ago, in May 2014, employment in the nation began to exceed its pre-recession peak of 138.4 million. An additional 5.2 million jobs have been added since then.

Des Moines Water Works’ Law Suit Could Impact VA Farmers

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The Des Moines Water Works (DMWW)filed its latest legal response on Friday, May ,5 claiming Iowa Drainage Districts do not have an agricultural stormwater runoff exemption for water discharged from drainage tiles. The Clean Water Act (CWA), however, is specific and makes it clear runoff water from agricultural fields is not a point source under the CWA and requires no federal NPDES permit.

The 66-page opposition brief states “…there can be no regulatory basis for concluding that all agricultural drainage is nonpoint.” DMWW argues that agricultural stormwater drainage that is collected and channeled by the drainage districts are point sources, not nonpoint sources under the CWA.

The Iowa drainage districts, in their brief, have demonstrated clearly that agricultural drainage is a nonpoint source.

DMWW appears to lack understanding of agriculture and nonpoint source pollution (NSP). In fact, it says in its brief that even EPA seems to be “confused” on what is NSP.

EPA declares “NPS pollution is caused by diffuse sources that are not regulated as point sourcesand normally is associated with agricultural, silvacultural and urban runoff, runoff from construction activities, etc…”

Pretty simple!

DMWW’s main argument is the agricultural stormwater runoff exclusion does not apply to drainage districts with tiles. It spends pages arguing the CWA’s core command is to prohibit discharges of pollutants from point sources. It claims there has been inaction by EPA and the State of Iowa for 40 years.

DMWW further claims that by not regulating drainage district tiles there will be open neglect of public health and safe clean water. It claims “…regulatory inaction does not change the statutory landscape. The time has come to address pollution from drainage and to apply the ‘core command’ of the CWA to the drainage districts as the statute dictates.”

The only problem with this expansive statement is that it is wrong. Congress and the courts have made it clear nonpoint source runoff pollution from agriculture is exempt from the CWA’s regulation of point sources. EPA, on its webpage, describing what is a nonpoint source, declares “Nonpoint source pollution generally results from land runoff, precipitation, atmospheric deposition, drainage, seepage or hydrologic modification.”(It appears DMWW lawyers do not understand the terms drainage, seepage and hydrologic modification.)]

The DMWW brief incorporates many arguments, but the key is that it argues that agricultural stormwater does not include the discharge of groundwater. One is puzzled to figure out that stormwater does not seep into the ground and become groundwater. In fact, DMWW claims that stormwater is water that is not absorbed by the soil and only moves across the surface of the land. It claims “This does not include the groundwater that carries nitrate pollution.” DMWW would gut the agricultural stormwater discharge by saying only sheet flow on your farmland is exempted by the agricultural stormwater exemption. DMWW’s brief claims that it is undisputed that the discharge of nitrate is created by groundwater and not by stormwater.

Clearly the writers of the brief have no understanding of the amount of natural nutrients in the soil and that nitrates would be discharged without any addition of inorganic nitrogen to grow crops.
The brief describes EPA’s efforts in 1973 to exempt agricultural runoff from CWA permitting and how the courts reversed EPA’s action and declared discharges from agriculture could be point sources. Congress quickly corrected the court’s error. DMWW virtually ignores Section 319 of the CWA, which specifically deals with nonpoint sources of pollution. Section 319 explains how the states are to control nonpoint source pollution and virtually no one recognizes Section 319 allows the states to develop their own “regulatory” program to control nonpoint sources. Section 319 even requires the Attorney General of a state to sign off on whether there is sufficient regulatory authority by the state to control nonpoint sources.

DMWW essentially argues the drainage districts’ pipes and ditches are not nonpoint sources and do not enjoy the benefit of agriculture’s stormwater runoff exemption. DMWW argues that because agricultural stormwater is channeled through a drain, it automatically becomes a point source. This argument has been tried numerous times and has failed.

It is now up to the court, once again, to protect the agriculture stormwater runoff exemption. /p>
(This article first ran in Farm Futuresn May 9, 2016)

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We Don’t Need Taxpayers’ Billions To Prevent Zika

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By Paul Driessen and Robert Novak

We Don’t Need Taxpayers’ Billions To Prevent Zika

The Zika virus is increasingly linked to serious neurological complications for pregnant women and microcephaly in newborns: smaller than normal heads and brains. It also affects areas of fetal brains that control basic muscular, motor, speech and other functions, leading to severe debilities that require expensive care throughout a person’s life.

The disease is becoming a crisis in Brazil, site of this year’s Summer Olympic Games. But cases continue to be reported in the United States, primarily among women who have traveled abroad, and Zika is reaching serious levels in Puerto Rico, other US territories, and many parts of Central and South America.

Stopping its spread is an urgent public health matter. President Obama has asked Congress for $1.9 billion in new funding, to find better diagnostic tests to detect Zika, develop a vaccine against the virus, and control the mosquitoes that are the primary vector for the vicious virus.

Not surprisingly, the request has spawned new budget battles in Washington. The White House and congressional Democrats want to spend new money, while Republicans insist there is already plenty of money in the budget, plenty wasted that could be better allocated, and plenty being spent on climate change and other programs that have a far lower priority than this public health menace.

Other observers say Zika is being used as another opportunity for government agencies to expand their budgets, personnel and empires. Certain agencies, they note, are blaming “mosquitoes” in general and even climate change, or promoting high-tech “solutions” that may never work and will take years to develop, test and employ on national or global scales.

Meanwhile, much can be done right now, to reduce mosquito populations and slash the incidence and spread of this disease, for far less than $2 billion. It requires smarter policies, more focused efforts.

Zika is not spread by generic “mosquitoes.” Its primary carrier is a very particular blood-sucker with unusual habits and habitats. Aedes aegypti is known as the yellow fever mosquito, because it is the principal avenue for spreading that nasty disease, which causes fevers, chills, nausea, muscle pains, and liver and kidney damage. A vaccine exists, but yellow fever still kills up to 30,000 people annually.

Ae. aegypti also spread dengue fever, another painful, debilitating disease that can recur for years; there is no vaccine, and it sickens nearly 100 million people a year, killing some 25,000.

The flying killers also infect people with chikungunya, which often causes severe fever, headaches, muscle and joint pain, rashes and other non-lethal problems.

These mosquitoes were nearly eradicated, especially in Brazil, during the 1960s. Unfortunately, control bred complacency, and Ae. aegypti is again a dangerous scourge in Brazil, other South and Central American countries, Puerto Rico, Caribbean islands, Africa and Asia.

Their potential range includes the southeastern United States and southern Europe, they are actually found in some of these southern US states and Hawaii, and some do carry Zika and other diseases. All these diseases can infect blood supplies, making transfusions risky and necessitating that blood be imported from safe locales that may not have sufficient supplies themselves.

Summer Olympics fans and athletes could get infected and carry these diseases from Brazil back to their home countries. Thousands of other travelers could also spread all these diseases. The prospect has health officials worried. However, Ae. aegypti’s habits offer opportunities for controlling them.

They live close to houses, rarely fly more than 80 feet from where they hatch, bite during the day, and hatch from eggs laid in tires, cans, jars, flower pots, vases, bromeliads, holes in trees, and almost any other containers that hold water, indoors and outdoors, in backyards and junkyards.

That means national and international health ministries, neighborhoods and individual families can undertake simple, low-cost actions that will bring rapid, significant returns with limited time, money and resources – by eliminating mosquitoes and keeping them away from people. They should start now.

1) Educate politicians, local leaders, teachers, neighborhood organizations and citizens about the dangers posed by mosquitoes and the diseases they carry – and about what they can do to help. Launch and coordinate home and neighborhood programs, and stress why they must continue well into the future.

2) Destroy Aedes aegypti reproduction habitats. Remove trash, especially containers. Punch holes in tires and cans, so they cannot collect water. Fill in other standing water areas with dirt. Augment these actions with larvacides and insecticides.

Used properly, today’s larvae and adult mosquito killing chemicals are safe – especially compared to the misery, death and long-term care that Ae. aegypti and other mosquitoes spread. Centers for Disease Control, National Institutes of Health and other studies have determined that the most commonly used larvicides (BTI and Temephos, aka Abate) are safe for humans and mammals, even in drinking water.

3) Prevent mosquito bites, to break the disease transmission cycle. This is especially important for people attending the Olympics or vacationing where problems exist. You don’t want to take diseases home.

Use personal insect repellants, preferably those containing DEET, even while indoors, and keep skin covered with clothing. To keep mosquitoes out of homes, make sure doors and windows have screens. For homes without screens, spatial repellents like DDT can be sprayed on walls and doorways.

4) Employ cell phone GPS systems to locate and monitor mosquito populations, and significant biting and disease outbreaks. Every citizen can help with this. Tie these efforts into local or national databases – and into monitoring and surveillance programs that can dispatch rapid response teams.

5) Test people for antibodies, especially pregnant women, to determine whether they have Zika or other mosquito-transmitted diseases. The RT-PCR test can find Zika proteins and genetic material in people, and in the brains and placentas of infants and miscarried fetuses. It can also rule out dengue, yellow and chikungunya fever viruses. Developing better, more rapid detection tests will be money well spent.

This multi-pronged approach is true “integrated vector and disease control.” It will bring rapid returns.

Nonetheless, at least two high-tech, non-chemical “solutions” have been proposed. They involve releasing male mosquitoes that have been sterilized by radiation, so they cannot mate successfully – or genetically modified so their progeny die before reaching maturity.

At least one experimental GMO effort has been field-tested, somewhat successfully, with gradual but noticeable reductions in mosquito populations in test areas. Since male mosquitoes don’t bite, releasing them into urban areas should pose few health risks. The concepts have researchers, technocrats and bureaucrats salivating over potential budgets and personnel increases.

However, field tests are just that: tests. The experimental programs must still survive long US Food and Drug Administration and Agriculture Department approval processes, budgetary constraints, anti-biotechnology and anti-radiation activism, and similar delays at the international level.

Neither approach can help in the near term, across the sprawling Rio de Janeiro Olympics venues, urban areas and shantytowns – or across millions of square miles in Latin America, Africa, Asia and beyond.

We cannot afford to deemphasize or shortchange the less sexy, but proven, highly effective, truly integrated vector and disease control programs described above. These strategies can and must be employed now, to eliminate Aedes aegypti mosquitoes and the horrible diseases they spread.

They will save lives now – in time for the Olympics, before these bugs and diseases claim more victims.

———————–

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Paul Driessen is senior policy analyst for the Committee For A Constructive Tomorrow and a veteran of anti-malaria campaigns.

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Robert J. Novak is professor of medicine and infectious diseases at the University of South Florida in Tampa.

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Jefferson Policy Journal

The Virginia Attorney General Joins in Scam Threatening Free Speech

George Mason’s Battle over Scalia’s Name and Legacy

Many Don’t See the Recession as Over

Des Moines Water Works’ Law Suit Could Impact VA Farmers

We Don’t Need Taxpayers’ Billions To Prevent Zika

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