The Smog of War

The climate bill may be dead, but that doesn't mean opponents of clean air rules are resting on their laurels. A bipartisan group of senators is lobbying the Environmental Protection Agency to put the brakes on new rules that would protect the public from harmful ozone pollution, better known as smog.

In January, the EPA proposed tough new rules on ozone, tightening the controversial Bush-era standards that left the public exposed to hazardous levels of pollution. The final rule was expected out by the end of this month, though it doesn't appear to be ready yet; it has not yet been sent to the White House Office of Management and Budget, which reviews rules before they can be finalized, according to reports.

But a group of seven senators, lead by Ohio Republican George Voinovich and Indiana Democrat Evan Bayh, is pressuring EPA administrator Lisa Jackson to hold off. The Bush administration issued their standards less than two years ago, the senators argue, and such rules are typically updated only every five years. (The senators fail to mention in their letter to the EPA, however, that the Bush-era rules were set far weaker than the EPA's own experts recommended.)

"We believe that changing the rules at this time will have a significant negative impact on our states' workers and families and will compound the hardship that many are now facing in these difficult economic times," they wrote.

Democrats Mary Landrieu (La.) and Claire McCaskill (Mo.), and Republicans Richard Lugar (Ind.), Kit Bond (Mo.) and David Vitter (La.) also signed onto the letter to EPA.

Complying with the current standards has been "costly" for businesses and has "greatly restricted the ability of local communities to grow their economies," they continue. "This is unacceptable."

But tougher standards are a critical public health issue. The American Lung Association estimates that up to 186 million people in the United States are breathing unhealthy levels of smog due to the weak rules currently in place. "People are literally getting sick and dying from high ozone levels," said Frank O'Donnell, president of Clean Air Watch. "But these soon-to-be-retired senators just want to play politics." (Both Bayh and Voinovich are retiring this year.)

This isn't a huge surprise; big emitters were already trying to use the climate bill as a vehicle to undermine other clean air standards. Major energy companies like Duke and American Electric Power have asked the EPA to drop the new standards in comments on the proposed rules.

Meanwhile, the EPA hasn't actually issued the final rule. O'Donnell said it is "very troubling" that the agency does not appear on track to finalize the rule this month as previously indicated.

Peggy Noonan's weekly attempts at sounding both deeply wise and gravely troubled have about the same effect on me as nails on a chalkboard, so I don't usually read her columns. But I did today, and this passage struck me:

The country I was born into was a country that had existed steadily, for almost two centuries, as a nation in which everyone thought — wherever they were from, whatever their circumstances — that their children would have better lives than they did....Parents now fear something has stopped....They look around, follow the political stories and debates, and deep down they think their children will live in a more limited country, that jobs won't be made at a great enough pace, that taxes — too many people in the cart, not enough pulling it — will dishearten them, that the effects of 30 years of a low, sad culture will leave the whole country messed up.

The reason it struck me is that I agree but — unsurprisingly — for an entirely different reason than Noonan's. It's not high taxes (which are lower than any time in recent history) or social changes (which have been overwhelmingly positive) that bother me, it's the fact that we increasingly seem to be led by a social elite that's simply lost interest in the good of the country. They were wealthy 30 years ago, they've gotten incomparably more wealthy since then, and yet they seem to care about little except amassing ever more wealth and endlessly scheming to reduce their tax burdens further. Shipping off our kids on a growing succession of costly foreign adventures is OK, but funding healthcare or unemployment benefits or economic stimulus in the midst of a world-historical recession is beyond the pale.

So yeah: when Noonan says of our political leaders, "I think their detachment from how normal people think is more dangerous and disturbing than it has been in the past," I agree. But where she sees social breakdown and anomie, I see something more like the patrician thugocracy of Rome, dedicated to ever more sybaritic pleasures and blithely willing to suck the marrow out of the vast middle class in order to get it.

Apocalyptic? Yes! What's more, Scott Winship says our entire premise is wrong: polling suggests that parents still think their kids will have it better than they do. He's got a raft of polling results to back this up, and they roughly show that in good economic times parents are optimistic about their kids' future and in bad times they're pessimistic. Not exactly a startling result. And since we're in the middle of some very bad economic times, the Pew result above, showing that only 46% of parents think their kids will be better off than they are, is unsurprising.

But Scott's results only go back to the early 90s, and they bounce around a fair amount (the average seems to be around 55%). What I'm more curious about is what this looked like in the 50s, 60s, and 70s. Was optimism about our kids' futures substantially higher then? Or has it bounced around at 55% during the entire postwar period? Any polling gurus out there know if there's an outfit that's been asking this question for a long time and has decade-long trends to show us?

UPDATE: I should probably be a little clearer here about what I myself think. Will our kids be better off than us? Almost certainly. Will they be a lot better off — as they should be given the likely economic growth of the next few decades? That I'm not so sure about.

New BP CEO Bob Dudley wasn't kidding when he announced last week that it was time for the company to scale back oil-spill cleanup operations. In fact, by the time he'd said that, the responder force had been drawn down by about 25 percent.

On July 13, the Deepwater Horizon Joint Command was reporting 46,000 responders. On July 23, it was down to 30,000, and the numbers have hovered around the low 30s since. Included in this tally are some Coast Guard and National Guard staff, but BP and subcontractors comprise the vast majority. (I've been trying to get the exact breakdown from the Coast Guard for four days, but to no avail, and BP said it didn't have it on hand, though the Coast Guard has told me it just reports BP's numbers.) In Grand Isle, Louisiana, cleanup workers (none of whom can be named; you know this drill by now) say their coworkers were either told to go home for Tropical Storm Bonnie and then never called back or fired in a massive and sudden drug test.

"Friday, the day before Bonnie, they sent a bunch of people home until further notice, and a lot of people didn't get the further notice," one supervisor told me. "Then last week, they shut the whole [cleanup operation] down. It was 'Piss in a cup or throw your ID in the bucket.' This was a BP drug test, not a [subcontracting] company drug test. It's the first time BP tested us."

A BP spokesman told me that all its subcontractors are required to drug test their cleanup employees and allow BP to do random checks itself; it just happened to do one of those checks last week. But the cleanup workers believe the company's motivation was to fire a bunch of people fast. Maybe it's because they're conspiracy theorists. Or maybe it's because the subcontractors had long had openly lax substance-abuse standards. "Most of those people had never been drug tested before," the supervisor told me. "I worked for two different subcontractors that didn't test me." He also pointed out that the local bar's parking lot is nightly full of company cars and drunk guys who drive them; one cleanup worker I met had a picture in his phone of beer cans in the cupholders of cleanup vehicles in broad daylight. "They wanted to get rid of people, and drug testing was a good way to do it. I used to supervise 30 guys; now I've got 10."

The scaleback is set to continue. Supervisors say they're supposed to break down to just a "skeleton crew" by the end of September, so hopefully the media myth that there's no more oil anywhere comes true. "Everything still changes day to day," the supervisor told me. "You don't know when a bunch of oil's gonna pop up."

Elena Kagan was only barely confirmed to the Supreme Court yesterday, continuing a recent trend of court picks becoming ever more partisan. Jon Chait comments:

Kagan’s meager tally is five fewer than Sonia Sotomayor last year, 15 fewer than John Roberts got in 2005 and pales in comparison to the 96-3 coronation of Ruth Bader Ginsburg in 1993. That trend has many legal observers lamenting a Supreme Court confirmation process on a steady trajectory toward complete polarization and a seemingly inevitable filibuster.

....And this has all taken place in a landscape where Obama has merely been replacing liberal justices with other, possibly less liberal, justices. Can you imagine what will happen if one of the five conservatives retires on Obama's watch? It's entirely possible that Senate Republicans will simply refuse to confirm any more justices, period.

So what happens if this becomes institutionalized? It means that no president with a Senate controlled by the opposite party will ever be able to place someone on the Supreme Court. So then what? Perhaps the new norm will become automatic recess appointments without even the pretense of a Senate hearing. And since recess appointments only last through the end of a president's term (assuming he continually reappoints his candidates at the beginning of each new Congress), this would place a premium on justices resigning only when a congenial president is in office (already a well accepted norm) and doing it early in his first term in order to give the new folks at least seven or eight years on the bench. Keep this up for a couple of decades, and you'd essentially end up with a system in which incoming presidents replaced virtually the entire court during their first year.

Needless to say, no one would like this system much. But it's the inexorable end game unless something changes. So perhaps some change is in order?

Xinhua/zumapress.comXinhua/zumapress.comPeter Diamond, one of Barack Obama's nominees for an empty Fed seat, was "sent back" by the Senate yesterday. But what does that mean, anyway? BusinessWeek explains what happened after Diamond was approved last week by the Senate Banking Committee:

Under Senate rules, all nominations that aren’t completed before a lengthy recess go back to the White House and have to be resubmitted unless the Senate unanimously agrees to hold onto them and act later, Stewart said. Routinely, the Senate does agree to retain the nominations.

If a single senator objects, the name goes back to the president’s office. In Diamond’s case, at least one senator did that. Stewart said he didn’t know the identity of the lawmakers.

Italics mine. So yet another Senate norm gets tossed on the ash heap of history. Nice work, Republicans. As an aside, note that the "Stewart" in the passage above is Don Stewart, a spokesman for Senate Republican Leader Mitch McConnell, and the proposition that he doesn't know who held up Diamond's nomination is pretty unlikely. It was Richard Shelby, the increasingly cranky senator from Alabama who, as near as I can tell, is still nursing a farrago of grievances over the fact that Senate Democrats weren't willing to capitulate completely to his notions of how the financial reform bill should have looked. His reason for opposing the noted MIT economics professor? "I do not believe the current environment of uncertainty would benefit from monetary policy decisions made by board members who are learning on the job," Shelby said mysteriously, and it's true that Diamond isn't an expert on macroeconomics — though Wikipedia tells me that he is an expert on government debt and capital accumulation, capital markets and risk sharing, optimal taxation, search and matching in labor markets, and social insurance. In any case, last night I decided to go to bed rather than investigate this further, but today Matt Yglesias provides the requisite googling:

Governor Kevin Warsh, who George W Bush appointed in 2006 to no controversy, is 40 and has a JD but no advanced degree in economics or academic research in the field at all. Elizabeth Duke who Bush also nominated and who Shelby doesn’t seem to have a problem with has no advanced degree in any subject and has a bachelor’s degree in drama. Daniel Tarullo, who Barack Obama appointed and who was confirmed with no controversy, has a JD and a MA, but again no PhD. Sandra Pianalto, President of the Cleveland Fed, has an MBA and a MA but no PhD.

Not that there needs to be a rule that FOMC members should have PhDs in economics. But the point is that Diamond would clearly raise the level of macroeconomic expertise on a board that’s currently dominated by bankers and bank regulators.

So Shelby is, to use a technical term, just being a prick. Diamond is perfectly well qualified, but apparently has views (for example, that deflation is bad and Social Social Security taxes should go up) that Shelby doesn't like. So he's going to force Obama to renominate him just because he can. Ladies and gentlemen, the United States Senate. Greatest deliberative body in the world. Don't let anyone tell you otherwise.

The Labor Department's monthly numbers are out, and it's mostly dark clouds in the jobs world. The unemployment rate remains 9.5 percent. The public sector shed more than 200,000 jobs in July, most of which were expired Census gigs. The ratio of employed Americans to the adult population dwindled slightly, but for did so for the third month in a row—a troubling sign. And the real unemployment figure—accounting for unemployment, underemployment, and discouraged workers—is stuck at 16.5 percent.

A silver lining: The private sector added 71,000 jobs in July, which, as Ezra Klein points out, is the most since April and third-best in 2010. He adds optimistically, "The 71,000 jobs we did gain came from the right place, and the jobs we lost are job losses we can prevent if Congress finds the will and the votes."

That optimism don't appear to shared by most other observers, nor backed by the Labor Department's data when you dig deeper in. For instance, the Labor Department went back and revised its jobs figures for June, reporting that 267,000 jobs were lost instead of 125,000 as initially thought. That's a major revision—and further proof that the economic recovery is far weaker than already thought.

Although the unemployment rate didn't budge, that's not because the jobs picture is getting rosier. Rather, people are still leaving the work force, quitting their search for a new job. As Zero Hedge points out, the employment-to-population ratio is the same today as it was in October 1983, per this chart:

Via Zero Hedge.Via Zero Hedge.

When the jobs picture finally begins to improve in earnest, those same people, encouraged by the positive signs they see on TV or read in the papers, will begin looking for work again. As a result, the jobless rate could inch even higher.

Meanwhile, the ranks of the long-term unemployed—out of work for six months or more, but still looking—remain at near-record levels, at 6.6 million, or 45 percent of all unemployed. That's still a staggering number.

All in all, this is more bad news for the Obama White House and Congress, especially the downward revision for June. It's telling that Christy Romer, the White House economic aide now on her way out the door, downplayed today's report: "It is important not to read too much into any one monthly report, positive or negative."

Yes, Congress' efforts to send more fiscal aid to state governments and small businesses (though the math behind the latter is somewhat flawed) are urgent and necessary, it's up to private employers right now to get the Great American Jobs Machine chugging along again. Many private employers have the money to increase hiring, but are spooked by new regulations or the instability of the economy and remain on the sidelines. We won't get growth until they start opening their doors again.

Bummed about the Senate dragging its feet on climate? There's a new report out from the Presidential Climate Action Partnership that outlines five big things the Obama administration can do on climate before the next big United Nations climate meeting in Cancun this November.

"Climate Action Without Congress: How Obama Can Take Charge," offers some cause for optimism, should the Obama administration, you know, actually do these things. Here are their reccomendations, which we should probably do anyway even if the Senate gets its act together.

1. "Work with states and local governments to create a national roadmap to the clean energy economy."

One of the biggest points of contention throughout the debate over climate policy in the past year has been whether or not to take away the authority of states to set their own, more aggressive climate and energy policies. Aggressive states—like California—have paved the way for national policy. More than 30 states have or are in the process of finalizing their own climate action plans. Twenty-nine states and the District of Columbia have a renewable electricity standard in place. There are already two regional cap-and-trade systems in place in the US, the Western Climate Initiative and the Regional Greenhouse Gas Initiative, covering 16 states between them.

"Rather than curtailing state authority, pre-empting state authority, as some in Congress have proposed, we need to encourage it," said Bill Becker, executive director of the Presidential Climate Action Project.

2. "Declare a war on energy waste."

The American Council for an Energy Efficient Economy finds that the US economy wastes 87 percent of the energy it uses. By instating the most basic, cost-effective energy efficiency measures, like retrofitting building stock or improving transmission lines, the US could cut energy consumption by 23 percent, save $680 billion by 2020 and avoid 1.1 gigatons of greenhouse gases. The PCAP recommendations call for setting a goal of making the US the most energy-efficient nation in the world by 2035. It also calls on the Department of Energy to set sector-specific energy efficiency targets.


US Army Staff Sgt. Clarence Washington, Provincial Reconstruction Team Zabul security forces squad leader, takes accountability after an indirect fire attack in Qalat City, Zabul Province, on July 27, 2010. Photo via the US Army by Sr. Airman Nathanael Callon.

"Net neutrality" is a principle that's guided internet development for decades. Put simply, it means that everyone has equal access to the net. If you send an email to Aunt Martha, it has the same priority as my Google search for Lady Gaga videos or Rupert Murdoch's latest multibillion dollar internet television startup. Data is data, and it all goes over the net equally quickly.

But net neutrality has been under attack from years. The battle lines shift, and sometimes get a little too complex to follow in detail, but the outline is pretty simple. Companies in the content business generally support net neutrality. They want their data delivered as fast as anyone else's without having to pay any special fees. Conversely, companies like Verizon or AT&T, who supply the pipes, want it to go away. They love the idea of being able to charge higher fees for better service.

During the Bush era, the FCC began to back off on net neutrality but still issued a set of "principles" that it expected service providers to adhere to. Then, last April, a court ruled that the FCC had no authority to regulate net neutrality at all. A month later, FCC chairman Julius Genachowski announced that he would try to reclassify internet providers in order to re-impose net neutrality rules on them, but this is a regulatory process that will take, at a minimum, months to complete.

In the meantime, net neutrality may be on the verge of unraveling completely. Google, once a fierce advocate of net neutrality and a company whose informal motto is "Don't be evil," has apparently decided that maybe just a little bit of evil is OK after all:

Google and Verizon, two leading players in Internet service and content, are nearing an agreement that could allow Verizon to speed some online content to Internet users more quickly if the content’s creators are willing to pay for the privilege.

....Such an agreement could overthrow a once-sacred tenet of Internet policy known as net neutrality, in which no form of content is favored over another. In its place, consumers could soon see a new, tiered system, which, like cable television, imposes higher costs for premium levels of service.

Any agreement between Verizon and Google could also upend the efforts of the Federal Communications Commission to assert its authority over broadband service, which was severely restricted by a federal appeals court decision in April.

The problem here is obvious: once Google does this, they set off an arms race. Can Yahoo or Microsoft really afford to be second class citizens? Or Disney or Fox? Not likely. Before long, pretty much every deep-pocketed content provider has signed a deal for special treatment and we officially have a two-tier internet. On one tier are the companies with money. On the other tier are all the rest of us. And make no mistake: if the major content providers get guarantees of better service, every other content provider will almost certainly end up with worse service than they have now.

I have a vested interest in this, of course, since Mother Jones isn't big enough or deep-pocketed enough to pay for top tier service, and that means that in two or three years delivery of this blog could end up pretty molasses-like. In a less parochial vein, I think the lesson of history is pretty clear: when common carriers are allowed to discriminate, the result is disastrous for everyone except the folks who currently dominate their market. If you have a startup search company that outperforms Google, but only if it's as fast as Google, well, what are the odds that Google won't pay to make sure that its service is always faster than yours? After all, ad revenue depends on getting eyeballs by hook or by crook, and it turns out they aren't quite as committed to not being evil as we once thought.

I'm not a net neutrality purist. I can see the case for offering tiered service for things like on-demand video streaming, which simply can't work commercially unless providers can guarantee reliable delivery. Beyond that, though, a free and open internet has worked pretty well and we abandon it at our peril. Time is running out on the FCC, and in any case, the FCC was never the right place for this anyway. Congress is. If we want to keep net neutrality in anything like its current form, Congress needs to get off its duff and set the rules of the road once and for all. Markey-Eshoo is a pretty good place to start.

It's kind of a banner week for queers, what with the overturning of Proposition 8. But what exactly is going to happen next? Meet Paul M. Smith, a lawyer who sits on the board of directors of the Lambda Legal Defense and Education Fund, an LGBT and HIV/AIDS rights organization, and the recipient of this year's Thurgood Marshall Award, a prestigious honor from the American Bar Association. I talked with him about how the Prop 8 decision could go horribly wrong, some other promising possibilities for landmark LGBT cases even if it does, and why you can thank him for the right to have gay sex in your own home.

MM: The Thurgood Marshall recognizes "long-term contributions by members of the legal profession to the advancements of civil rights and civil liberties and human rights in the United States." So you've obviously been working your ass off. Is there anything you think that particularly attracted this honor?

PS: I think it's fair to say that the Bar Association wanted to recognize somebody on behalf of the gay rights movement, because there hasn't been such a person yet winning this award. And I'm going to certainly accept it on behalf of a lot of people who have worked very hard in that area over the years. I've also done a fair amount of work on free speech over the Internet and more recently free speech for video-gamers, and voting rights.

MM: Tell me more about Lawrence vs. Texas, a Supreme Court case you argued and won. 

PS: There were these things called sodomy laws, under which even if you were in your private home with your partner you could be arrested and taken to jail for having sex. And these were not very often enforced directly, but more often were used as a basis for oppression of people indirectly. So they would take your children away if you got into a divorce situation and they found out that you were having gay sex. Or they'd fire you from a job if they found out you were breaking the law by having a partner. And then there was a case back in the '80s called Bowers vs. Hardwick, which upheld the constitutionality of sodomy laws, and it basically was used to justify all sorts of forms of discrimination against LGBT people.

There was a long effort made to chip away at sodomy laws in the state courts, and then finally the perfect case came along in Lawrence, which was two guys dragged off to jail in the middle of the night out of their home—out of one of their homes—and arrested and prosecuted. And so we worked with Lambda Legal to take it to the Supreme Court and fortunately the court did a good job. Those laws were gone, and there's now all this wonderful legal reasoning about how same-sex relationships are worthy of respect, and function the same way in people's lives as heterosexual marriages. And this in many ways was the foundation on which a lot of the progress on marriage issues has proceeded since.

MM: So no one has been prosecuted under sodomy laws since that case?

PS: Well, not for anything like private, consensual sodomy. I mean, if you get arrested in public that'd be one thing. But in terms of those sodomy laws, they've all been held unconstitutional across the board, across the country, because of the one case.

MM: There are a couple of things that I think are really interesting about Lambda. One is that there's this strategy of not just waging campaigns in actual, literal courtrooms but also in what they refer to as "the court of public opinion." And it seems like the latter could have hefty influence on the former.

PS: Right. These are two efforts that are very often closely coordinated together. So, for example, in Iowa, where we were in the process of winning the big marriage victory there, when the Iowa Supreme Court unanimously ruled there's a state constitutional right in Iowa to same-sex marriage, there was a huge education effort to kind of make sure that the population of Iowa reacted in a relatively positive way and they didn't try to overturn it, as occurred in California.

MM: What's your reaction to Prop 8 being declared unconstitutional?

PS: It was expected that that's where the judge was going based on the questioning of the arguments. And I would say that he did a really fine job of writing up the reasoning and the factual underpinnings of his decision. It really is a very strong foundation for going up on appeal, and it's actually quite a good case to be citing in a lot of other cases. It really is about as good as it could be from the point of view of those who think Prop 8 should be held unconstitutional.

This case says that Proposition 8 violates the federal constitution. And the reason that's significant is that the other marriage cases, from Massachusetts to Iowa to Connecticut, Vermont, those were all cases brought against state constitutions, which meant that the states had the final say on what the law was and you couldn't take the case to the US Supreme Court. But this case is a federal case, which means they're saying everyone in the United States has a federal right to choose a same-sex spouse. And so the case could go to the US Supreme Court, and you might have national marriage rights across the board.

MM: Are you hopeful for that outcome?

PS: Well, I worry that it's a risky way to go, because there's obviously a big upside and big downside. But we're all working to help it be litigated as practically as possible.

The first issue's going to be whether or not it's stayed pending appeal, which is to say, will there be weddings going on in a week or whether the whole thing will be put on ice while the appeals go forward. If the judge decides not to stay it, there will be immediate requests for a stay from the court of appeals and ultimately, if necessary, the Supreme Court, so that's what's going to get fought out in the next few days. And then they'll file a notice of appeal, and that process takes its own sweet time, particularly in the 9th Circuit out here.

MM: When you say "sweet time..."

PS: It'll take at least a year. Could be two years. And then another issue is, if people are getting married, and it reverses, what happens to all those marriages? It's a little like what happened with Proposition 8, but they avoided those issues by interpreting it as not being retroactive. In this situation, it would be very messy. You'd have to figure out whether marriages that occur because of an erroneous decision are still in effect. That's complicated legally—and obviously difficult emotionally for people. I think there are fairly solid arguments for staying it, but it remains to be seen what will happen.

MM: And you're working on another case, in Massachusetts, that's challenging a provision of the Defense of Marriage Act that says the federal government won't recognize gay marriage even if a state does.

PS: I'm working with the lawyers in Boston on it, and it was just held unconstitutional by the Federal District Court up there. So that case could also go to the Supreme Court. We're gonna have an appeal start very soon. It's quite a different issue: This is about people who are already married having rights to Social Security and joint filing of tax returns and that sort of thing.

MM: And one of these cases going to or winning or losing in the Supreme Court doesn't preclude the other doing so.

PS: No, they don't. You could win in one and lose in the other. I could certainly imagine a world in which we could win in our case, and have the courts say, "If a state has decided to marry them, then the federal government has nothing to say about it—they should treat them as married," but not say, "You have to marry people who wanna marry," which is what the Prop 8 case is about. Or, if Prop 8 were to be confirmed, then our case would be kind of easy. A lot of good things are happening. But we'll just have to wait and see what happens on appeal.