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Oil and gas leasing rejected in Wyoming because, well, climate change

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A federal judge has blocked drilling on roughly 300,000 acres of public land in Wyoming because the Department of Interior failed to take climate change into account when auctioning off the land for oil and gas leasing.

U.S. District Judge Rudolph Contreras ruled that officials from the Interior’s Bureau of Land and Management (BLM) should have considered climate change risks such as greenhouse gas emissions linked to the drilling before making the decision.

“By asserting that these crucial environmental analyses are overly speculative at the leasing stage and more appropriate for later, site-specific assessments, BLM risks relegating the analyses to the ‘tyranny of small decisions,’” Contreras wrote in his memorandum opinion.

In other words: Putting off decisions about climate impacts is no longer an option.

Under the National Environmental Policy Act of 1969, federal agencies must identify and understand the environmental effects of proposed actions, and inform the public of those effects so that its opinion could be involved in the decision-making process.

Failing to consider both environmental degradation and climate change in government policy has been a trend since the first day of the Trump administration. In just the past two years, we’ve seen shortsighted plans to boost the coal industry, withdrawal from the Paris Agreement, and attempts to roll back a slew of federal regulations on extraction of coal, oil and gas, and most recently mercury.

Just Wednesday morning, Environmental Protection Agency Administrator Andrew Wheeler told CBS This Morning that climate change’s effects were decades away, despite the fact that numerous scientific reports — including from his own government — contradict that assertion.

“Climate change is an important issue that we have to be addressing, and we are — but most of the threats from climate change are 50 to 75 years out,” Wheeler said. In fact, the impacts of climate change have been much more immediately evident in air quality in Texas, record-breaking flooding in Nebraska, and out-of-season wildfires in Oregon.

The judge’s decision is overdue pushback on the Trump administration’s policy of ignoring the climate impacts of its agenda. Now, BLM has to redo the environmental assessment with a more realistic view of our climate situation. Until then, Contreras will continue to block any leases.

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Oil and gas leasing rejected in Wyoming because, well, climate change

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North Dakota tribes issue thousands of IDs to stop voter suppression

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If North Dakota tribal members show up to the polls today without proper ID, indigenous leaders are determined to make sure they’re still able to exercise their right to vote.

The Supreme Court recently declined to hear an appeal of the state’s new, restrictive voter ID law, which requires the listing of a valid residential address. Since many tribal members use P.O. boxes, the law has the potential to disenfranchise a large portion of the state’s Native community. But organizations have been rallying to help tribal members meet the requirement, even as late as Election Day.

“It’s an absolutely critical election. We won’t sit quietly and let our people be denied their right to vote,” Standing Rock Tribal Chairman Mike Faith said in a statement.

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In the days leading up to the midterm election, indigenous leaders rallied to issue thousands of new ID cards for would-be voters. The campaign, dubbed #StandingRockTheVote, is the result of a partnership between several North Dakota tribes and nonprofit advocacy organizations fighting voter suppression. As of last week, the Standing Rock Sioux, Turtle Mountain Chippewa, and Three Affiliated Tribes had distributed more than 2,000 new ID cards to their members free of charge so that they won’t be turned away at the polls. Through a GoFundMe page, the group raised more than $230,000 for the initiative in 17 days. The Native American Rights Fund also donated $50,000.

“We are modeling how we can work together to ensure our Native vote is as a large as possible,” said Phyllis Young, an enrolled member of the Standing Rock Sioux Tribe and a field organizer for the coalition that is mobilizing voters.

Young is working alongside Four Directions, a nonprofit that supports Native voting rights, and Lakota People’s Law Project, which works to protect Lakota land and resources. Together they’ve devised a “failsafe” plan to make sure no native voters fall through the cracks on Election Day.

For anyone who still doesn’t have a qualifying ID when they show up to vote, tribal officials and volunteers will be present at polling places to issue documents on the spot that comply with voting laws. As long as voters in need of ID can verify their tribal membership and point out where they live on a map, officials will help them find a corresponding residential address and issue a letter verifying their eligibility.

Matt Samp, an organizer at Four Directions says his group successfully tested the method of issuing documents on the spot at the state auditor’s office last week. It’s a technique that hasn’t been tried before this year — and can work, in part, because North Dakota is the only state that doesn’t require voter registration.

“Our first effort has been getting people new IDs. We don’t want to have to use this letter one time, but if we have to we have it,” Samp said. “I shouldn’t have to be on the ground doing this, but that’s the law they made, so we’re complying with it.”

In 2016, members of the Turtle Mountain Band of Chippewa sued the state over the residential address requirement, arguing that the rule would disproportionately impact Native American voters who faced additional barriers to securing the necessary ID. Some critics contended that the law was aimed at suppressing the Native vote. Eighty-three percent of Sioux County, where the Standing Rock reservation is located, voted for Democratic candidate Heidi Heitkamp for in 2012. She ended up winning her Senate seat by just 3,000 votes, and her victory is largely attributed to the support she received from the indigenous community.

Daniel Hovland, chief judge for the U.S. District Court in North Dakota, initially ruled that the new voter ID law placed “excessively burdensome requirements” on the state’s Native American voters. That decision allowed people with mailing addresses on their IDs to vote in the primaries. But the state appealed, and a higher court sided with them this September, putting the restrictive law back into play for the midterm election. The Spirit Lake Tribe filed another suit in federal court asking for emergency relief from the mandate, but Judge Hovland denied their emergency request last week, on the grounds that such a last-minute change would cause “confusion.”

It’s unclear what the new law (and the efforts to issue new IDs to tribal members) might mean for the election. Heitkamp is running for reelection in a close race against Republican candidate Kevin Cramer. Although Heitkamp has been vocal about some issues important to tribes in North Dakota — like addressing the issue of missing and murdered indigenous women — she received criticism for failing to back Standing Rock opposition to the Dakota Access Pipeline. Heitkamp’s campaign website also says she supports oil and coal.

But just because of Heitkamp’s stances have left a sour taste with some Native American voters doesn’t mean they won’t show up at the polls. Because of the lengths Young, Samp, and others have gone to get out the vote, Native Americans are now expected to have a higher-than-normal turnout in the North Dakota election on Tuesday.

“We’re trying to turn a challenge into an opportunity,” says Daniel Nelson, Program Director at the Lakota People’s Law Project, adding that the sentiment on the ground is actually pretty jubilant. “Democracy is alive and well at Standing Rock.”

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North Dakota tribes issue thousands of IDs to stop voter suppression

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Can Oakland still stop the coal trains?

When a federal judge struck down Oakland’s ban on coal shipments this week, it represented a setback for environmental advocates. Nearly two years ago, the local city council had voted unanimously to keep coal out of a proposed redevelopment of the Oakland Army Base — pushing the argument over the dirty fuel source into the courts.

A quick survey of advocates in the wake of the new ruling indicates it is not a crippling loss. That’s because the proposed port to ship coal out of Oakland hasn’t been built yet, and the people who want to stop it have several more cards to play.

“It doesn’t mean we are going to have coal trains going through Oakland,” says Erica Maharg, managing attorney for San Francisco Baykeeper.

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Margaret Gordon founder of West Oakland Environmental Indicators Project, says that the port still faces a high hurdle in the form of mitigations for pollution from the new facility. If approved, the port would be built in West Oakland, a historically polluted, and historically African American, neighborhood. And those mitigations — Gordon would like to require zero-emission technology on all the equipment at the port and all the trucks and trains serving it — could be economically prohibitive.

“We knew we were going to have to have more mitigations, win, lose, or draw,” Gordon says.

On the other side, a representative for Phil Tagami, the port developer, says his client was “still digesting the decision and had no comment at this time.”

The current case was really about a contract between Tagami and Oakland. In his ruling, U.S. District Judge Vince Chhabria explained that the city made a deal with Tagami that it would not add any new regulations on port operations unless those new regulations were required to prevent a “substantial danger” to the people of Oakland. And, in his assessment, Oakland just didn’t offer the evidence to show that a coal ban was required to protect its residents.

Chhabria was scathing in his appraisal of the evidence Oakland presented: It was, he wrote, “riddled with inaccuracies, major evidentiary gaps, erroneous assumptions, and faulty analyses, to the point that no reliable conclusion about health or safety dangers could be drawn from it.”

That assessment came as a surprise to Earthjustice staff attorney Colin O’Brien, who worked on the case. “The science has long been unequivocal that fine particulate matter is harmful to human health,” he says. “I’m not sure that level of proof should be required of the city.”

Interestingly, San Francisco Baykeeper’s Maharg points out that Chhabria also explicitly opened the door to a defense of the coal ban with better evidence. The judge wrote that there may be sufficient evidence to prove that a coal port really is a health hazard, but the coal-ban advocates simply hadn’t presented it in court.

The coal-ban proponents could appeal the decision to the 9th Circuit Court, but they haven’t decided yet if they will do that. They have other options, and this ruling — which focuses narrowly on whether Oakland violated a contract — may not be the right hill to die on.

“In the big picture,” O’Brien says, “I’m not sure how much this decision matters.”

In that big picture, the West Coast is quickly turning into a coal blockade. As Jeremy Sussman, an analyst at Clarksons Platou Securities, told Bloomberg, “Most realists have come to the conclusion that West Coast states such as California, Washington, and Oregon simply aren’t going to allow a lot of coal exports now or in the future.”

This decision knocks a chink in that blockade, but it does nothing to change the political will that created it in the first place.

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Can Oakland still stop the coal trains?

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Fossil fuels are the problem, say fossil fuel companies being sued

Big Oil and the cities suing them in federal court agreed on at least one thing on Wednesday: Human-made climate change is real.

In the country’s first court hearing on the science behind climate change, a lawyer for Chevron, Theodore Boutrous Jr., said the oil company accepts the scientific consensus. He quoted chapter and verse from the reports of the International Panel on Climate Change, the thousands of scientists assembled by the United Nations to figure out exactly what’s going on. “From Chevron’s perspective, there is no debate about the science of climate change,” Boutrous said.

Oil companies have recently started saying they’re on the side of science, but they’ve never said it so clearly in court.

San Francisco and Oakland are suing BP, Chevron, ConocoPhillips, ExxonMobil, and Shell, arguing that the corporations that profit from fossil fuels should pay for the seawalls and pumps needed to protect them from rising tides. But Boutrous, the only oil company lawyer to speak at the hearing, didn’t accept blame, pointing the finger instead at the people who burned the fossil fuels. In other words, oil doesn’t cause climate change. People burning oil cause climate change.

For five hours, the two sides tried to explain climate science, after U.S. District Court Judge William Alsup had asked for a tutorial. A gaggle of 100-some attorneys, climate advocates, and journalists packed the mid-century-modern courtroom. Alsup strode into the room dressed for science, wearing a smart-looking pair of browline glasses and a tie decorated with images of the solar system.

In the run up to this hearing, journalists compared it to the Scopes monkey trial in 1925, which found a teacher guilty of telling students about evolution, but Alsup shot down such comparisons. “We have these tutorials so the poor judge can learn some science — it helps to have science,” he said in a soft southern accent.

The big question going into the hearing: Would the oil companies try to cast doubt on the evidence that their business model is heating the earth? Climate skeptics have been trying to make their voices heard by sending in friend-of-the-court briefs with their own spin on the evidence, but Boutrous stuck to the scientific consensus unveiling a deft bit of legal jiu jitsu that could form the core of the oil company argument as the case moves forward. Alsup would occasionally raise some climate-skeptic argument, and both sides would explain why it didn’t make sense.

Big Oil’s POV

Boutrous started by citing reports from the IPCC as an unimpeachable authority. These reports are an “amazing resource” he said, before quoting them at length. Boutrous explained that the IPCC has found with increasing certainty over the years that humans fossil fuel use is the primary driver of climate change — but that’s not the only point Boutrous wanted Alsup to absorb. He twice read a quote from the IPCC that climate change is caused “largely by economic and population growth.”

Then, Boutrous added his interpretation. “It doesn’t say that it’s the production and extraction that’s driving the increase,” he said. “It’s the way people are living their lives.”

This appears to be the core of the oil companies’ strategy. First, believe everything the IPCC says. Second, the IPCC says the real problem is prosperity, economic growth! Therefore, blame the ones burning the oil — all we did was dig the stuff up.

To hammer it home, Boutrous showed an IPCC graph of emissions from the United States and China since 1970, with a scale that makes U.S. emissions look like a flat line.

“One thing that surprises me is that the U.S. has gone up, but not gone up much,” Alsup mused, leaning on folded hands. “But China has gone up dramatically.”

“Correct,” Boutrous responded. That’s because China’s population has grown, and its coal-burning economy has grown even more. The implication was clear: It is demand for energy driving carbon emissions, not the companies providing the fossil fuels.

Death by PowerPoint

While the oil companies just had one slick lawyer making a focused argument, the cities had three scientists scrolling through their very own PowerPoint presentations. The scientists hammered some simple points, aided by many graphs of temperature over time. They also skated quickly over some bewildering complexity.

Alsup didn’t let the tricky stuff fly over his head — he jumped in to make the presenters explain. At one point, he questioned Oxford scientist Myles Allen on the graph he was using: “Explain that graph there? I still don’t get it,” Alsup said.

Allen’s explanation only muddied the waters further. “I just don’t think your chart demonstrates what you’re telling me,” Alsup said. After a moment, Allen realized he must have grabbed the wrong figure. “You’re absolutely right,” he said.

At another point the court waited on tenterhooks as a scientist tried to get an animation of sea-level rise to work. It didn’t.

To be sure, the plaintiffs had a bogglingly complex task. There are hundreds of thousands of studies on climate change, and Alsup had asked them to boil it all down into a two-hour presentation, which just isn’t the way science works. Science advances through accumulation of evidence backed by piles of data, but law advances through argument.

After the final expert, University of Illinois scientist Don Wuebbles, had plowed through 20 minutes of facts and figures, Alsup tried to pull him from his PowerPoint. “Just in the last 10 minutes: You heard what the other side said right? What critique would you make?” But Wuebbles declined to respond and returned to his PowerPoint presentation.

The showdown that wasn’t

Alsup appeared to want to see some of the classic climate-skeptic arguments fought out, face to face, in his courtroom. But nothing doing. Each side agreed, for instance, that greenhouse gases are more important than water vapor in warming the planet. If nothing else, that seems like a victory for climate hawks: When all the Big Oil companies are willing to say, clearly and unambiguously, that humans burning fossil fuels are warming the planet, it means that the terms of debate have shifted.

Boutrous represents only Chevron, but Alsup held the feet of the other companies to the fire, too.

“You can’t just get away with sitting there in silence then saying, ‘He’s not speaking for us,’” Alsup told to the attorneys for the other companies. “You have two weeks to tell me if he said something you disagree with.”

This court tutorial was the first of its kind for climate science, but it’s not entirely out of the ordinary. Judges are frequently called on to serve as arbiters of scientific uncertainty, so it only makes sense that they sometimes ask for primers from scientists to get themselves up to speed. “In this age of science, we must build legal foundations that are sound in science as well as in law,” wrote Supreme Court Justice Stephen Breyer. “Scientists have offered their help. We in the legal community should accept that offer.”

Even if this tutorial persuades Alsup, the cities could still lose. The oil companies seem poised to argue that those who bought petro-products are just as responsible as those who sold them. And they will almost certainly argue that those suffering the ravages of climate change should try to fix things by passing laws rather than suing businesses. That’s a position even the most liberal members of the Supreme Court have held in the past.

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Fossil fuels are the problem, say fossil fuel companies being sued

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Climate change will have its Scopes Monkey Trial this week

In 1925, a Tennessee substitute teacher was indicted by a grand jury for teaching evolution to his high school class. That case, the Scopes trial, became famous for pitting science against the Bible, and it helped pave the way for educational reform.

On Tuesday, a case in California could do for climate change what the Scopes trial did for evolution. Last September, San Francisco and Oakland filed major lawsuits against five of the world’s largest oil companies — BP, Chevron, ConocoPhillips, Exxon Mobil, and Shell.

All of those companies are constantly being sued for making large and sometimes permanent environmental messes. But the people of California aren’t suing BP and co. for spills, explosions, or other easily traceable disasters. Rather, they’re suing because those companies:

  1. knew about climate change decades ago,
  2. continued doing business as usual, and
  3. engaged in a world-wide public relations campaign to sow confusion over climate science.

California says the companies have been using deception to profit as the planet warms, and they should pay for the infrastructure the state needs to protect itself against rising sea-levels.

The lawsuits join others in a new wave of court cases: the climate suits. Two weeks ago, a climate change lawsuit filed by 21 kid activists against the Trump administration was cleared for trial. A week later, Arnold Schwarzeneggar announced plans to sue Big Oil for committing “first degree murder.” And New York City hit polluters with a double whammy in January: the city decided to divest billions of dollars in pension money from fossil fuels and filed a lawsuit against some of the biggest polluters in the industry.

The cases pit people against industry and government, and, whether or not the people win, the legal battles could mark the beginning of a shift in the way fossil fuel companies are held accountable in court. This particular case is especially novel, thanks to an unorthodox judge named William Alsup.

The judge presiding over the Bay Area cities-vs.-oil companies case isn’t your average federal justice. Alsup’s the guy who blocked the Trump administration’s attempt to end DACA, taught himself how to use a programming script for a Silicon Valley lawsuit, and, as part of another tech battle, asked two ride-sharing services to give him a tutorial on self-driving cars to make a better-informed ruling.

Alsup’s quest for a well-rounded education means that before this trial moves forward, both parties must give him a two-part, first-of-its-kind tutorial in climate science in no more than two hours each. It’s a highly unusual request from a judge, experts say, and it will give Americans the opportunity to follow along as big polluters finally go on record about climate science and climate denialism.

Judge Alsup has submitted 14 questions for each party in the case to answer, including:

What caused the various ice ages?
What are the main sources of CO2 that account for the incremental buildup of CO2 in the atmosphere?
Why hasn’t plant life turned the higher levels of CO2 back into oxygen?

Most of the 14 questions could be answered by a precocious fifth grader. But the hearing, according to Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, will be the first time oil companies defend themselves in court against decades of climate science.

“Up until now, fossil fuel companies have been able to talk about climate science in political and media arenas where there is far less accountability to the truth,” Burger says.

The complaint

In addition to providing answers to Alsup’s questions, the plaintiffs will likely present evidence that oil companies knew about the harmful effects of CO2 on the atmosphere at least since the 1970s. They may also highlight the prize-winning 2015 investigation by InsideClimate News, which revealed that Exxon purposefully misled the public about the risks of fossil fuels in order to protect its business. Despite having long known about the dangers of fossil-fuel consumption, California will charge that the “defendants continue to engage in massive fossil fuel production.”

As CO2 levels spike and global temperatures increase, melting glaciers have caused flooding in California’s coastal cities. The state’s argument rests on the charge that fossil fuel producers have caused a public nuisance. While the accusation sounds like something you’d call a drunk guy making a ruckus in the street, in legalese, it’s dead serious, constituting a crime that jeopardizes the welfare of a community.

The defense

While the oil companies are unlikely to deny climate science, they are expected to highlight areas of uncertainty on its specifics. Even though climate science has made leaps and bounds in the past decade, scientists still readily admit how hard it is to pin down exactly how much sea-level rise we can expect in the next 50 to 100 years. You can be sure Big Oil’s lawyers will question the validity of some climate science’s conclusions in court.

But they won’t stop there. The defendants will probably try to get the case dismissed on the grounds that the complaint “calls into question longstanding decisions by the Federal Government regarding, among other things, national security, national energy policy, environmental protection, development of outer continental shelf lands, the maintenance of a national petroleum reserve, mineral extraction on federal lands.” And the lawyers will rightly point out that their clients have “produced billions of dollars for the federal government.” In other words, they’ll try to argue that, by putting this case on trial, the government is biting some of the hands that feed it.

The defendants have already achieved one victory — they requested that the case be heard in federal instead of state court, where local laws are tough on big polluters. Just Friday, fossil fuel companies suffered a blow when a different set of lawsuits from three Californian counties were successfully moved to state court. But, for this case, Judge Alsup agreed with industry, saying a “patchwork of 50 different answers to the same fundamental global issue would be unworkable.”

What happens if California wins

If San Francisco and Oakland win their respective suits, the five oil giants might have to pay billions of dollars into an “abatement fund,” a reserve that the cities can use to pay for seawalls and other infrastructure to protect their citizens against rising oceans.

But the case might not even make it to trial. California could quite possibly ace the upcoming climate change tutorial and lose the case nevertheless. The tutorial puts climate science in the spotlight, but the oil companies could persuasively argue that California’s sea-level concerns (and the damaging storm surges that accompany sea rise) can’t be pinned on individual companies.

“There are legal obstacles that could prevent this case from ever going to trial,” Burger says. “The science could play a role in some of these preliminary arguments, but the ultimate questions about whether the science equates with legal liability for these plaintiffs, the factual connection between these particular parties’ actions and the particular harm suffered by these cities, may never get heard.”

In other words, California could win the battle but lose the war. The oil companies hope the case will ultimately get dismissed or shunted up to the Supreme Court where legal precedent favors polluters. That doesn’t necessarily spell doom for the future of the climate suit.

If the court ultimately rules in favor of the defendants, there’s a long line of similar lawsuits waiting for their day in court. Buckle up, polluters! You’re in for it now.

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Climate change will have its Scopes Monkey Trial this week

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Cape Town may have conserved enough water to avoid running out this year.

In a ruling this week, Judge William Alsup said that plaintiffs can sue greenhouse-gas emitters in federal court. That’s a big reversal. So far, the courts have held that it’s up to the EPA and lawmakers — not judges — to bring polluters into line.

In this case, the cities of Oakland and San Francisco sued a bunch of oil companies for contributing to climate change, raising sea levels and damaging their waterfronts. Because federal courts had previously said they wouldn’t regulate polluters, the cities were trying to move their lawsuit into the California court. If federal court wouldn’t punish polluters, the lawyers figured, maybe state court would.

Alsup denied the cities’ motion to move to state court. But instead of bowing to precedent and punting responsibility over to the EPA, he’s letting the lawsuit go to trial — in federal court.

“[The oil companies] got what they wanted; but they may be sorry they did,” said Ken Adams, lawyer for the Center for Climate Integrity, in a statement.

Of course, after opening this door, the courts could very well slam it shut again. The Supreme Court unanimously ruled in 2011 that it’s the job of Congress and regulators, not the court, to police emissions. But that decision concerned an American electric utility. Alsup said this case was different because the cities are suing international corporations.


Cape Town may have conserved enough water to avoid running out this year.

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After the lead crisis started, Flint’s fertility crisis began

This story was originally published by Mother Jones and is reproduced here as part of the Climate Desk collaboration.

In the year following the start of its water crisis, Flint, Michigan, saw fewer pregnancies among its residents and higher fetal deaths, according to a working paper published last month.

Kansas University economics professor David Slusky and West Virginia University economics professor Daniel Grossman examined health statistics in Flint between May 2007 and March 2015 and compared them to 15 other cities in Michigan. What they uncovered was alarming: After April 2014 — when, in an effort to cut costs, Flint officials switched its water supply from Detroit to the Flint River, leading to elevated lead levels — fertility rates among women in Flint dropped 12 percent. Fetal deaths spiked by 58 percent.

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“This represents a couple hundred fewer children born that otherwise would have been,” Slusky said in a university press release this week. The researchers project that between 198 and 276 more children would have been born from November 2013, when the child was first conceived, to March 2015 had the city not switched its water supply.

The researchers also conclude that the water change and the corresponding increased exposure to lead prompted a decline in the overall health of children born. Children exposed to high levels of lead can suffer from irreversible neurological and behavioral consequences. Moreover, children born in Flint since the start of its water crisis saw a 5 percent drop in average birth weight compared to those in other parts of Michigan during the same time period.

Shortly after the move in April 2014, residents complained about the water’s stench as it became inflicted with lead from old pipes in residential homes. Even after doctors and experts alerted state and federal officials to the elevated lead levels in Flint’s children and in houses’ water, Governor Rick Snyder and other state officials didn’t concede to the public health emergency in Flint until September 2015. The Michigan Department of Environmental Quality eventually acknowledged that it erred in not requiring the city to add anti-corrosive chemicals into its water.

Health officials found that between June 2014 and November 2015, 91 residents in Genesee County, which includes Flint, contracted Legionnaires’ Disease, a bacterial illness that can arise out of contaminated water, though not all were conclusively linked to Flint’s water crisis. At least 12 people from the disease died after 2014.

As of September 2017, 15 officials have been charged for their involvement in Flint’s water crisis, with five charged with involuntary manslaughter in connection to the Legionnaires’ outbreak. Earlier this year, a federal judge approved a $87 million settlement for the city of Flint that would pay to replace 18,000 water lines by 2020. The state still faces a number of lawsuits. One calls for the state to provide more special education services for children exposed to lead as a result of the water crisis.


After the lead crisis started, Flint’s fertility crisis began

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There’s No Way Republicans Will Truly Confront Trump on His Scandals. It Would Destroy Their Party.

Mother Jones

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Following the explosive report that President Donald Trump leaned on then-FBI director James Comey to go easy on former national security adviser Michael Flynn—and the explosive report that Trump’s transition team knew Flynn was under FBI investigation when Trump tapped him to be his top national security aide—an increasing number of congressional Republicans have begun to accept the need for full-scale investigations along with the appointment of Robert Mueller as the new special counsel to examine the Trump-Russia affair. But party leaders have not reached the point where they are willing to truly confront the scandal-plagued president. The GOP establishment can’t and won’t thoroughly challenge Trump over the assorted controversies brewing within his chaotic administration. To do so would risk a nuclear civil war that could blow their party to smithereens.

Ever since Trump moved into the White House, liberals (and others) have plaintively asked, why aren’t Republicans fiercely investigating Trump and his crew and seeking to hold them accountable for various instances of improbity? There’s been plenty to choose from: the Trump-Russia scandal, the smorgasbord of financial conflicts of interests involving Trump and his family members in and out of government, other possible ethics violations (including nepotistic hiring), the ever-widening Michael Flynn affair, and so on. In the wake of Trump’s firing of Comey, the guy in charge of a FBI investigation that could land on Trump’s doorstep, and the subsequent report (denied by the White House) that Trump pressured Comey on Flynn, some GOPers on Capitol Hill have gently called for probes into these matters. But by and large, Republican leaders have not dared to take on Trump vigorously. “The last thing I’m going to do is pre-judge anything,” House Speaker Paul Ryan said Wednesday.

One reason Republicans have been reticent to criticize Trump is obvious: they care more about working with—that is, using—Trump to attain their most beloved policy desires: generous tax breaks for the wealthy, draconian budget cuts for government programs (including those that assist low- and middle-income Americans), and the repeal-and-replace-or-whatever of Obamacare. But there’s a related reason: if congressional Republicans were to challenge Trump in forceful fashion, it could destroy the GOP.

Pop quiz: who’s the most vengeful politician on the scene today? Yes, it’s Trump. As I reported before Election Day, Trump is completely obsessed with revenge. For years, Trump often said in paid speeches that a key to success is that you have to be a merciless SOB when dealing with foes. Here’s how he spelled it out: “Get even with people. If they screw you, screw them back 10 times as hard. I really believe it.” Another time, he elaborated:

One of the things you should do in terms of success: If somebody hits you, you’ve got to hit ’em back five times harder than they ever thought possible. You’ve got to get even. Get even. And the reason, the reason you do, is so important…The reason you do, you have to do it, because if they do that to you, you have to leave a telltale sign that they just can’t take advantage of you. It’s not so much for the person, which does make you feel good, to be honest with you, I’ve done it many times. But other people watch and you know they say, “Well, let’s leave Trump alone,” or “Let’s leave this one,” or “Doris, let’s leave her alone. They fight too hard.” I say it, and it’s so important. You have to, you have to hit back. You have to hit back.

With the president showing signs of narcissism and paranoia—on Tuesday, he declared, “No politician in history…has been treated worse or more unfairly” than he has been—Republican politicians who dare to confront Trump can expect to be targeted and mowed down by Trump.

Prior to the recent Comey and Flynn controversies, many GOPers were scared of Trump. A House Democrat a few weeks ago told me of a conversation he had with a Republican colleague whom he was close to persuading to sponsor a piece of legislation that would likely be popular in the GOPer’s district but not fancied by the Trump White House. “I just can’t do it,” the Republican finally admitted to the Democrat. “He’ll come after me on Twitter.” The wrath of Trump was something this Republican feared deeply—just over a policy disagreement.

Imagine if Republicans squared off against Trump regarding a matter involving his integrity—or one that could pose an existential threat to his presidency. (Examining the Comey issues as possible acts of obstruction of justice could well lead to the question of impeachment.) Trump certainly would not consider such action kindly. And if he were going to screw them back 10 times as hard, what would that mean for congressional Republicans?

It would be quite improbable that a raging and revenge-seeking Trump would be able to collaborate with Republicans on legislative priorities. What would be more important for Trump: working with Republicans to achieve tax reform or extracting payback?

If the going gets tougher, Trump will insist on fealty from his fellow Republicans. Yet if some opt to join the forces of investigation, a dividing line would be created within the party: you’re with Trump, or you’re not. Of course, Trump and his minions would be keeping score. During the the first and chaotic effort of House Republicans to gut Obamacare, the Trump White House considered compiling an enemies list of those GOPers who opposed the Trump-backed bill. Republicans who threatened his presidency could expect much worse than being placed on a roster of unfriendlies.

This is far more than an inside-Washington affair. Trump’s base is the party’s base. Despite all the screw-ups, false assertions, broken promises, and flip-flops of Trump’s still young (but exhausting) presidency, he remains hugely popular among Republicans—84 percent of Republicans still approve of Trump in the latest Gallup poll—who presumably buy his “fake news” attacks on media reports that cast him as an autocratic, truth-challenged, and bumbling president. If Republicans on Capitol Hill turn against Trump they could well encounter the fury of their most dependable voters. In the fight for the soul of the party, could GOP leaders (Washington insiders!) best the demagogic Trump? Sen. Mitch McConnell or Rep. Paul Ryan would be no match for him. The idea of a President Pence would likely be little consolation for the base during a clash between Republicans and Trump.

The Republican establishment has already demonstrated that political calculations, not principles, are its driving force. And one calculation is easy to process: if the GOP breaks rank with Trump on any of these scandals, there will be no turning back. An irate (and irrational?) Trump would demand retribution. A base already suspicious of GOP insiders could become furious. Tax cuts and the like would be at risk. The party itself would be endangered. Of course, as is so often noted, if the Republicans start to feel Trump-related electoral pain—say, they lose one of the upcoming special House elections in GOP-leaning districts—they might reevaluate their situational loyalty to Trump. But the smart ones know the costs of such a course—even if necessary for survival—could be exceedingly high.

There is no good answer for congressional Republicans facing the dilemma of what to do about Trump. They long ago decided to lash themselves to a man with a decades-long record of dishonesty, arrogance, bullying, sleazy deal-making, and score-settling. There are no easy escape routes. No convenient off-ramps. No lifeboats on this ship. He made the bed, and they leaped into it. (Oh, Donald!) Now they’re screwed. The old cliché is that you don’t go after the king unless you can kill the king. But for Republicans, the situation is worse that that: it may not be possible for them to battle their king without razing their kingdom.


There’s No Way Republicans Will Truly Confront Trump on His Scandals. It Would Destroy Their Party.

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The Voting Rights Act May Be Coming Back From the Dead

Mother Jones

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On June 25, 2013, the Supreme Court killed the core provision of the Voting Rights Act. Four years later, it may be coming back from the dead.

Before Shelby County v. Holder, the 2013 case, the 1965 Voting Rights Act barred nine states with a history of discrimination against minority voters, and portions of six others, from passing new voting laws without federal approval. The court’s 5-4 decision, written by Chief Justice John Roberts, found that the formula for determining which jurisdictions needed approval—or “preclearance”—was outdated and therefore unconstitutional.

“Coverage today is based on decades-old data and eradicated practices,” Roberts wrote, and “‘current burdens’ must be justified by ‘current needs.'” In other words, states couldn’t be subject to preclearance based on the pervasive discrimination of the Jim Crow era, which Roberts wrote was now firmly in the past. Implicit in that ruling was the idea that states could be brought back under preclearance if they showed new evidence of discrimination. The law contains a provision specifically for that purpose, allowing courts to place jurisdictions under preclearance if they demonstrate intentional discrimination.

Freed by the court’s ruling from oversight for the first time in decades, many of the formerly constrained state and local governments quickly began imposing new restrictions on voting. But by passing measures that curtail voting by minorities, these jurisdictions are essentially calling Roberts’ bluff—and could force the Supreme Court to consider restoring preclearance.

Texas is the likeliest setting for the return of preclearance. In the last two months, federal courts have three times ruled that the state intentionally discriminated against minority voters. Its 2011 voter ID law and two redistricting maps it drew that year—for the state House and for Congress—were intended to limit the voting power of minorities, the courts found. Plaintiffs in the cases are asking the courts to place Texas back under preclearance. One or more of the cases could reach the Supreme Court as early as its next term. If so, the Roberts Court will have to decide what to do with states that demonstrate that racial discrimination in voting laws is not just a thing of the past.

Shelby County said that any preclearance had to be based on current evidence,” says Rick Hasen, an election law expert at the University of California, Irvine School of Law. “And these trials are based on current evidence, not based on something that happened in the 1960s. And so one way of reading this is that the courts are being faithful to what the Supreme Court said in Shelby County, which is that in order to have the extraordinary remedy of preclearance, you need to show that there is a current problem with intentional race discrimination. That’s exactly what’s at stake in these cases.”

In 2010, a conservative backlash to President Barack Obama put Republicans in charge of legislatures and governorships across the country. They quickly passed new voter ID requirements, restrictions on early voting and same-day registration, and other measures that have been found to reduce voting among minorities, the poor, young people, and the elderly. According to the Brennan Center for Justice, by the time of the 2012 elections, 19 states had passed 25 restrictive voting laws.

Fourteen of those laws were blocked by the courts or the Justice Department under the Voting Rights Act’s preclearance rule, and the torrent of voting restrictions began to slow. Shelby changed that. It set in motion a new wave of voter suppression laws across the country. Weeks after the court’s ruling, for example, North Carolina passed a voter suppression bill that the 4th Circuit Court of Appeals, in striking it down, called “the most restrictive voting law North Carolina has seen since the era of Jim Crow,” targeting “African Americans with almost surgical precision.”

No state moved more quickly than Texas to implement a wish list of election reforms that had been blocked under preclearance. Hours after the court’s decision, the state’s attorney general, Gregg Abbott, announced, “With today’s decision, the state’s voter ID law will take effect immediately.” The next day, Gov. Rick Perry signed into law maps for congressional and state Legislature districts that were based on the ones that had been struck down by a federal court under preclearance in 2012 as deliberately discriminatory against minority voters.

Those moves have not fared well in the courts. In April, a federal judge in Corpus Christi ruled that the voter ID law was passed with discriminatory intent. In the past two months, a federal court in San Antonio found both the congressional and the statehouse maps from 2011 intentionally discriminatory. In July, a federal court will determine whether the maps Texas adopted after Shelby are also discriminatory; that case could result in court-drawn maps for the 2018 elections. The string of rulings might lead the courts to reimpose preclearance on Texas. After all, preclearance was intended to target repeat offenders so that the courts wouldn’t be left playing whack-a-mole to strike down discriminatory measures every time they emerged.

“You see the consequence of not having preclearance,” says Mark Gaber, an attorney on the plaintiffs’ legal team in the redistricting cases. “It’s 2017 and we’re still having to litigate about something that happened in 2011.” He adds, “In that period of time, we’ve now gone through three election cycles under maps that quite clearly are—the court’s going to find to be discriminatory.”

Any court that finds intentional discrimination could put Texas back under preclearance for up to 10 years. The courts can decide what types of election laws, if not all of them, would be subject to federal approval.

Wendy Weiser of the Brennan Center, who is part of the plaintiffs’ litigation team in the Texas voter ID case, says there’s a “reasonable chance” that one or more of the Texas cases will result in Texas being placed under preclearance. “The thing that persuades me that this is more likely than not is…the existence of multiple findings of discrimination in the state during this period,” she says. “So it really feels quite widespread.” Hasen concurs that there’s “a fair chance” that at least one of the Texas cases will result in preclearance. Texas would almost certainly appeal a preclearance order, putting the ultimate decision before the Supreme Court.

Texas is not the only place facing the potential return of preclearance. In the days and months after Shelby, Alabama and Mississippi enacted voter ID laws that had previously been held up by preclearance. North Carolina has stood out for the sheer number of voting bills Republicans have passed to preserve their power, including a redistricting map currently before the Supreme Court and a voter ID bill on which it could also rule. At least two cities have already been placed under preclearance in the aftermath of Shelby: Evergreen, Alabama, for gerrymandering its city council districts to produce a majority-white council in a city that is 62 percent African American, and Pasadena, Texas, which also restructured its city council to reduce the power of Hispanic voters. Pasadena is appealing that decision. But if a court places Texas under preclearance, it would mark the return on a much bigger level of a policy thought to be all but dead.

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The Voting Rights Act May Be Coming Back From the Dead

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A Loss in the Courts Won’t Stop Missouri’s Anti-Abortion Wave

Mother Jones

For decades, Missouri has embarked on a quest to eliminate abortion access. Earlier this year, state legislators filed some 14 anti-abortion proposals before the start of the session, making it a prominent example of emboldened efforts on the state level in the Trump era. Those measures were dealt a blow last week when a federal judge suspended two longstanding abortion restrictions in the state, but with the GOP controlling every level of the state’s government, state lawmakers are undeterred in their efforts to restrict abortion access.

Today, a Planned Parenthood clinic in St. Louis is the state’s sole abortion provider licensed to serve approximately 1.2 million women of reproductive age, many of whom would face a 370 mile drive to access services, a process further protracted by a mandatory 72-hour waiting period. “People are driving hours to St. Louis, or they’re crossing over the state line into Kansas or other states in order to access services,” says Laura McQuade, the President and CEO of Comprehensive Health of Planned Parenthood Great Plains, one of the Planned Parenthood affiliates that filed a lawsuit last year challenging the Missouri restrictions.

As a leader in restricting abortion access, Missouri passed laws more than a decade ago that required doctors who perform abortions to have admitting privileges at local hospitals and abortion clinics to meet the same structural requirements as ambulatory surgical centers. These laws were subsequently also passed in Texas, where they were challenged and finally struck down by the Supreme Court in a 5-3 ruling in Whole Woman’s Health v. Hellerstedt in 2016.

Last week, in response to a challenge filed last fall by two Planned Parenthood affiliates with Missouri clinics, US District Court Judge Howard Sachs agreed to enjoin Missouri’s version of the restrictions. Sachs first announced his decision in an April 3 memo sent to the parties involved in the case. In his decision, Sachs noted that the restrictions had negatively affected women in the state and failed to comply with the Supreme Court’s ruling. “The abortion rights of Missouri women, guaranteed by constitutional rulings, are being denied on a daily basis, in irreparable fashion,” he said. “The public interest clearly favors prompt relief.” The restrictions will be halted while the effort to permanently strike down the laws moves through the courts.

Sachs’ ruling could have an immediate impact on abortion access in the state. Shortly after the decision was announced, the Missouri Planned Parenthood affiliates released a joint statement confirming their desire to increase the number of local abortion providers by expanding services to four additional Planned Parenthood locations. But Missouri Attorney General Josh Hawley has promised to appeal the decision, saying that it was “wrong” with the dire consequence that laws that “protect the health and safety of women who seek to obtain an abortion” can no longer be enforced.

Last week’s ruling, however, is unlikely to deter state legislators from pursuing further abortion restrictions. Around the same time that Sachs issued the April 3 memo announcing his intent to grant the injunction, two Republican state Senators, frustrated that they were unable to block a St. Louis nondiscrimination ordinance protecting women that are pregnant, use birth control, or have had an abortion, took time during a discussion of tax hikes benefiting the state zoo to joke that women should go to the St. Louis Zoo for abortions, suggesting that it was “safer” and better regulated than the state’s lone abortion provider.

Meanwhile, shortly after Republicans in Congress moved to defund Planned Parenthood, state Republican Rep. Robert Ross proposed an amendment to House Bill 11—an appropriations bill for the Missouri Department of Social Services—that would allow the state to prevent “abortion services” providers from receiving state family planning funding. This could potentially include any group that provides even abortion referrals upon request. Allison Dreith, the executive director of NARAL Pro-Choice Missouri characterized the amended bill as having the potential to create “a public health crisis in our state, if family planning clinics, hospitals, and Planned Parenthood are defunded from Medicaid reimbursement.” The measure passed the House on a 107-39 vote and is now with the Senate.

Missouri lawmakers have faced some unintended consequences in their zeal to cut back on family planning services. In 2016, the state rejected the federal family planning funding it had received through Extended Women’s Health Services, a Medicaid program for low-income women funded by both the state and federal governments. Federal law already prevents Medicaid from reimbursing providers for the costs of most abortions, but Missouri legislators hoped to go further by completely cutting off funding to groups like Planned Parenthood by rejecting some $8.3 million dollars in federal funds, opting to create a state-funded program that would no longer have to abide by federal rules mandating that patients have the ability to choose their health care provider.

In the months leading up to the measure taking effect, Missouri has moved to block all abortion providers, including hospitals, from receiving family planning funding. But to the consternation of Missouri conservatives, many Planned Parenthood clinics in the state remained eligible for the program because they are not permitted to provide abortions. “Despite that being a simple amendment last year, apparently the Department of Social Services was confused,” Ross said when discussing his proposed amendment earlier this month, according to reports from the Missouri House of Representatives newsroom. Ross’ HB 11 amendment would change things by ensuring that even those who provide information about or referrals for abortions are excluded from the funding program.

“They have defined ‘abortion services’ so broadly that it is going to basically decimate the entire family planning network across the state of Missouri,” says Michelle Trupiano, the executive director of the Missouri Family Health Council, which allocates funding to 71 clinics in the state under the federal government’s Title X family planning program.

Trupiano notes that under the conditions of Title X, many of the state’s family planning providers are required to offer abortion referrals upon request, a mandate that could open them up to losing funding should HB 11 be adopted. “There wouldn’t be a single provider that could participate in the program,” she adds. With less than a month remaining in Missouri’s legislative session, advocates have begun lobbying lawmakers in hopes of defeating the amendment.

But given the history, advocates say, some lawmakers in Missouri will do anything to restrict abortion, even if it means an overall reduction in access for women to health care options in the process. “Responsible legislators want to move forward to other issues,” McQuade says. “But this is what Missouri is choosing to spend its time on right now. It’s deeply disheartening.”

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A Loss in the Courts Won’t Stop Missouri’s Anti-Abortion Wave

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