Novel legal theory

Submitted: Dec 02, 2005
Nakayama also forgot to mention that the Bush administration has rewritten the very rules used to prosecute those companies. The Bush version of the rules, which would let power companies off the hook, is being challenged in court by numerous state attorneys general, as well as environmental groups.

"It is the height of hypocrisy for the Bush administration to try to take credit today for enforcing the Clean Air Act's new source review provisions,” notes Rep. Henry Waxman, D-Calif. “The Bush EPA has been working overtime to change the underlying clean air rules and prevent such enforcement actions from being brought against dirty power plants in the future."

Nakayama also failed to note that the Bush administration is not only trying to change the rules, but that it recently declared that it would not even enforce the law against the power industry—a move the administration euphemistically described as an effort to “refocus” its activities.

Some big polluters have become so encouraged that they’ve gone to court to seek dismissal of pending charges. It’s as if someone awaiting trial for murder sought freedom on the grounds that prosecutors were going to look the other way in future murder cases. – Frank O’Donnell, TomPaine.com – Dec. 2, 2005

Big polluters and environment destroyers are operating under a new legal theory: if legislation weakening environmental law and regulation might have been pending when they committed their illegal acts under existing law, they might be able to skate. For people interested in rural excursions in Merced County, a trip down White Rock Road in Le Grand from the entrance to the Jaxon Mine all the way to the Madera County line at the Chowchilla River would reveal interesting examples of projects that assume this new legal theory. The idea behind the deep ripping of thousands of acres of seasonal pasture containing protected wildlife habitat seems to be that the Gut-the-Endangered Species Act bill by Congressman R.D. Pomboza, Species Slayer-Tracy/Merced, could get through the Senate, so “let her rip.”

Bill Hatch

Polluter Playtime (1)
Frank O'Donnell
December 02, 2005

Frank O'Donnell is president of Clean Air Watch, a 501 (c) 3 non-partisan, non-profit organization aimed at educating the public about clean air and the need for an effective Clean Air Act.

In a move virtually unnoticed by the press corps, the Bush administration this week quietly dropped a lawsuit against a big electric power company.

The suit against Duke Power Company was brought by the Clinton administration, which accused Duke of illegally spewing too much pollution into the air. The Bush team initially gave lip service to continuing the suit, but it shelved the case after a setback in a lower court.

In the process, the administration demonstrated a phenomenon that is becoming increasingly apparent: For a government seemingly obsessed with promoting the “rule of law” everywhere from Iraq to Mongolia, the Bush administration can be pretty loose when it comes to enforcing the law back home.

Especially when it comes to enforcing environmental laws such as the Clean Air Act.

Whether it’s dealing with coal-burning electric plants in the Midwest or auto emission inspections in Ohio and Kentucky, the administration has decided it won’t even attempt to enforce the law if it seems inconvenient to big polluters or to Republican-controlled state governments.

This isn’t a trivial matter. Hundreds—perhaps thousands—of Americans are dying unnecessarily each year as a direct result of the administration’s cavalier disregard for the law.

The administration’s negligence is perhaps topped only by its brazenly false claims about its enforcement prowess. Consider, for example, the hypocritical assertions made last month by Granta Nakayama, the Environmental Protection Agency’s head of enforcement, as the agency issued a status report on its enforcement efforts.

Nakayama (who, until recently, was a corporate lawyer-lobbyist paid to undermine clean air controls) contended that “EPA's enforcement strategy and accomplishments demonstrate our commitment to achieving cleaner air, cleaner water and healthier communities."

To back his claim, Nakayama cited 10 recently resolved air pollution cases against corporate polluters. Those 10 cases would eliminate 620 million pounds of pollution and bring more than $4.6 billion in public health benefits, including “reductions in premature mortality, bronchitis, hospitalizations and work days lost.”

What Nakayama left out was that half of the results came from cases brought by the Clinton administration. These were prosecutions of electric power companies that violated the law’s “new source review” provisions, which require smokestack industries to modernize pollution controls when they increase emissions.

Nakayama also forgot to mention that the Bush administration has rewritten the very rules used to prosecute those companies. The Bush version of the rules, which would let power companies off the hook, is being challenged in court by numerous state attorneys general, as well as environmental groups.

"It is the height of hypocrisy for the Bush administration to try to take credit today for enforcing the Clean Air Act's new source review provisions,” notes Rep. Henry Waxman, D-Calif. “The Bush EPA has been working overtime to change the underlying clean air rules and prevent such enforcement actions from being brought against dirty power plants in the future."

Nakayama also failed to note that the Bush administration is not only trying to change the rules, but that it recently declared that it would not even enforce the law against the power industry—a move the administration euphemistically described as an effort to “refocus” its activities.

Some big polluters have become so encouraged that they’ve gone to court to seek dismissal of pending charges. It’s as if someone awaiting trial for murder sought freedom on the grounds that prosecutors were going to look the other way in future murder cases.

Take, for example, Cinergy, the conglomerate that provides electric power in Ohio and Indiana. Five years ago—in December 2000—Cinergy reached an agreement in principle with the Clinton administration, which had accused it of violating new source review. Cinergy pledged at the time to reduce 1 billion pounds of pollution—more, in other words—than all the “top 10” cases combined that Nakayama boasted about.

But after the 2000 elections, the company refused to sign the deal. Now, Cinergy is asking a court to dismiss the charges because of the Bush administration’s decision not to enforce the law against other companies. Cinergy no doubt will be encouraged by the administration’s change of heart in the Duke case.

The “refocused” Bush policy of non-enforcement unfortunately is spreading like the avian flu to other sources of pollution.

For instance, the states of Kentucky and Ohio recently decided to abolish auto emission inspections in the Cincinnati metropolitan area even though an American Lung Association report documented the area had 19 days this summer with unhealthful air quality.

Auto inspections do help reduce pollution, and EPA rules stipulate that smoggy states such as Ohio and Kentucky can’t just scrap pollution control programs that they don’t like. Except that, once again, the EPA says it’s not going to enforce the law.

“Illegal and irresponsible,” is how the American Lung Association describes the situation.

So you do have to marvel at the chutzpah of an EPA spokeswoman, who recently declared that, “We will continue to rigorously enforce any violations of the nation’s clean air laws.”

Except, that is, when the Bush administration doesn’t feel like it.


(1) http://www.tompaine.com/articles/20051202/polluter_playtime.php

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What happened on the way to San Francisco on Thanskgiving

Submitted: Nov 27, 2005

Could it be because the land near the Delta is so rich that despite what is happening on it, somehow not all people believe in the eternity of growth?

It is foolish to become upset about the changes out there in western San Joaquin County approaching the Altamont. One should never become upset about such changes. People too attached to the beauties of Nature suffer too much to live in California. They ought to go join the woman in the town in Nebraska who runs the bar, is the mayor, taxes herself, is the only resident since her husband passed away, and deer wander down her Main Street. Perhaps she would agree to rename the town “New California,” create bike trails, open an organic health-food store and galleries for the painters. The Californians could create in her town the utopia of all their memories of Ecotopia Lost.

Yes, I know the answer to Arne Naess’ question:

“How would mankind’s present role on this planet be evaluated in the light of philosophical world-views of the past?”

(I know it because I read the next sentence.)

“No matter which one of the great philosophies one considers to be valid, our current role would be evaluated negatively. It is in opposition to value priority as announced by these philosophies. This applies to Aristotelianism, Buddhism, Confucianism, and other great philosophies of the last two millennia.”

(Don’t forget to add a zendo on Main Street to New California, Neb.)

“In the great philosophies, greatness and bigness are differentiated. Greatness is sought, but it is not magnitude. The importance of technology is recognized, but cultural values get priority of consideration. The good life is not made dependent upon thoughtless consumption.” (1)

Perhaps it is something about the air the comes off that unfathomable Delta bottom land between Manteca and the Altamont, something about the incredible fecundity of it, that inspires such dreams of greatness (unenlightened by Aristotle, Buddha or Confucius, or Laotse, Boethius, Avicenna, Nicolas of Cusa, St. Thomas, Moses Maimonides, Spinoza, Bacon, Hume, Hegel, Dilthey, James, Dewey, Husserl or Heidegger for that matter), when you live on top of San Joaquin Delta bottom land. All you really need is a big Caterpillar and diesel enough to plant anything from alfalfa to a commuter subdivision.

Of course, the area has been known to flood at times. In fact, that’s what makes the land so fertile. But levees exist to stop flooding now. The main point is that almost anything grows there.

There was a town out there once, called Tracy. It was a long, gangling town that grew up beside the highway, only a few blocks deep on either side. It had a city hall, a high school, some cafes and small businesses, a newspaper, and an old hotel that served the best steak sandwich in the north valley. I suppose that town is still there somewhere, but I worked around that area several years ago and could never quite find it.
The disappearance of Tracy is nothing to get upset about. Remember, one shouldn’t get upset over these things. If one does, it is time to go to Nebraska. Actually, I worked within the city limits of the present-day Tracy and never even found the old highway through the old town.

The land is incredibly rich. It grows anything.

This weekend, our nation’s newspaper of record, Judith Miller’s publisher, the New York Times, lambasted a son of Tracy, Rep. Richard Pombo, chairman of the House Resources Committee, for a bill he’s pushing to sell off mining claims on public lands. (2) The Times editorialists describe this bill as “an evil trap to be sprung on the American public: Richard Pombo’s plan to put a few hundred million acres of publicly owned land up for sale in the American West.”

Setting aside that the New York Times’ sentiments about the American West are about as warm as they are for the Arab Middle East, what we seem to have here is part of a national campaign against Pombo, a simple ranch realtor who believes in his heart that western rural land exists to be sold, as many times as possible for a decent fee, and has never said otherwise. Because various environmental laws, regulations and agencies impede his quest, he hates them and seeks, in a straightforward manner, to destroy them.

While it is possible to join Aristotle, Buddha, Confucius and Naess in disagreeing with Pombo’s simple view of life in all its porcine sincerity, evil it ain’t, it seems to me. Evil is publishing cooked intelligence that causes the deaths of thousands of innocent people and more than 2,000 American soldiers plus the 15,000 wounded.

Pombo’s worldview is something else. I think it might come from the idea that the “real world” – rightwingers are very big on the “real world” – is only what one owns or has options on, and that concepts like “the planet” just don’t fly in Tracy the way they do in Manhattan. I mean that, not too long ago, back when Tracy was still a long, thin town on a highway, if a couple of longhairs went into one of those cafes for a cup of coffee and started talking “planet,” it could have gotten ugly for them. Because the world, in Tracy, was what you owned (and it still is for those who still own it). If you don’t own any land, in Pombo’s world, there may even be some doubt about your existence, let alone your right to vote. And that land around Tracy is so fertile, who would want anything more? In fact, everyone ought to go to Tracy and buy land … from Pombo. If people only realized this, there would be less disagreeable strife about natural resources in the nation.

For example, Rep. George Miller, D-Martinez (across the river from Tracy), the former chairman of a defunct House committee called Natural Resources, should quit sniping and buy pasture while he still can. Miller and Pombo should bury the hatchet over a nice real estate deed. Maybe the New York Times should get in the deal, too.

The land in Pombo’s district is fabulously fertile. It grows anything. Whole bedroom communities spring up there like Johnson grass. It’s amazing. Growth in that region is as inevitable as … well, you know, growth. There’s nothing more inevitable than growth. The alfalfa grows. The tomatoes grow. The subdivisions grow. Everything grows in the incredibly fertile congressional district of Pombo.

Well, maybe except for freeways. It’s not that they haven’t tried to pave everything from Manteca to the Altamont into one Great Road, but it’s a government deal and there are some rivers involved, so they haven’t quite gotten there yet. There are still some pastures and farmland and funky old bridges that distract from the view of the road. If you know where to look (people who have traveled through the area for 40 or 50 years do know) you can still see houseboats and a few other remnants of pre-Pombo primitive existence, which should have been paved over by government long ago. But most people don’t look and if they did, would be offended by the faintly gypsy air of such camps, floating or not, and might complain to a county supervisor about the viewscape they are forced to endure daily on their way to work in the Bay Area.

There is even an old brick silo that used to have a sign on it saying, “Horses for sale.” If it upsets you that you can’t see that sign anymore, you are a candidate for Nebraska. If you can’t maintain, control yourself and refrain from blogging or some such nonsense, go open an antique store on the prairie, and see how your life unfolds. Study the joys of quality of life instead of the standard of living. (3) This is the 11th Congressional District of California: we’re talking standard of living here, to be achieved through land deals, because our land grows anything (unlike the Nebraska prairie, which our developers wouldn’t touch with a 10-foot poll).

So, it gets a little crowded sometimes on the inadequate freeways around Tracy. Pombo wants to cut another one south of the Altamont through a Coast Range canyon straight to Silicon Valley. But that’s a government deal. Actually, some people call it “pork,” an unattractive term for government investment in your congressional district (things like UC Merced, etc.). And Pombo don’t like government. That’s why he’s in government: to stop government.

It doesn’t matter. In his district, the soil is so rich it grows anything but contradictions.

Traffic was thick on Thanksgiving. It just crawled, in both directions, from outside of Manteca all the way into and through Tracy, almost all the way to the Altamont. Growth, it’s beautiful. In the middle of Tracy, on a balcony in one of those subdivisions that loom over the road, a woman stood, a cell phone in one hand, while her other arm made a regular, semaphoric motion, up and down, perpendicular to the traffic. She must have been counting her blessing with each stroke, because there she was, in the Middle of Growth, rejoicing in her standard of living, even as we transients were cursing the quality of our lives. It’s all an optical illusion. From above the freeway, on the balcony of a condominium, it’s all standard of living. Down on the road, it’s all quality of life.

From the road, Ms. Semaphore seemed demented, actually, perhaps deranged by philosophical contemplation of the problems arising from the relationship of standard of living to quality of life. In short, an urban transplant to soil that grows absolutely anything. But again, that’s only the opinion of a driver.

On the other side of the freeway from this particular strand of highway jammed with crawling traffic in both directions, lies (for the time being) a clear expanse of farmland, mostly in alfalfa, that runs to the river, a fair distance away, its riparian corridor of oaks barely visible on that overcast day. We don’t eat alfalfa, of course, although its sprouts might be offered in the health store on Main Street of New California, Neb. Cows eat alfalfa, and California is the largest dairy state in the country and those dairies are concentrated in the San Joaquin Valley.

So, while the southern edge of the freeway in those parts is composed of a sound barrier over which peek the balconies of commuter villages, the view to the north preserves the agrarian heritage of the region.

As we crawled onward, I spent my time looking at alfalfa and the irrigation-canal laterals that water it. These are not timeless scenes because I am not a timeless being, nor were the two snowy egrets timeless, bent over, eyes to the wet earth, hunting in a field. However, they reminded me of a time when these roads were not jammed bumper-to-bumper, the fields surrounded the road, there were many more egrets and other birds in the area, and that part of the trip to the Bay Area, particularly in the cold of early winter, was a drive through the abundant natural life of western San Joaquin County.

Due to the abstraction of my own philosophical contemplation, I was not surprised when Don Quixote appeared on horseback, his horse standing on a little hump next to a lateral dividing an alfalfa field from pasture. Why not? I wondered. This Delta land grows anything. As I grew closer to the horseman, I began to suspect it really wasn’t Don Quixote – the man was a little too stocky—and the horse, a flashy pinto, was a bit too athletic for Rocinante, exactly. Yet …

Here was a horseman. He was wearing neither a Pombo drugstore/political cowboy hat nor a medieval barber’s basin, but a bent farm cap, just like an ordinary horseman. Perhaps the sorcerers were at work. Sancho? I thought. The pinto argued against Sancho, who rode a donkey. But, as the real Don Quixote teaches, you just can’t tell as long as there are sorcerers in the world. And they are everywhere.

The horseman wore a dark mustache, another Sancho-esque feature. But Sancho would never have ridden this horse, which kept tossing its head as its rider kept raising his right arm in a salute to the freeway. Perhaps the reason the horse tossed its head was because each time the rider raised his right arm in salute, a quirt looped over his wrist came into view.

In the two days since Thanksgiving, I have given more credence to the idea of a stocky Knight of the Sad Countenance than to the squire on the strength of the insane repetition of the salute. (This, of course, is the interpretation of a perfectly sane man driving to San Francisco on Thanksgiving in very heavy traffic, already an hour late for lunch with his 90-year-old mother.) Yet, finally, as I turn over the event once more in my mind, I am not sure if the man was insane or if he was perhaps mocking us. He may even have been trying to teach his horse something about freeways that every horse should know.

No, finally, I don’t know what that horseman was doing there, repeatedly raising his right hand in salute to the freeway, a quirt looped on his wrist. But he seemed to be looking at us as if he knew us. At least some of us felt that he might know us, which is why so many of us honked and waved.

I admit the vague thought entered my mind that perhaps it was Pombo himself, watching the vast herds pass through, counting cars like trail bosses of old counted cows in a canyon somewhere south of the railhead. Or perhaps it was a new, ambiguous, picaresque style of campaigning.

The traffic picked up speed after we had honked and waved at the horseman. Afraid I might be in for a crawl all the way to the Bay Bridge, I’d turned on the radio and had received a very detailed description of a traffic jam in Napa County. However, just as we got to normal speed, the announcer mentioned that a woman had called from Tracy to complain about some cowboy slowing traffic all the way through town. Probably a Democrat.

But, party affiliation aside, at last a grounded person had explained the situation. The horseman was just an obstruction of traffic, no more than a wreck with victims in stretchers on the side of the road. The proper response was to complain to the radio station. Perhaps the highway patrol would send somebody to arrest him and his horse for obstructing traffic. That would be the right thing to do. The traffic must go on, you see. Nothing must be allowed to impede it.

Bill Hatch


(1) Ecology, community and lifestyle, Arne Naess (translated and edited by David Rothenberg), Cambridge, 1989, p.87

(2) Privatizing the American West...Editorial
While lawmakers are in recess, it is worth reflecting on one particular part of the mess they have left behind. Mr. Pombo is head of the House Resources Committee and has long been determined to privatize as much of the West as he can lay his hands on. Last week, a budget bill scraped through the House... The bill has to clear a few more hurdles before becoming the law of the land... Americans have come to understand that America can't drill its way out of dependency on Middle Eastern oil, and that ravaging the Arctic is no substitute for sound energy policy. They also understand that Mr. Pombo's sleight of hand is little more than legislative robbery.

(3) Naess, p. 88

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Mood swings

Submitted: Nov 13, 2005

Planning in Merced, since the University of California first cast its greedy eyes on a large donation of seasonal pastureland north of the county seat, has been dominated by one agenda: the transfer of large rural properties to developer ownership. This is not to say that a number of other things haven’t happened, but the dominant agenda has been this phenomenon: the willing sale of ranch and farmland to developers.

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McClatchy salsa

Submitted: Nov 04, 2005

Salsa McClatchy Badlands Journal replies to Sacramento Bee editorial on Pombo Bill Hatch -- Nov. 2, 2005 The Sacramento Bee editorial, Pombo mambo, actually looks like the McClatchy Co. going after a bad actor in Congress, one of DeLay’s wretched little henchmen, while the Hammer is back in Texas under indictment for illegal campaign funding. Although green is not really McClatchy’s color, like any good editorial, Pombo mambo provokes thought. For example, how can Sacramento Bee editorialists mention Pombo’s Gut-the-ESA bill without mentioning its co-author, Rep. Dennis Cardoza, Shrimp Slayer-Merced, whose district encompasses the circulation area for two of its papers, the Modesto Bee and the Merced Sun-Star. The editorial first appeared in Sacramento last week and was reprinted in the Modesto and Fresno Bees yesterday. Perhaps the reason for McClatchy reticence lies in the landscape of its region and the shape of the Pombo/Cardoza bill to gut the Endangered Species Act.

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