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The New Labor Regulations Make Republicans Cry

[ 44 ] May 26, 2016 |

socialism

Republicans continue to freak out over the Obama administration’s continuing advancements in giving American workers a fair shake. They are going to do whatever they can to repeal those regulations, even though these strategies won’t work.

Buried on page 523 of the Senate’s proposed National Defense Authorization Act for Fiscal Year 2017 is a provision that would weaken Obama’s “Fair Pay and Safe Workplaces Executive Order.” That July 2014 order, which has not yet been implemented, would require that federal agencies crack down on private contractors who repeatedly violate labor law. The order would also require that private companies disclose recent labor law violations when they apply for federal contracts.

The Senate NDAA stipulates that Defense Department contractors and subcontractors will not be “compelled or required to comply with the conditions for contracting eligibility” outlined in the executive order. The House version of the NDAA, which passed last week, also includes a provision intended to undermine the order.

The proposed exemption for military contractors is part of a broader Republican campaign to roll back the Obama administration’s labor regulations.

Last week, House Speaker Paul Ryan, R-Wis., announced that he would lead the fight to undo a recent expansion of paid overtime eligibility. Business groups have vigorously lobbied against the expansion, which could make 4.2 million workers in the United States newly eligible for paid overtime.

I understand, Republicans need to go to the mat to attack such horrors as overtime pay and disclosing labor law violations. Wait, what? But of course.

No doubt they are extra sad today, because the Seventh Circuit just ruled that companies can’t force workers into mandatory arbitration instead of allowing them to file class action lawsuits.

In a case with major implications for mandatory arbitration agreements, the seventh circuit today struck down an arbitration clause that prohibited employees from pursuing class proceedings. The appeals court, in an opinion by Chief Judge Wood, held that by banning collective actions, such an agreement violates the National Labor Relations Act. The decision, Lewis v. Epic Systems Corp., conflicts with the Fifth Circuit’s holding in D.R. Horton and thus creates a circuit split.

As the seventh circuit correctly observes, Section 7 of the NLRA protects not only collective bargaining but also “other concerted activities.” These “other concerted activities,” moreover, have for decades been held to include “resort to administrative and judicial forums.” Thus, courts and the NLRB have long concluded that filing collective or class action legal proceedings constitutes protected “concerted activity” under the NLRA. By prohibiting workers from pursuing class proceedings, a mandatory arbitration clause with a class action waiver therefore requires workers to waive their section 7 rights, something no employment agreement can do.

….

It would be hard to overstate the importance of this decision for the evolving law of mandatory arbitration agreements. Unless and until the Supreme Court intervenes, the decision calls into question the legality of all mandatory employment arbitration agreements in the seventh circuit (Illinois, Indiana, and Wisconsin) that contain class action waivers. It also raises the possibility that other circuits will follow suit.

Since the Department of Labor and the judiciary obviously don’t matter, the only conclusion we can make is that if Bernie doesn’t win the nomination, both parties are the same and therefore it’s Jill Stein or bust.

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S-M-R-T ALEC

[ 47 ] May 26, 2016 |

Morbleu! McDonald’s has “artificially increas[ed] the minimum wage for some of its workers,” due to the machinations of “left-wing pressure campaigns” and “the leftist mob.”

It’s up to the National Center for Public Policy Research can remind a multi-national corporation to be true to its free market principles and fend off the “barbarians.” To the annual shareholders’ meeting, mes amis! (p. 58)

In its latest annual report, the Company recognized that to “drive future results, our global growth strategies must be effective in achieving market share gains while at the same time delivering operating income growth.” Furthermore Bloomberg BNA reported that the company lobbied “Congress on the potential negative impact that increasing the federal minimum wage could have on small-and medium-sized businesses.” In other words, the Company supports market-based policies that promote competition and growth without unnecessary regulatory interference.

However, many of McDonald’s policy activities run counter to these stated corporate values.

For example, despite the fact that the American Legislative Exchange Council (ALEC) works to foster a low-regulation business-friendly environment, the Company publicly ended its affiliation with ALEC in 2012 at a time when anti-free-market activists were perpetuating falsehoods about ALEC and its activities.

Furthermore, rather than relying on market forces and existing law, the Company recently artificially raised wages for some of its employees at the behest of leftist agitators.

So, I guess the way this works is ALEC sends its minions out to troll shareholders’ meeting in hopes of herding straying companies back into the billfold.  It must pay well because shareholder and NCPPR president Amy Ridenour can afford to send an attorney to these meetings rather than going and making an ass of herself in person.

[Update: To paraphrase a couple of commenteers “Artificial raises, LOLWUT???”

If memory serves, natural (free market) wage increases occur when a job creator can’t get job takers to work for him because he doesn’t pay enough. In order to maintain his job creator status he will have to raise his wages. Apparently when employees protest in order to get higher wages that doesn’t count because something mumble socialism!]

The link to the press release apparently only works for a lucky ducky who first received it as an email, therefore the entire thing is below the jump. You’re welcome? Read more…

Chait Hates Teachers’ Unions! To the Fainting Couch!

[ 175 ] May 26, 2016 |

Diane-Ravitch-Reign-of-Error

There must have been some future teachers in activist groups at the University of Michigan 25 years ago, because Chait is taking ill-informed and gratuitous shots at teachers’ unions, blaming them for opposing an Obama administration plan:

The policy fight in question is an Obama administration proposal to require school districts to use Title I funds to help their poorest schools more than their richest ones. (Even within a school districts, more affluent schools often spend more per child than poorer schools.) Not surprisingly, organizations like the NAACP, the Children’s Defense Fund, and the National Council of La Raza support this idea. Also unsurprisingly, Lamar Alexander, the Republican chairman of the Senate Education Committee, opposes it. What may be surprising to some is who has joined Alexander: the two giant teachers unions, the American Federation of Teachers and the National Education Association, who have signed a letter supporting Alexander.

Why would the unions oppose a plan to shift resources to poor public schools? Because one of the reasons for the disparity in funding between rich and poor schools is the structure of teacher contracts, which tie compensation to length of tenure. As Kevin Carey explains, imposing federal requirements on how districts spend money can be “disruptive” to these existing contracts. What’s more, unions have grown deeply opposed to a stronger federal role in public education. The Obama administration has used federal education funding as a lever to drive evidence-based reforms in education. And those reforms have often changed policies unions would like to keep in place — especially the longstanding practice of teacher tenure, which pays teachers on the basis of years served (rather than how well they teach), makes replacing ineffective teachers nearly impossible, and requires that layoffs be conducted on a last-in-first-out basis.

And so unions have increasingly defined their agenda as a defense of “local control” against — though they’re too delicate to use the term — big government. Diane Ravitch, the pro-teacher union activist, has written Wall Street Journal editorials repeating the “local control” mantra, and urging Republicans to roll back Obama’s reforms. On her blog, you can find Ravitch cheering on Alexander’s challenge to Obama’s education secretary, John King and hosting columns with titles like “The Federal Government Is the Enemy of Public Schools.” If they were not being made on behalf of a union, nobody would mistake these ideas for anything other than conservatism.

Chait might cry about Diane Ravitch saying mean things about Obama’s terrible education policy, but he evidently never got past the title, which is about the disaster of charter schools and No Child Left Behind. In this case, the federal government is indeed the enemy of public schools.

To say the least, Chait is misconstruing the arguments of the teachers’ unions. The argument about protecting their own contracts is not what Chait makes it out to be. It’s not as if the teachers’ unions have negotiated massively better contracts in rich school districts than in poor ones. Note where Chait plays around to make it look like the argument is about money:

Because one of the reasons for the disparity in funding between rich and poor schools is the structure of teacher contracts, which tie compensation to length of tenure. As Kevin Carey explains, imposing federal requirements on how districts spend money can be “disruptive” to these existing contracts.

This is disingenuous. If you link on the Carey piece, here’s what he writes:

Marguerite Roza, a Georgetown University scholar, has found that many districts spend up to a third less per pupil in poor schools compared with others. This can happen for various reasons: because wealthy parents unduly influence budget allocations, for example. It can also happen because most teachers are paid using collectively bargained salary schedules that reward longevity. Senior teachers tend to cluster in wealthy schools, while schools where many children are poor often churn through large numbers of novice, badly paid teachers.

But fixing such funding inequities can be expensive, as well as disruptive to longstanding arrangements of which teachers get to be in which schools. That’s why the unions, districts and state leaders wrote the letter urging Mr. King to “refrain from defining terms and aspects of the new law” — the essence of regulation — “especially as it relates to the ‘supplement, not supplant’ provision.”

This has nothing to do with money. It has a lot to do with two things Chait does not address. First, it’s about working conditions. The reality is that it’s easier for teachers to work in wealthier school districts or, more relevantly given how teacher employment works, in wealthier schools within the same district. I’m not saying it’s a good thing that experienced teachers leave poor schools for this reason, but on a personal level, who doesn’t understand this? Second, it has to do with the growing connections between test scores and employment. I and others have talked about how tying test scores to employment gives teachers additional incentive to get out of poor schools. Yet Chait doesn’t mention this at all, a policy he supports and castigates teacher unions for opposing.

It’s fine if you want to oppose the teachers’ unions on the policy question here. It’s really complicated. What needs to happen in education policy is that the pie needs to be larger, with the extra money going to poor schools. But that’s not going to happen. Chait admits the other issue, and in fact the only thing that is actually going to create equality of opportunity in education: fighting poverty.

Defenders of the status quo do have arguments, sort of. For instance, Laura Moser argued recently that teacher-tenure rules may be bad, but “the fight over teacher tenure is something of a red herring if you believe, as I tend to, that the real scourge of public schools isn’t bad teaching, but poverty and (re)segregation.” It is true that eliminating poverty, and finding a way to get rich and poor families to live side-by-side would do a great deal of good for the public-education system. But, on the off chance that this doesn’t get accomplished in the near term, the choice is to use the government to help poor students as effectively as possible in an unequal society, or leave them at the mercy of a system that is failing them.

Yes, actually, alleviating poverty is far and away the most important piece of the solution to school inequality. If Chait spent more time attacking Republicans for their many pro-poverty policies, this would be a lot more useful. Instead, he goes after unions, who are doing what unions are supposed to do, which is protect their own members. Right now, their members have some leeway to choose the school where they work. Why would they give that back in exchange for nothing but more testing and more firings for working in poor schools? I’m sure some 22 year old Teach for America kid straight out of Brown with no training can just replace those teachers!

When reading people like Chait, the question that comes to mind is, “How does he think liberal change actually takes place?” He and so many other nominally left-of-center pundits routinely define themselves as taking the most possibly left position and attacking anyone to the left of that. That’s because, I think, they have dreams of setting policy from nice offices in Washington, creating the Great Society without talking to any of the people this will affect, all no doubt while wearing great suits the likes of which they saw Don Draper wear. But if you want to create liberal policy, and if you look at the history of successful liberal policy making, what has to happen is on the ground activism. That means people in the streets, it means having buy-in from affected people, it means making deals with labor unions or even encouraging unions to take leading roles. The Social Security Act didn’t happen because FDR and Frances Perkins thought it was the right thing. The same with the National Labor Relations Act. LBJ didn’t push for the Civil Rights Act because he thought it was just good policy making. All of these things take social and political pressure from below. And people like Jonathan Chait hate the thought of that because activists can be intense and sometimes say mean things and yell a lot and might oppose you when you are a good smart college newspaper writer.

It’s not as if the teacher unions oppose better schools for poor kids. They think the Obama administration’s ideas are bad for their members. They want more money for poor schools. They don’t want to get fired for teaching in conditions that are out of their control. They reject the testing regime that is failing our students, forcing first graders to spend hours doing test-taking exercises where they once had recess and art. This is a disaster. Teachers’ unions oppose it. I think the Obama administration’s approach here is bad, as it has been on public education through its entire tenure. I think there could be compromises here–providing financial incentives for good teachers to teach in poor districts, disconnecting test scores from employment, etc. But of course, that’s not going to happen because the administration believes in Rheeism. So does Chait. They are both wrong.

Turns out Ken Starr hasn’t exactly been fired after all

[ 99 ] May 26, 2016 |

Apparently he’s being demoted all the way down to to adjunct professor custodian assistant vice president for bureaucratic redundancy Chancellor:

On Thursday Baylor University put out the following news release:

Board of Regents apologizes to Baylor Nation; Dr. David Garland named interim University President; Ken Starr transitions to role of Chancellor and remains professor at Baylor University Law School

Previous LGM coverage here.

Dan Markel killing being investigated as a murder for hire

[ 38 ] May 26, 2016 |

One arrest; more expected shortly.

Chinese Pollution, Chinese Philosophy

[ 42 ] May 26, 2016 |

pollution-chinese-air-people_9313

You owe it to yourself to read this interesting essay the intersection of Chinese philosophy and contemporary Chinese air pollution. Just a quick excerpt:

According to professor Liu, the Chinese word for pollution, 污染 [wu ran], has a very specific meaning. The first character of the word, 污 (wu), consists of 氵, the three dots of the ‘water’ radical that signified a meaning related to water, and the word 亏 (kui), which on its own means loss, or deficiency. The second character of pollution, 染 (ran), which also has the ‘three dots of water’ in it, means to infect, or to dye. In this sense, pollution in Chinese implies an action in which something foreign intrudes into something else, and by that, disturbs its purity. Taken literally, pollution is what happens when a foreign substance is mixed in with water, causing it to become impure.

Even though it might seem that the pollution is a recent problem, its seeds were sown much earlier, before China overtook the United States in 2015 to become the world’s largest economy, before China’s booming years in the 1990s when it became the world’s largest factory, and even before former leader Deng Xiaoping opened up China’s economy in the late 1970s to private enterprises and the rest of the world. According to the Professor, it was Mao who essentially changed China’s relationship to nature.

“In the past, Taoists believed that everything in the world, including humans, had to follow the rules of nature,” he explained. “But since Mao, we came to believe that we can manipulate the world to our own will.”

After the People’s Republic of China was officiated in 1949, Mao set out to transform the new nation from an agricultural society to an industrial powerhouse. Using newly developed scientific ideas and technologies, with much of its early stages based on the Soviet model, natural resources were all subjected to rapidly expand heavy industry, a maniacal increase in steel and coal production, and an amped-up agricultural yield by collectivizing traditional farms into agricultural co-operatives. Human lives were seen as natural resources too, and between 1958 and 1961, tens of millions of lives were lost in a famine caused by The Great Leap Forward, a Mao-led movement that urged farmers to prioritize steel production over farming, forcing many to melt their pots and pans in make-shift backyard furnaces to reach the steel quotas. The Professor traced the lineage of contemporary large-scale production and the technological conquering of nature back to Mao’s legacy.

“In the Mao era, [mankind] didn’t just think that [it] could manipulate nature, but believed that [it] should.”

These questions were very urgent to contemporary Chinese philosophers.

“What we care most about is: Is this the necessary road for humans, going from an agricultural to an industrial and then to a developed society? And in that, do we have to pollute?”

Of course, this was all just another way to get at the connections between personal wealth, national glory, and modernization, all of which has prioritized pollution over sustainability.

Read the whole, etc.

Don’t Look At Us, We Didn’t Do It!

[ 176 ] May 26, 2016 |

trump_n_mitt

Megan McArdle proposes that the Donald Trump taking over the Republican Party was an amazing coincidence the previous actions of party elites had nothing to do with. Jonathan Bernstein disposes:

Republicans had encouraged, or at least tolerated, schoolyard taunts and far-fetched conspiracy talk long before Trump’s campaign. He started out in Republican presidential politics by accusing the president of not being a U.S citizen, a slur that had been bandied about by many highly visible Republicans. He has now moved on to recycling conspiracy theories from 20 years ago about Hillary Clinton that were promoted at the time by talk-show hosts and Republican members of Congress.

The fact that Donald Trump rose to prominence within the Republican Party by promoting birtherism while Republican elites first looked the other way and then eagerly sought his support is indeed crucial.

Another part is how Republicans lowered the standards for their politicians. Normally voters might oppose Trump as flat-out unqualified for the job, both by lack of relevant experience and lack of knowledge of government and public affairs. But by giving a megaphone to people like Pat Robertson, Herman Cain, Ben Carson and Carly Fiorina, Republicans showed their voters what counts as a “normal” Republican presidential candidate — and it isn’t all that different from Donald Trump. Republican voters had many well-qualified candidates in 2016, but they had been taught by their party to ignore normal qualifications, and they did so.

Jonathan is actually leaving out the best example here: Sarah Palin. John McCain — at the urging of party elites — selected her to be second in line to the presidency with no input from the voters, and party elites and conservative pundits* strongly defended the choice contemporaneously. It’s pretty hard to convincingly claim that an ignorant buffoon like Donald Trump isn’t a serious candidate for president when you’ve put an ignorant buffoon on a presidential ticket. (And while George W. Bush was not as unqualified as Palin, the proudly ill-informed anti-intellectualism that was central to his shtick was not incidental to the rise of figures like Trump.)

That same observation can be made about how Republicans have tolerated and promoted bigotry, forging a path for Trump to go even further. McArdle is wrong to say that the Republicans’ “Southern strategy” of the Richard Nixon era was only incidentally pitched to bigots. In 1968, Nixon was clearly and deliberately going after pro-segregation voters abandoned by the Democratic Party, a strategy continued (for example) by Lee Atwater in the 1988 presidential race on behalf of George H.W. Bush.

Right, the southern strategy had nothing to do with racism. When, say, Richard Nixon worked with the not-at-all-racist Strom Thurmond’s top political advisor to try to gut the Voting Rights Act, that had nothing to do with race.

The idea that the Republican Party doesn’t own Trump is simply absurd.

*Guess which conservative pundit said the following things when McCain selected Palin:

This woman is an Obama-level political natural. She is a ferociously good speaker, and almost preternaturally composed.

The Democrats are, as my colleague Clive Crooks notes, in trouble. Whatever you think of her as a potential president, she is a politically brilliant choice, and Democrats are going to have a very hard time finding traction to attack her.

I have no reason to think that she would be a particularly bad president. Obama hasn’t any more relevant experience than she has; he’s simply been coaching for the thing longer.

The fact that Republican voters took Donald Trump seriously is truly mysterious.

…much more here.

Octopus!

[ 44 ] May 26, 2016 |

The_Curse_of_California

It seems that the octopi may be allying with the cats, jellyfish, and apes to declare war on the human race.

So, why are cephalopods kicking butt when pretty much everything else in the oceans is dying? Doubleday and her co-authors are still investigating, but they suspect it has to do with rapid population turnover rates. “Cephalopods tend to boom and bust—they’re called the weeds of the sea,” Doubleday said. “If environmental conditions are good, they can rapidly exploit those conditions because they grow so fast.”

One reason environmental conditions might have improved is that humans are picking off cephalopods’ main competitors—predatory fish. Other large-scale changes like global warming could also be playing a role. “I don’t think it’s any one single factor,” Doubleday said. “But something’s changing on quite a large scale that’s giving cephalopods an edge.”

Sounds like an Axis of Oceanic Evil to me.

More seriously, is this connected to climate change? Maybe.

As the oceans continue to change, the long-term fate of all marine organisms remains uncertain. For instance, early laboratory evidence suggests that ocean acidification might impair the development of some cephalopods. And as squid and octopuses become a larger part of human diets, we’re harvesting more cephalopods from the sea than ever before.

Another strange possibility is that cephalopods will become too weedy and run out of food. If that happens? “They’re highly cannibalistic—they might start eating each other if they overgrow,” Doubleday said.

In short, it’s too early to predict whether octopuses will continue to boom or whether the oceans will devolve into a frenzied cannibalism fest. Still, if an intelligent race of tentacled underwater beings winds up outmaneuvering us and taking over the planet, we can’t say there weren’t warning signs.

Domino’s Wage Theft

[ 89 ] May 26, 2016 |

RTX1315R

Not only is the pizza inedible, but Domino’s also steals money from its already low-wage workers.

The workers who assembled and delivered the pie clock their hours on a computer system, and those workers are then paid.

But for years, according to the lawsuit against the corporate franchiser that owns Domino’s Pizza, the computer system used by franchises across the state systematically undercounted hours worked by employees, shortchanging them hundreds of thousands of dollars.

The lawsuit, announced on Tuesday, was the latest salvo in a campaign by the attorney general, Eric T. Schneiderman, against what he says is a pattern of corporations shortchanging low-wage workers.

Since 2011, Mr. Schneiderman has secured more than $26 million for almost 20,000 workers who were bilked of wages.

But unlike past cases, this one directly targets the corporate franchiser. If the state wins, Mr. Schneiderman hopes the case sets a precedent that makes it harder for corporations that run franchise businesses to avoid responsibility for the actions taken by the stores under their corporate umbrella.

“Wage theft is an epidemic causing harm to low-wage workers struggling to support their families every single day,” Mr. Schneiderman said in a statement.

The real importance here is moving the lawsuit away from the franchise to the corporation. This is absolutely critical in labor rights because it peels back one of the strategies used by corporations to shield itself from legal responsibility. Fast food chains like Domino’s routinely control costs by telling franchiers what to do, but then take no responsibility for what happens. If you want to change that, you have to fight for parent corporate legal repercussions for what happens at the franchise level. The same goes for subcontractors and temp agencies.

The surge in lawsuits, according to labor advocates, is a reflection of the changing nature of the American workplace.

Increasingly, corporations are using franchises, subcontractors and temp companies to fill jobs. One result is fierce competition to fill jobs with people who will work for the lowest possible wages. And, in turn, corporate franchisers can insulate themselves from charges of wage violations by creating a degree of separation between the corporation and the employees.

All of this needs to be a major front in the war on worker exploitation.

The Wages Of Inequality, Cont’d

[ 185 ] May 26, 2016 |

Hulkamania

If a plutocrat wants to destroy a media outlet, it will be almost impossible for all but the best-capitalized to stop:

Thiel’s interview with the New York Times about his legal campaign, in which a $10 million investment on lawyers managed to bring an entire media company to the brink of disaster, is the new required reading in Silicon Valley, especially the bit where he says that it’s “one of my greater philanthropic things that I’ve done.”

Thiel, like most Silicon Valley entrepreneurs, loves to think of himself as a visionary. His first company, PayPal, started as an attempt to create a whole new global currency; since then he has invested most of his time and money into ambitious attempts to change the world. But it’s his investment in a campaign against Gawker, intended to inflict as much damage as he can on Gawker Media and its proprietor, Nick Denton, which could prove to be his most effective – and his most harmful.

Thiel’s tactics in going after Gawker are very, very frightening for anybody who believes in freedom of speech; they’re also extremely effective, in an evil-genius kind of way.

[…]

It gets worse. If Thiel’s strategy works against Gawker, it could be used by any billionaire against any media organization. Sheldon Adelson, Donald Trump, the list goes on and on. Up until now, they’ve mostly been content suing news organizations as plaintiffs, over stories which name them. But Thiel has shown them how to go thermonuclear: bankroll other lawsuits, as many as it takes, and bankrupt the news organization that way. Very few companies have the legal wherewithal to withstand such a barrage.

This is a problem that’s likely to get worse before it gets better.

…JMM:

It all comes down to a simple point. You may not like Gawker. They’ve published stories I would have been ashamed to publish. But if the extremely wealthy, under a veil secrecy, can destroy publications they want to silence, that’s a far bigger threat to freedom of the press than most of the things we commonly worry about on that front. If this is the new weapon in the arsenal of the super rich, few publications will have the resources or the death wish to scrutinize them closely.

The Hogan case, it must be admitted, is not one that makes Gawker look very sympathetic. Hogan’s lawsuit was not at all frivolous, even if the size of judgment was far too high, and even if we assumed arguendo that Gawker didn’t violate Hogan’s legal rights it showed horrible judgment in publishing sex tapes without his consent. But whatever one thinks about the case at hand, the tactics being used against them can be used against anybody.

Salmon, Dams, and Climate Change

[ 11 ] May 25, 2016 |

prd_007630

As the endless battle to manage salmon in the Columbia River basin marches on, the courts are now forcing the govenrment agencies that manage salmon to respond to new data on how climate change will affect the salmon, making a harder case that the government is actually protecting the salmon under the Endangered Species Act.

Joseph Bogaard, executive director of Save Our Wild Salmon, says, “This is a very significant — and significantly different — ruling.”

A week after the decision, a spokesman for the losing party, NOAA Fisheries (aka the National Marine Fisheries Service), declined to comment on it. He said federal agencies at the regional and national levels were still discussing what comes next. Thirteen Columbia River system salmon population have been listed for protection under the Endangered Species Act since 1991. So, the U.S. Army Corps of Engineers, the Bureau of Reclamation, and the Bonneville Power Administration, which operates and sell power from the dams, have had to consult on Columbia policies with NOAA Fisheries, which has had to issue biological opinions.

This time around, Judge Simon basically said that NOAA Fisheries had offered up the same old, same old — and that wasn’t good enough. The most recent BiOp, he said, “continues down the same well-worn and legally insufficient path taken during the last 20 years.” He also faulted it for relying on “a recovery standard that ignores the dangerously low abundance levels of many of the populations of the listed species.”

That flawed standard is “trending toward recovery,” something the Bush administration dreamed up for the 2008 BiOp and the Obama administration subsequently embraced. Basically, trending toward recovery means that if you have more fish this year than last, you’re not jeopardizing the long-term survival of the fish. It ignores the fact that a) it may take a long, long time to get the numbers up to a sustainable level; and b) at low numbers, a population runs a high risk of going extinct. “Without ‘trending toward recovery,’ ” says Earthjustice attorney Steve Mashuda, “the bar [for future BiOps] is automatically higher.”

The 2014 BiOp was chock-full of information on climate change, but it was devoid of any specific new action to deal with changing climate. Mashuda pointed out at the time that there were two threats — the river conditions that have reduced fish runs and climate change — “and they’re using the same bullet on both of them. That just doesn’t work.” Since then, climate and our knowledge of its effects have marched on. Mashuda now points to last summer when high water temperatures led to the death of nearly half the sockeye that started up the river, including virtually all of those bound for Idaho.

Simon’s opinion called attention to the BiOp’s lack of both new climate information and new proposals to deal with climate change. He said “the court is troubled” by NOAA Fisheries’ apparent effort to ensure that “the climate literature reviews . . . bolstered NOAA Fisheries’ contention that all new climate information is encompassed by NOAA Fisheries’ previous analysis.”

None of this really gives me hope that the government will effectively respond to the problem or that the unnecessary dams on the Snake River will be torn down to restore salmon habitat, but it’s good news nonetheless.

Fallen Starr

[ 105 ] May 25, 2016 |

ken-starr-leaving-pepperdine-law-for-baylor

Ken Starr might outdo Inspector Javert when it comes to the consensual sex of political enemies. When it comes to sexual assault by his football players, not so much:

Ken Starr isn’t exactly in Bill Cosby territory, but with the revelation that he’s apparently being canned from the presidency of Baylor University for ignoring charges of sexual misconduct by football players, he has made himself into one of the most exquisite hypocrites of our age. (I should note that the university, responding to reports Tuesday of Starr’s impending dismissal, refused to confirm the news, although it didn’t deny it either.)

Here is morality according to Starr, who by the way is (of course) a great Christian. It’s appropriate to expose sexual misconduct (wrong, but consensual) when it gives you a shot at bringing down a president you loathe and creating a constitutional crisis over a few blow jobs. But when sexual misconduct risks messing with the football team, well by God, you brush it under the rug! You’re in Texas, boy.

A great deal of excellent background here. And it shouldn’t just be Starr’s head that metaphorically rolls here either.

…More here.

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