On The Hill

Nurses Assn. Praises House Vote to Permit State Single-Payer Laws

2009-07-17T06:16:00.005-04:00

The nation's largest union and professional association of registered nurses is hailing passage of a key amendment in the House Education and Labor Committee to the national healthcare reform bill this morning that would enable individual states to go a step farther and adopt single-payer style reforms.

Introduced by Rep. Dennis Kucinich (D-Ohio), the amendment would remove potential legal impediments for states to pass single-payer bills by waiving federal exemptions that apply to employer-sponsored health plans, according to a statement from the California Nurses Association/National Nurses Organizing Committee.

The amendment passed on a bi-partisan vote of 25-19, with the support of both progressive, single-payer Democrats and many Republicans who endorsed the ability of individual states to pass their own versions of health care reform, the nurses group says.

The Kucinich amendment passed as the committee approved the overall House health reform package, America’s Affordable Health Choices Act, H.R. 3200, by a vote of 26-22. The legislation is expected to be considered by the full House of Representatives in the coming weeks. President Obama has made enactment of comprehensive healthcare reform this year one of his top priorities.

"This is a historic moment for patients, for American families, and for the tens of thousands of nurses and other single-payer activists from coast to coast who can now work in state capitols to pass single-payer bills, the strongest, most effective solution of all to our healthcare crisis," says Rose Ann DeMoro, executive director of the California Nurses Association/National Nurses Organizing Committee. The group, which says it has 86,000 members in all 50 states, has been a vocal proponent of a single-payer model.

"There are many models of health care reform from which to choose around the world - the vast majority of which perform far better than ours. The one that has been the most tested here and abroad is single-payer," says Kucinich in urging passage of the amendment. Kucinich has long been an advocate of a single-payer health plan.

A statement from the House committee says that the overall America’s Affordable Health Choices Act is consistent with Obama’s overall goals of building on what works within the current health care system by strengthening employer-provided care, while fixing what is broken. According to the Congressional Budget Office, the bill will cover 97 percent of Americans by 2015, and 2 million more Americans will have employer-provided health plans by 2019, the statement adds.

“Health care reform is moving forward. This legislation will reduce costs that are crushing workers, families and businesses alike and it will ensure that patients – not insurance companies – hold the power to make decisions about their care,” says Rep. George Miller (D-Calif.), chairman of the committee. “These reforms will save jobs, create millions of new careers, improve the health of our workforce and help rebuild our nation’s middle class. Today’s vote is a monumental step forward in our journey to finally fix our broken health care system.”

A key Senate panel approved its version of healthcare reform legislation this week.

The nurses group notes that there is a long road ahead for the Kucinich single-payer amendment. It will still need approval from the full House and in a final version from the Senate.
For those who have opposed the proposal, DeMoro calls it "a very modest amendment that simply protects choice for residents of individual states who favor more comprehensive reform."

Currently, if states were to pass single-payer laws, as California, for one, has twice, only to have the bill vetoed by GOP Gov. Arnold Schwarzenegger, it could be subject to immediate legal challenge due to the federal Employee Retirement Income Security Act (ERISA) which applies to all employer-paid health plans. The Kucinich amendment would provide an ERISA waiver.

To view a complete summary of the legislation, click here.

To view detailed House fact sheets and more information on the House health care reform proposals, click here.

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Natural Gas Advocate Takes Gas Industry to Task

2009-07-16T18:02:00.003-04:00

by Abrahm Lustgarten, ProPublica

They were tough words for the natural gas industry to hear. In a blunt speech before the Colorado Oil and Gas Association last week, Timothy Wirth, a former Colorado Democratic senator and Under Secretary of State for global affairs in the Clinton administration, warned industry leaders that they need to pay attention to the environmental and climate concerns that are shaping national policy, or risk being left behind.

Wirth took the industry to task for not engaging in the climate legislation being debated in Congress -- a bill he said every other energy industry was deeply involved in -- and for fighting the changes taking place in energy policy rather than participating and seeking fresh opportunities.

Wirth, who today is president of Ted Turner's United Nations Foundation, is no enemy of the oil and gas industry. He described clean-burning natural gas as the single most important component of a new energy supply chain that can help cut greenhouse gas emissions, and he said the use of nation's bountiful natural gas reserves is essential to curbing climate change. But he also said the industry is preoccupied with the wrong priorities and is off message.

"The time has come for the natural gas industry to get organized, take the gloves off, and get thoroughly engaged in helping our country advance rapidly toward a low-carbon economy," Wirth said.

In his speech he offered some advice: The industry should identify its key priorities, work to get its regulatory house in order and recognize the big picture rather than complain about details in legislation like the climate bill.

"What are the options?" he asked the industry executives in a question and answer session after his speech. "You can stay where you are today. ... Your industry is going to continue to wallow. That's your own choice."

You can watch a video of Wirth's July 8 speech or read the entire text here (PDF).

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Some Bailout Transparency Promises Remain Unkept

2009-07-16T06:06:00.005-04:00

By Paul Kiel, ProPublica

In June, we reported that the Treasury Department had failed to keep a key transparency promise. Falling well short of Secretary Timothy Geithner’s pledge in January “to place all of our TARP investment agreements on the Internet,” we found that less than half had been posted on the department’s Web site.

Since then, Treasury has posted 153 contracts. But there’s still a ways to go. Our review Monday showed that contracts had been posted for only 420 of the 646 banks that received money through the main bailout program, or about 65 percent. For the remaining 226 institutions, taxpayers wanting to see “how their money is being spent and the terms these institutions must agree to before we invest taxpayer money” (as Geithner put it) are out of luck.

So our promise clock will keep on ticking.

That’s not the only transparency promise Treasury hasn’t kept. When Geithner announced his new bailout plan in February, he made a slew of other promises:

The American people will be able to see where their tax dollars are going and the return on their government’s investment, they will be able to see whether the conditions placed on banks and institutions are being met and enforced, they will be able to see whether boards of directors are being responsible with taxpayer dollars and how they’re compensating their executives, and they will be able to see how these actions are impacting the overall flow of lending and the cost of borrowing.

These new requirements, which will be available on a new Web site FinancialStability.gov, will give the American people the transparency they deserve.

You can find a few of these things on Treasury’s Web site, such as reports showing Treasury’s investments and a page devoted to broader economic data. But if the American people go looking to see “whether the conditions placed on banks and institutions are being met and enforced” or “whether boards of directors are being responsible with taxpayer dollars and how they’re compensating their executives,” they’ll get nowhere, because there’s nothing fitting that description on the Web site or anywhere else.

The best bet for discovering how execs at bailed-out banks are being paid is an upcoming audit by the special inspector general for the TARP, which conducted a survey (PDF) of all TARP recipients toward the beginning of this year. You could also check out our June report on execs who received golden parachutes. But you won’t get that information from the Treasury Department’s Web site.

Treasury did not respond to our questions about these promises.

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Details of Some AIG Sales Kept From Public

2009-07-15T18:41:00.004-04:00

By Sharona Coutts, ProPublica

AIG has sold a dozen of its subsidiaries since April as part of its effort to repay the $85 billion it owes the American taxpayer.

That should be good news, right?

Well, actually, we don’t know for sure, because the company is not disclosing what it got for nearly half the companies that have been sold.

AIG has made public the financial terms of seven of the transactions, including the sale of its iconic building in Tokyo for $1.2 billion and six insurance subsidiaries for a combined total of more $5 billion.

But for five other transactions, the company is keeping the numbers a secret.

AIG says there’s no particular reason why it won’t tell the public how much it is getting for the companies, which include consumer finance operations in Mexico and Argentina and a bank subsidiary in Russia.

“It’s decided on a case-by-case basis,” said spokeswoman Lauren Day. “It’s a function of the preference of the buyer.”

But financial analyst Sylvain Raynes thinks AIG has an obligation to be more open given that taxpayers own 80 percent of the company.

“There’s nothing wrong with private transactions between consenting adults,” said Raynes, founder of R&R Consulting, a firm that analyzes market risk. “But when the government is involved, everything changes.”

The company needs to get good prices to improve its prospects of repaying the bailout, Raynes said. But the lack of transparency means the public cannot gauge whether that is happening.

“I’m sure they’re not getting a good deal,” he said. “If you buy from someone who’s desperate, what do you think? That’s probably why they’re not talking about it.”

It’s possible the two government entities most directly involved with AIG—the Treasury and the Federal Reserve —know more about what the transactions were worth. But neither would say for sure.

The Fed referred us back to AIG, and a Treasury official did not directly answer our question, saying instead that the agency is monitoring the transactions and will keep the information confidential until “binding” sales are announced.

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Top Dems Promise Blue Dogs Won't Keep Public Option Out Of Health Reform

2009-07-15T08:06:00.007-04:00

Conservative Democrats won't keep a public option from being part of the healthcare reform plan that will come out of the House of Representatives, top House Democrats promise.

Speaker Nancy Pelosi, Majority Leader Steny Hoyer, and other top House Democrats yesterday officially introduced their House health reform plan, known as America's Affordable Health Choices Act.

The 52-member Blue Dog coalition of conservative House Democrats long have been wary of a public option to provide Americans a government-run alternative to private insurance if they want it. President Obama, who has made enactment of healthcare reform a top priority of his this year, strongly endorses inclusion of a public option. Opinion polls indicate Americans broadly support inclusion of a public option.

Speaking yesterday alongside Hoyer and other leaders of the reform plan, Pelosi assures that "we will have a strong level-playing-field public option, and some of the concerns raised by the Blue Dogs were well taken."

The Blue Dog group last week sent a letter to Pelosi and Hoyer outlining their unease with the current proposals. The coalition's opposition to a public option revolves around the level of compensation health providers would receive under a government-run program, as well as whether provider participation in such a plan would be voluntary, according to the letter.

Consensus against a public option among Blue Dogs is not uniform, says Rep. Henry Waxman (D-Calif.). Waxman heads one of the three House panels that put together the House reform plan.

"It's not a correct statement to say they're against a public option. They want some changes in the public option," Waxman says, speaking at the press conference with Pelosi. "Some would prefer not to have a public option, but we have to bring everybody together, because a large part of our Democratic Caucus wants a public option, as does the President of the United States."

Speaking yesterday alongside Pelosi, Hoyer, and other architects of the House health reform bill, Waxman says that addressing the concerns of the Blue Dogs -- whose support is critical to pass a bill this summer -- is not antithetical to approving a health plan with a public option.

"... Their main focus -- and I welcome this -- is to reduce the costs in this legislation, and in that regard we're going to work with them to achieve those goals and to get a bill that all of us can support," Waxman says. "The Democratic Party's a big tent. We have different parts of it pushing for different aspects of the problem, and we all have to come together, compromise, and work out our differences, and then stand behind legislation that will accomplish this important goal."

For his part, Hoyer says "all 52 members of the Blue Dogs" support enactment of health reform overall.

"The Blue Dogs have a perspective, like all of us. It's not unanimous, but a very significant focus, which is shared by them," Hoyer says. "But because they are in favor of the objective, I expect and have seen them working very hard to get to a place where we would create the consensus for a significant majority for this bill before we leave here in August."

Hoyer also promises the House reform bill won't take away Americans' choices for their healthcare, which has been another line of attack used broadly by reform opponents.

"... I've had some Americans say, 'Don't mess with my health care.' We heard what they said. And if they like what they have, they keep what they have," Hoyer says. "This does not mandate any changes and they will have choice of doctor and hospital. This does not in any way undermine. But what it does do, it gives them the security that if they should lose their job or their economic circumstances should change and they can't afford health insurance that they used to have, now have, this ensures that they will have that insurance.

Hoyer adds that the House plan is "on schedule" and is "going to be paid for."

"I don't know if we'll be under budget, but we'll be on budget," he says. "We're going to pay for this bill. We're not going to add additional debt to the American people."

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Disappearance of Privacy Board From White House Web Site Raises Questions

2009-07-15T06:35:00.003-04:00

By Christopher Flavelle, ProPublica

The White House has erased all mention of the Privacy and Civil Liberties Oversight Board from its Web site. The removal, which was done wth no public notice, has underlined questions about the Obama administration’s commitment to the board, which was created on the recommendation of the 9/11 Commission to oversee the federal government’s actions on civil liberties and privacy.

ProPublica’s ChangeTracker, which monitors changes to WhiteHouse.gov, detected the deletion on the page that lists the entities encompassed within the Executive Office of the President. (Here’s the page in question, before and after the change.)

The board has always existed in a kind of bureaucratic purgatory. In December 2004, Congress passed a law on intelligence reform that created the board. However, President Bush waited six months before nominating anyone to sit on the board, and it wasn’t until March 2006 that the board first met. A year later, one of the board’s members, Lanny Davis, a former Clinton official, resigned, saying other members saw the board as “wholly part of the White House staff and political structure, rather than an independent oversight entity.”

In 2007, Congress attempted to give the board more independence by making all its members subject to Senate approval, rather than just the chairman and vice chairman, and giving each member fixed terms, rather than having them serve at the pleasure of the president. President Bush waited until February 2008 to send Congress his nominations for the reconstituted board. Congress returned the favor by sitting on the nominations, perhaps in the hopes of waiting for a new administration. When Congress adjourned at the end of 2008, the board was unfilled and in limbo. (A Congressional Research Service report (PDF) has more on the board’s tumultuous history.)

This spring, the Obama administration released a document called the Cyberspace Policy Review (PDF), which said in order to balance civil liberties with security, “It is important to reconstitute the Privacy and Civil Liberties Oversight Board [and] accelerate the selection process for its board members.” (Politifact is tracking the pledge.)

The report was released in May. Seven weeks later, President Obama has yet to announce any candidates to be nominated to the board. In fact, the only evidence of action on the board that we could find was its deletion from WhiteHouse.gov.

The White House refused to comment about the decision to remove the board from its Web site. However, an administration spokesperson—who insisted on not being named—said in an e-mail to us:

This board was never filled by the prior administration. Protecting civil
liberties and privacy is a major priority for President Obama, one he takes as
seriously as possible. The Obama Administration is reviewing how to best ensure
that there is a functioning entity in place to do this important work.

Thomas Kean, the chairman of the 9/11 Commission, told ProPublica that the administration’s failure so far to move forward on the board was “extremely disappointing.”

“We’ve been looking forward eagerly to the time when some good strong members would be appointed by the [Obama] administration,” said Kean. “I would think that having a permanent board to protect civil liberties would be something the Obama administration would embrace. I can’t believe we can’t find good men and women to support this cause.”

When asked at what point the administration’s claims that it needs more time to reconstitute the board would become unreasonable, Kean responded, “We’re approaching it now.”

Ari Schwartz, vice president of the Center for Democracy and Technology, which pledged (PDF) in June to hold the Obama administration accountable for its pledge to reconstitute the board, said his organization wants to know when the administration will move forward.

“We have concerns about the speed they’re moving,” said Schwartz. “It’s been in law for years now, and we’ve never had a functioning board. They said it was important in May. It’s time this thing exists.”

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As Climate Bill Falters In Senate, Advocates See A Carbon Tax As 'Plan B'

2009-07-14T07:58:00.006-04:00

Wit the current cap-and-trade bill facing an uncertain future in the Senate after narrow vote to approve in the House, advocates once again see an opening for a carbon tax to deal with the issue of climate change.

At a Senate briefing yesterday, a panel of scientific, economic and legal experts discussed the drawbacks of the cap-and-trade approach and advocated a direct tax on carbon emissions with revenue returned to the public, preferably through payroll taxes reductions, as the best approach to passing effective climate legislation.

Last Thursday, Senate Environment and Public Works Committee Chairman Barbara Boxer (D-Calif.) announced that the Senate's climate change bill won't be ready until some time after lawmakers return from August recess, a month later than previously planned. The delay raises doubts about whether the current bill has enough votes to pass.

The House bill, the American Clean Energy and Security Act, passed by only a slim margin of 219-212, after last-minute deal-making. Only eight Republicans supporting the measure, and scores of progressive and environmentally-oriented Democrats voting against it. The bill was authored by House energy chairmen Henry Waxman (D-Calif.) and Ed Markey (D-Mass.).

Supporters of a carbon tax, which would institute a direct levy on carbon emissions, have not made much headway on Capitol Hill, but see the political weakness of the current cap-and-trade legislation as a new opening.

"The political weakness of Waxman-Markey is actually a positive sign for the climate," says Marshal Saunders, president of Citizens Climate Lobby. "Cap-and-trade is a very tough sell in the Senate. If Congress has any hope of passing meaningful climate change legislation, it will have to consider Plan B -- a revenue-neutral tax on carbon pollution. Waxman-Markey stalling in the Senate could be a turning point towards something that will actually work."

Some lawmakers have openly admitted that being dubbed a "tax" would make instituting a new carbon tax a political nightmare.

"The Senate must do better than the House," says Tom Stokes, coordinator of the Climate Crisis Coalition. "Cap-and-trade tries to hide the carbon price, which gives opponents license to make outrageous claims about its cost. In contrast, the cost of a revenue-neutral carbon tax would be clearly known. With unemployment at 9.5% and consumer spending down, using carbon revenues to boost every worker's take-home pay will help address both the climate and the economic crisis."

Panelist and renowned NASA climate scientist James Hansen, argues the Waxman-Markey approach would fail to reduce carbon emissions enough to prevent catastrophic warming.

"Continuing to increase burning coal, oil and gas will soon drive atmospheric CO2 well over 400 ppm and ignite a devil's cauldron of melted icecaps, bubbling permafrost, and combustible forests from which there will be no turning back," Hansen says. "The Waxman-Markey bill locks in fossil fuel business-as-usual and garlands it with a Ponzi-like 'cap-and-trade' scheme... It sets meager targets -- 2020 emissions are to be a paltry 13% less than this year's level, far short of the trajectory needed to return atmospheric CO2 to safe levels -- and the bill sabotages even these by permitting unverifiable 'offsets,' by which other nations are paid for projects, most of which would have been undertaken anyway. A far superior alternative to cap-and-trade is a rising carbon fee, which provides the best incentive to move to ever higher energy efficiencies and carbon-free energy sources. As engineering and cultural tipping points are reached, the phase-over to post-fossil energy sources will accelerate."

Panelist Robert Shapiro, under secretary of commerce during the Clinton administration, pointed out that the trading component of cap-and-trade -- buying and selling permits to release carbon dioxide -- would also create a trillion-dollar market in carbon futures and derivatives that could crash financial markets again.

He wrote in April, "The unavoidable volatility of the prices of emission permits... would attract furious financial speculation, since speculators live off of volatile prices. And we now know the risks that we all run when rampant speculation occurs in financial instruments tied to our economic foundations, such as housing -- or energy."

Panelist and Vermont Law School professor Janet Milne cites the carbon tax's recent track record outside the United States as evidence of its political strength. In British Columbia, Premier Gordon Campbell and his Liberal Party passed a revenue-neutral carbon tax last summer, and despite an aggressive campaign against it, went on to win reelection in May.

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Democrats Call for Studies as Industry Assails Proposals to Regulate Hydraulic Fracturing

2009-07-14T06:26:00.002-04:00

By Abrahm Lustgarten, ProPublica

Legislators who've been pushing a bill to regulate a controversial natural gas drilling process are now calling for further scientific study, a change in tack made under intense lobbying pressure and after a personal request from Colorado's Democratic governor.

If the lawmakers wait for the results of a study, the bill is unlikely to move forward any time soon.

Rep. Diana DeGette, D-Colo., and Rep. Maurice Hinchey, D-N.Y., two of the sponsors of the so-called FRAC Act (PDF), a House bill that would establish federal environmental controls over the process of hydraulic fracturing, are now calling for committee hearings and renewed research into the environmental impacts of the drilling method. Last month, Hinchey attached a provision authorizing funding for such a study to a House appropriations bill.

In an interview this week, Hinchey told ProPublica he is not backing off the FRAC Act. He said he is concerned about new reports of water contamination from drilling and thinks a study could bring those incidents to the forefront of the debate.

"What we want to do is make it clear what is going on," Hinchey said. "The appropriations bill is an incremental step. It will continue to focus attention on this."

Asked whether the FRAC Act is losing momentum, Hinchey pointed out that the bill now has 13 sponsors, 10 more than it had in June. But he acknowledged that the energy industry's opposition to the bill has swayed some members of Congress. "It's not moving forward with the rapidity that I would like to see it move forward," he said.

That may be in part because of the difficulties of bringing diverse perspectives together on energy and economic issues, including within the Democratic Party.

In a speech Thursday before the Colorado Oil and Gas Association, a prominent industry trade group, Colorado Gov. Bill Ritter, a Democrat, assured the group of his support for the natural gas businesses and said he had asked DeGette not to pursue the legislation.

"I encouraged Congresswoman DeGette to consider authorizing a comprehensive study of this issue instead of going directly to a new and potentially intrusive regulatory program," the governor said. "She agreed at that time to go instead to something that would be more in the way of a study instead of an amendment that would prescribe a certain way of every state having to put in place these rules. I thank the congresswoman for having done that."

DeGette, who has been trying to pass fracturing legislation since 2005, confirmed through a spokesman that she and the governor had spoken last month, but said that she had not agreed to abandon the legislation.

"She understands his concerns," said her spokesman, Kristofer Eisenla, "but all options remain on the table. She is moving forward with a potential hearing, and with a study which she would welcome the industry to be a part of."

In an earlier interview, Eisenla said that the information campaign undertaken by the bill's opponents had surprised legislators and slowed their progress.

"The oil and gas guys came out of the barn storming," he said. "I think that opposition has been throwing out scare tactics and mischaracterizations of what she is trying to do."

At least five reports (PDF) have been issued since January arguing that the proposed legislation -- which would give the Environmental Protection Agency authority to investigate fracturing accidents and to dictate how the process is done -- would hamper exploration (PDF), raise fuel prices and cost Americans jobs and energy.

The industry maintains that state regulations already protect drinking water from hydraulic fracturing, a process that forces vast amounts of water laced with chemicals underground to break up rock and release gas. In Thursday's speech, Ritter touted Colorado's new rules as an example of strong state regulation, and later that day an industry group sent out a news release underscoring his statement. What neither mentioned at the time: the Colorado Oil and Gas Association is suing Colorado to block those rules.

The reports supporting the industry's arguments were examined in a recent article by ProPublica, which found that the economic assessments were exaggerated and based in part on 10-year-old data (PDF). Three of the reports were paid for by the Department of Energy but produced by consulting firms that also work for the oil and gas industry. One of the DOE reports (PDF) was written by the same person who produced a study for the Independent Petroleum Association of America -- and bore a nearly identical cover.

The oil and gas industry has spent millions of dollars lobbying against fracturing regulation over the last two years. In May, it launched a Web site that disputes criticism of industry and argues against regulation.

As a result, Eisenla said, the true content of the FRAC Act and its implications for the oil and gas industry have become muddled in a thicket of rhetoric and misleading data.

The bill proposes to remove an exemption that was written into the Safe Drinking Water Act (SDWA) in 2005 that says hydraulic fracturing is not subject to regulation. It would also require drilling companies to disclose the names of the chemicals they pump underground, information that is currently a protected trade secret. If the act is passed, hydraulic fracturing would be governed by the portion of the SDWA that controls what is injected into underground wells and how it is done.

According to the EPA, the oil and gas industry is the only industry exempted from oversight under one of the nation's landmark laws to protect drinking water.

Representatives of the energy industry say the 2005 legislation wasn't an exemption as much as a clarification of the law. They maintain that the Safe Drinking Water Act didn't explicitly apply to hydraulic fracturing until 2001, when the 11th Circuit Court of Appeals forced the EPA to oversee the process in Alabama. At the time the EPA wasn't using the SDWA rules to monitor hydraulic fracturing, then an emerging technology.

Whether the EPA applied the SDWA to fracturing or not, prior to 2005 it had the authority to do so, according to the agency's former assistant administrator for water, Benjamin Grumbles. Now it does not.

Industry analysts, including at the American Petroleum Institute, maintain that hydraulic fracturing shouldn't be subject to Safe Drinking Water Act regulations that address injection disposal, because the fluids aren't disposed of underground. But the analysts also acknowledge that 30 to 70 percent (PDF) of fracturing fluids can be left underground after the process is completed, and that hydraulic fracturing with chemicals is far more prevalent today than when the Safe Drinking Water Act was written or when courts were examining the issue in Alabama.

The language of the SDWA explicitly gives states authority to enforce the law as long as they meet basic federal criteria. So if federal authority is restored, state regulations would be superseded only if the EPA deemed them insufficient.

The proposed bill would not ban hydraulic fracturing. Nor does the bill, or the Safe Drinking Water Act, require the expensive processes that one industry report said it does.

"Because there has never been any federal regulation of hydraulic fracturing, we have to make some assumptions based on what could be done," said Lee Fuller, vice president for government relations at the Independent Petroleum Association of America. "It's an educated guess based on what the history of regulation has been and the kinds of requirements they would plausibly think that the EPA might require."

Several industry representatives have told ProPublica that what is really driving their opposition to the FRAC Act is their worst fear: that if EPA authority is restored, a suite of lawsuits from environmental organizations will follow, forcing the agency to issue tougher regulations -- possibly even creating a new class of laws for fracturing -- and grinding business to a halt while the issues play out in court.

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Watchdog Group: Judge Sotomayor Would Take On 'Big Money In Politics'

2009-07-13T07:20:00.006-04:00

As Judge Sonia Sotomayor's Supreme Court nomination began to get its hearing in the Senate, a campaign watchdog group says Sotomayor has a proven track record of taking on the issue of "big money in politics." The same group also took issue with the top Senate Republican's opposition to her nomination, saying Senate Republican Leader Mitch McConnell prefers to maintain a "pay-for-play" system in politics.

"Judge Sotomayor's positions on campaign finance are squarely in the mainstream of judicial precedent and public opinion," says Nick Nyhart, executive director of Public Campaign Action Fund. "From her service on the New York City Campaign Finance Board to her written opinions on the need to address the problem of big money in politics, Sotomayor has demonstrated a commitment to enhance the ability of all voices to be heard in our democracy. Her rulings show a pattern of supporting speech for the many and not just those who can afford to give large campaign contributions."

Public Campaign describes itself as a national nonprofit organization dedicated to passing comprehensive campaign finance reform at the local, state, and national levels. The organization says it also works to hold elected officials accountable for the favors they deliver for their wealthy backers.

The Senate Judiciary Committee today began what is expected to be a week of hearings on Sotomayor's nomination to replace Justice David Souter on the high court. Sotomayor, a federal judge first appointed by President George H.W. Bush, would be the nation's first Latina justice.

Today's hearing began with all 19 members of Judiciary making statements before Sotomayor herself offered her opening remarks. The session had brief periods of drama, as anti-abortion protesters interrupted the proceedings.

The GOP has largely opposed Sotomayor's nomination by President Obama, with top Senate Republican Mitch McConnell of Kentucky particularly drawing the ire of the campaign-finance group.

Sen. McConnell and his big money allies are aghast at the nomination of a pro-campaign reform nominee," says David Donnelly, national campaigns director of Public Campaign Action Fund. "McConnell thrives in a pay-to-play system and is unabashed in his willingness to cloak a defense of the status quo in the principles of the First Amendment. But all he is doing is fighting for a political system in which the needs of big donors from Wall Street, the insurance industry, and polluters are placed in front of the public interest. That's not free speech, it's political greed."

Despite such GOP opposition, today a senior Republican on the Judiciary panel, conservative Sen. Lindsay Graham of South Carolina, told Sotomayor that she will likely be confirmed unless she has "a complete meltdown" during her confirmation hearings. Democrats maintain an overwhelming 60 votes in the full chamber, and the Judiciary panel itself has 12 Democrats to just seven Republicans.

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Senate Bill Would Put The 'Gas' On Alternative-Fuel Cars, Other Vehicles

2009-07-13T06:10:00.002-04:00

Senate Majority Leader Harry Reid and several other senators have introduced legislation to advance vehicles powered by natural gas, so as to reduce emissions and dependence on foreign oil.

The NAT GAS Act is sponsored by Sen. Robert Menendez (D-N.J.), with Reid and Sen. Orrin Hatch (R-Utah) as original co-sponsors. The bill also has the support of oilman-turned-alternative-energy-promoter T. Boone Pickens.

“Each day, our nation consumes about 21 million barrels of oil- more than 25 percent of the world’s oil supply,” Reid says. “Nearly 70 percent is imported from outside our borders. With only 3 percent of the world’s oil reserves, we cannot produce our way to a safe and secure energy future. I’m proud to join with Senators Menendez and Hatch in introducing legislation that will help encourage the development of natural gas vehicles to help save consumers and operators thousands of dollars per year, protect our environment, and decrease our dependence on foreign energy. We must get serious about using cleaner burning natural gas and renewable energy, and this legislation is a strong step in the right direction.”

Cars running on natural gas cut overall toxic emissions by 93 to 95 percent, according to an estimate from the Environmental Protection Agency cited by NAT Gas Act supporters. Natural gas is an abundant resource, with 98 percent of natural gas used in the United States originating in North America, supporters add. There are nearly 10 million natural gas vehicles in the world, supporters say, adding that natural gas has the ability to displace 100 percent of the petroleum used in heavy-duty vehicles.

Many cities and other local governments across the country have invested in local buses and other vehicles powered by compressed natural gas.

Says Menendez: “We saw last summer how the wild fluctuations in oil prices helped to wreck our economy and we’ve seen how pollutants from dirty fuels are wrecking our planet. Our economic crisis has shined a spotlight on the urgent need for alternative, cleaner and cheaper sources of energy that we don’t have to import. By making it easier and cheaper to own a vehicle that runs on natural gas, we can help families save money on energy, create new manufacturing jobs and clean our air.”

The bill would extend for 10 years the alternative fuel credits for natural gas used as a vehicle fuel, the purchase of natural gas-fueled vehicle, and the installation of natural gas vehicle refueling property credit, according to a fact sheet on the NAT Gas Act. It would also expand and modify the alternative fueled vehicle and refueling property tax credits, including making all dedicated natural gas-fueled vehicles eligible for a credit equal to 80 percent of the vehicle’s incremental cost. Only some dedicated natural gas vehicles currently can qualify for an 80 percent federal tax credit.

"Natural gas is an important alternative fuel to help pave the way to energy independence, which will not only help keep us safer, but will also help reduce the high cost of fuel and, thus, high utility bills across the board,” Hatch says. “In our current economic downturn, it’s crucial to provide appropriate incentives that lead to lower prices for all Americans. This piece of legislation does just that while also helping clean up our environment; I am a proud cosponsor.”

Among other provisions, the bill also would require that when complying with mandatory federal fleet alternative fuel vehicle purchase requirements, federal agencies shall purchase dedicated alternative fuel vehicles unless the agency can show that alternative fuel is unavailable or that purchasing such vehicles would be impractical, as well as provide grants for light- and heavy-duty natural gas engine development.

“I am proud to stand with Senator Menendez and co-sponsors Majority Leader Reid and Senator Hatch in support of this important natural gas legislation," says Pickens, who last year gained attention for heavily promoting an alternative-energy strategy known as the "Pickens Plan." "This bipartisan legislation does more to reduce our foreign oil dependency crisis than any other piece of legislation in the past 40 years. As I have said many times before and will continue to say, natural gas is cleaner, cheaper, it’s abundant and it’s American.

"This bill will accelerate the use of natural gas in vehicles and is the only way I know to quickly and effectively reduce our dependence on foreign oil," Pickens adds. "For too long, our dependence on foreign oil has been one of the factors influencing our foreign policy and if we can eliminate that issue by using our own domestic natural gas resources I am confident that it will benefit our national security, our economy and the environment.”

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Will Obama Clean Up Government Secrecy Labeling?

2009-07-10T17:21:00.003-04:00

By Jennifer LaFleur, ProPublica

Not available national technical information service. High-temperature superconductivity pilot center information. Business confidential. Census confidential.

These are among the more than 100 special designations federal agencies apply to information that is not officially classified but in their view requires special handling.

The special markings on government records often mean that agencies withhold unclassified information from the public, Congress and even other government agencies, according to a report (PDF) released this week by OMB Watch, a group that promotes transparency in government.

"Only by sharing information can we make greater use of the information," said Sean Moulton, director of federal information policy for OMB Watch. "If one person knows it, and it's locked in a file cabinet, it's useless, even to the government."

The OMB report follows a recent executive order from President Barack Obama aimed at bringing order to what critics say has become a confusing and inefficient system for deciding what government records truly need protection.

These special designations are not new. Government agencies have employed them for decades. But after Sept. 11, 2001, new categories were created and existing categories were applied more broadly, Moulton said.

In 2003, for example, the Federal Energy Regulatory Commission created a new category called Critical Energy Infrastructure Information. That halted the release of information about dam safety and other potential risks in communities.

Shortly after it formed, the Department of Homeland Security wrote rules on "critical infrastructure information" that protected information submitted by companies to the federal government.

And in a March 2006 report, the Government Accountability Office found 57 categories for "sensitive but unclassified" terrorism-related information, 16 of which belonged to one agency.
Most of the 26 agencies interviewed by the GAO reported no internal system for training staff in using special records designations or how to handle records that had special labels.

But now, under an administration that says it is committed to transparency, open-government advocates say the proliferation of special markings needs to be addressed.

In its report this week, OMB Watch points out that many of the designations are applied inconsistently within and across agencies. And the lack of specific definitions for categories leads to decisions about disclosure being made by individual workers.

Some moves already have been made toward fixing the jumble of agency markings.
In May 2008, President George W. Bush issued a memorandum to federal agencies to standardize markings for information considered "sensitive but unclassified." It created a new framework, called Controlled Unclassified Information (CUI), to protect terrorism-related information but allow agencies to share information.

The memo did not address many other special designations agencies use.
Obama's executive order on May 27 called for a new task force to review special designations: "These imperatives include protecting legitimate security, law enforcement, and privacy issues as well as civil liberties ... ensuring that the handling and dissemination of information is not restricted unless there is a compelling need."

The recommendations of the task force, which Obama said should include "a broad range of agencies from both inside and outside the information sharing environment," are due back to the administration in late August.

In its report, OMB Watch recommends that a new policy reduce the number of labels used to control information and reduce the amount of information being categorized. It also encourages the administration to keep public disclosure in mind when it develops processes for handing CUI and calls for protecting whistleblowers who "disclose CUI records to uncover waste, fraud, and abuse."

Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, said he worries that a comprehensive revamp of the system might restrict more information. Aftergood favors a more limited approach.

"Let's take it a step at a time and see what happens," he said.

ProPublica is an independent, non-profit newsroom that produces investigative journalism in the public interest.

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Capitol Idea: When Obama Gets Home

2009-07-10T07:45:00.004-04:00

By Scott Nance

Barack Obama may be tired when he arrives back in Washington after all of his intercontinental overseas travels, but he won't have time to rest.

The president will have to nearly immediately take on the growing restlessness around the nation about the state of the U.S. economy. Obama was elected -- and, at least until now, sustained high popularity -- because he seemed on top of what needs doing to correct this long economic decline. He has to come home and show that he still is, firmly so.

Obama must come home to disabuse the American people of a creeping sense that his economic policies aren't working, and more importantly, that control over the situation is sliding from his grasp. Should that notion take hold, his presidency will be effectively over, and Democrats can expect to be swamped in the next election.

Unemployment has already well surpassed the 8 percent ceiling Obama projected his policies would create. Add to that, budding chatter for the need of a second stimulus and Vice President Biden's televised remark that the administration "misread" the economy is creating a nascent-but-mounting sense that the president and vice president aren't fully in command of the situation.

One need look no further than Obama's recent and unmistakable descent in the daily Gallup tracking poll to understand that.

Yes, Obama corrected Biden long-distance from Russia, but that was just a stopgap measure at best. So was Biden's own campaign-style stop in Ohio this week. Rallies worked during the campaign, but not anymore. Obama and Biden are no longer candidates; they are the incumbents in the White House, and Americans are no longer seeking inspiration alone.

Very quickly upon his return to Washington, Obama will have to fully take stock of where his stimulus and other economic remedies stand in terms of their timing and effectiveness. He will then have to swiftly pivot and hold another one of his largely successful primetime televised press conferences, and be, as he has often promised, be extremely honest with the American people.

Taking questions from the press will demonstrate that he and his policies continue to stand up to questioning and scrutiny. Obama must level with the American people, and not only ask for their patience. He also must offer us a full status report of the stimulus and other economic programs, giving a full accounting of what's working and taking responsibility for what isn't. If a second stimulus is required, Obama must be forthcoming on that and why it is so. If some other policy also is called for, Obama must describe that rationale, too.

If he can do that, with timetables and deliverables, people will once again rapidly regain confidence in his leadership.

That Obama has held such lofty poll numbers for so long, and under such dire circumstances, indicates that most Americans want him to succeed. They merely want to see him on top of the situation -- just like he was when he was elected.

It's said that Obama spends much effort to learn from what went right, and what went wrong, with the presidency of the last Democrat in the White House. Obama would do well to remember that, like Bill Clinton, when in painful times, Americans want their leader to focus on the economy "like a laser beam."

The publisher of On The Hill and its sister sites, Life, The Universe ... and Politics Live, Scott Nance has covered government and Washington for more than a decade. Capitol Idea is his regular column from Washington.

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Gov’t Foreclosure Program: Who Are The Holdouts?

2009-07-10T07:13:00.001-04:00

By Emily Witt, ProPublica

Most of the biggest mortgage servicers in the country have signed up for the government’s foreclosure program, helping it cover what the Treasury Department says is more than 80 percent of home loans. The program pays participating servicers to modify loans.

We were curious as to why some of the top servicers were holding out, so we asked them. Some said they were considering joining. Others would not comment.

Among those not participating are three of the 10 largest servicers in the country and the second-biggest servicer of subprime loans, according to National Mortgage News.

Those servicers are under no obligation to offer modifications for loans not owned or guaranteed by Fannie Mae or Freddie Mac. They also are not bound by the mortgage debt-to-income ratio prescribed by Making Home Affordable, which limits monthly mortgage payments to no more than 31 percent of a homeowner’s income. The Treasury has said that more than 270,000 loan modifications have been offered so far, but servicers have been slow to ramp up.

Mortgage servicers contacted by ProPublica were reluctant to address their reasons for not signing on.

SunTrust Mortgage Inc., with more than $150 billion in loans, is the holdout with the largest servicing volume. Hugh Suhr, a spokesman, said the company was still considering whether to join the modification program.

HSBC, one of the top five servicers of subprime loans, told us it was “considering the related financial, operational and customer impacts” of Making Home Affordable for customers with bank-owned loans.

A spokeswoman for American Home Mortgage Servicing Inc., which according to National Mortgage News is the second-largest servicer of subprime loans, with a subprime portfolio topping $100 billion, said it anticipates finalizing an agreement with the government “soon.”

“Soon” was also the word used by a spokeswoman for Litton Loan Servicing, who said that’s when the company hopes “it can formalize its participation in the Treasury program.”
Three servicers—HomEq, PHH and Flagstar Mortgage – would not comment.

Meanwhile, homeowner advocates are getting impatient. “At some point President Obama has to stop begging, pleading and bribing the servicers and require them to do it,” said Bruce Marks, CEO of the Neighborhood Assistance Corporation of America, a nonprofit advocacy organization that helps homeowners refinance.

ACORN Housing, a nonprofit organization that offers HUD-certified counseling assistance, recently organized a campaign against four non-participants it lambasted as “The Home Wrecker 4.” One of its targets, OneWest (formerly IndyMac), announced last week that it intended to formalize an agreement with Making Home Affordable.

ProPublica is an independent, non-profit newsroom that produces investigative journalism in the public interest.

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GAO Slams Flimsy Auditing Rules for Stimulus Dollars

2009-07-09T22:38:00.004-04:00

By Christopher Flavelle, ProPublica

July 8: This post has been corrected.

Fresh on the heels of last week’s dreadful unemployment numbers, which raised new questions about whether the stimulus package is working, the Government Accountability Office this morning released a series of reports (PDF) about how effectively states and municipalities are using the stimulus money. One issue the GAO sounds the alarm on: weak auditing rules.

In notably blunt language, the GAO states that the federal audit reporting deadline, which instructs agencies to begin audits of their stimulus spending no more than nine months after the end of the fiscal year, “is too late to provide audit results in time for the audited entity to take action on deficiencies noted in Recovery Act programs. Moreover, current guidance does not achieve the level of accountability needed to effectively respond to Recovery Act risks.”

Translation: In the GAO’s opinion, the system for making sure that stimulus dollars are spent properly simply isn’t up to snuff. The report goes on to note that state auditors — whose job is to make sure that public dollars are appropriately spent — don’t have the funding to exercise their own responsibilities under the stimulus bill, something that ProPublica wrote about back in May. (We’ve called the GAO for more details on its concerns, and we’ll update the piece as soon as it responds.)

The GAO reported that “significant questions have been raised about the reliability of the data on www.USAspending.gov,” which is mandated by law to track financial information about who gets federal funds. The GAO points out that because the numbers on the site come from those receiving funds, the quality of their data can’t easily be verified. (Of course, as ProPublica has reported before, verifying numbers associated with the stimulus package is never easy.)

This report is a red flag for the Office of Management and Budget, which has responsibility for fixing that process. The GAO notes that it warned the OMB in April that the state-level audit process for stimulus money wasn’t good enough. (ProPublica highlighted the report.)

While the OMB took steps to respond to the criticisms, the GAO notes, “These actions do not sufficiently address the risks.”

The OMB responded to today’s reports from the GAO by noting that it has “already taken and is planning actions” to address the shortcomings with its auditing process. For example, according to the report, the OMB said that it plans to issue additional stimulus auditing guidelines later this month. The GAO retorted that the OMB has “not yet completed critical guidance in these areas.”

Correction: An earlier version of this post inaccurately stated that the deadline for states to begin audits of their stimulus spending is at least six months after the end of the fiscal year. In fact, the deadline is nine months after the end of the fiscal year.

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Google Operating System Should Push Lawmaker Alarm Bells, Advocacy Group Says

2009-07-09T07:06:00.003-04:00

Google's announcement this week that it was launching its own computer operating system should only further pique lawmakers' concern over the Internet giant's privacy policies -- even as the company works Capitol Hill to tamp down concern, according to the advocacy group known as Consumer Watchdog.

Google is apparently trying to persuade Capitol Hill policymakers that its so-called behavioral advertising -- which targets users based on their browsing -- is benign, says Consumer Watchdog. The nonpartisan, nonprofit advocacy group says it obtained a "confidential" and "proprietary" Google presentation for lawmakers that touts Google's commitment to "transparency," but skirts tough questions about its secretive user data tracking, storage and sharing policies.

Google increasingly spies on what consumers do online, including what web sites they visit; creates dossiers on users' online behavior without their prior permission; then harvests this private information to sell hundreds of millions of dollars in advertising, Consumer Watchdog says.

Members of Congress began drilling down into the data-collection practices of Google and other big Internet companies last year.

Consumer Watchdog posted the Google presentation along with an annotated version that it says calls out Google's deceptions. The group urged lawmakers and the Justice Department to view both versions and consider strict limits on how Google collects and uses its customers' online behavior.

The group, which has questioned Google privacy policies before, says the privacy question has grown more urgent with Google's announcement Wednesday that it will release a new operating system that moves currently computer-based functions to its proprietary Internet "cloud," says Consumer Watchdog. Congress is considering forcing Google to adopt an opt-in model where users must actively allow Google to collect or share browsing history and user data.

Google's new operating system could also comb users' stored documents for information on what the company calls "interest categories," Consumer Watchdog says. The depth of this potential data collection is not mentioned in the Google document, says Consumer Watchdog.

"The Justice Department should be worried when Google tries to obfuscate its data tracking capacity and reach rather than disclose all of it," says Judy Dugan, research director of Consumer Watchdog. "Congress should demand that Google stop tracking Americans' online behavior without their prior permission. Whatever Google does will quickly become the industry standard."

The annotated version of the presentation notes that Google's strangely labeled path to opting out of this invasive advertising is hidden beneath "layers of privacy policies," that it takes seven clicks to install a permanent opt-out, and that watching all 38 of Google's videos explaining its dense privacy policies takes 3.8 hours, nearly as long as Gone With the Wind, the watchdog group says.

Consumer Watchdog says the Google presentation appears to be associated with a June 18 congressional hearing that questioned online "behavioral advertising." Consumer Watchdog previously asked the Justice Department to investigate Google's privacy policies.

"Google should stop dodging, ducking and weaving when it comes to squaring its do-no-evil pledge with its cyber-spying and 'confidential' memos," says Dugan. "The company could eliminate all privacy doubts with a simple page-one button allowing users to affirmatively allow the company to track their personal online habits. Google's refusal to do so appears to confirm that evading user privacy is essential to its business model."

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Progressive Legal Analyst Foresees Racially Tinged Criticism Of Nominee Sotomayor

2009-07-09T06:12:00.006-04:00

President Obama's Supreme Court nominee is likely to encounter racially based criticism from a top Republican when she sits for her Senate confirmation hearing next week, according to a legal research analyst at a progressive Washington think tank.

The Senate Judiciary Committee is preparing for the confirmation hearing for the nomination of Judge Sonia Sotomayor to be an associate justice on the U.S. Supreme Court. Hearings are scheduled to begin Monday.

Obama last month nominated Sotomayor to replace Justice David Souter, who stepped down last month after nearly two decades on the high court. Sotomayor would be the third woman, and first Latina, member of the court.

A majority of senators must approve her nomination to serve the lifetime appointment to the Supreme Court. Sotomayor is expected to be easily confirmed given the Democrats' heavy advantage in the Senate, yet Republicans have strenuously opposed her nomination.

"I think we're seeing two lines of attacks," says Ian Millhiser, analyst at the Center for American Progress. "The first is simply conservatives attacking her for following precedents they don't like. That's what happened in this Ricci case where there's a long line of Second Circuit precedent saying that employers have broad discretion to throw out promotion tests. She followed that because she had to. She has no choice as a lower court judge but to follow precedent. She shouldn't be attacked for that.

"The most bizarre line of precedent were seeing is Jeff Sessions--Senator Sessions--who has a long history of racially questionable remarks, including a pass where he called the NAACP an un-American and Communist-inspired organization, is now attacking her because she was once on the board of a civil rights organization," Millhiser adds. "So I think that Senator Sessions needs to look really close at himself and get out of the past with that attack."

A conservative Republican senator from Alabama, Sessions became the top GOP figure on the Sotomayor nomination once he was named ranking Republican on Judiciary. Sessions took the top GOP on Judiciary this year once Sen. Arlen Specter of Pennsylvania switched parties to become a Democrat.

The Ricci case Millhiser mentions was decided by the Supreme Court last month, which found white firefighters in New Haven, Conn., led by Frank Ricci, successfully argued they were unfairly denied promotions due to race. Sotomayor had been part of a unanimous federal court of appeals panel that upheld a lower-court ruling upholding New Haven's decision against the firefighters.

Indeed, Millhiser says Sotomayor's record as a judge "shows an absolute loyalty to the law and precedent," which also is how the non-partisan Congressional Research Service characterized Sotomayor's performance on the bench.

"And you see this especially in the cases where she disagrees with her colleagues. She had a voting rights case where a majority of her court created a new exception to the Voting Rights Act, and she wrote a great dissent saying, no, the law actually means what it says," Millhiser says, speaking in a new web video. "She also disagreed with the Supreme Court recently on an environmental case where they completely rewrote environmental law to give a giveaway to power plant operators. So I think that she shows a much more consistent loyalty to the law than many of the conservatives she's going to join on the Supreme Court, and I think we should welcome that."

Rather than a hindrance, Millhiser says he sees Sotomayor bringing needed diversity to the high court that has been lacking.

"There was a case this term called Redding in which a 13 year-old girl was strip searched by her vice principal because the school suspected her of having Ibuprofen--that's the same drug that's in Advil. When that case came up to the Supreme Court, it was very clear that a number of the male justices were ready to rule against her and say that this strip search was fine," Millhiser says. "Justice [Ruth Bader] Ginsberg worked very hard to change their mind, and fortunately she was successful.

"But she was successful because she had once been a 13 year-old girl herself. So she understood how invasive that search was, and how it can not be tolerated in this country," he adds. "Judge Sotomayor is only going to be the second woman and the second person of color on this Supreme Court, and we need that perspective, because we need the highest court in the land to understand what it's like to be any kind of American."

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Energy Industry Sways Congress With Misleading Data

2009-07-08T13:40:00.004-04:00

By Abrahm Lustgarten, ProPublica

The two key arguments that the oil and gas industry is using to fight federal regulation of the natural gas drilling process called hydraulic fracturing -- that the costs would cripple their business and that state regulations are already strong -- are challenged by the same data and reports the industry is using to bolster its position.

One widely-referenced study (PDF) estimated that complying with regulations would cost the oil and gas industry more than $100,000 per gas well. But the figures are based on 10-year-old estimates and list expensive procedures that aren't mentioned in the proposed regulations.

Another report (PDF) concluded that state regulations for drilling, including fracturing, "are adequately designed to directly protect water." But the report reveals that only four states require regulatory approval before hydraulic fracturing begins. It also outlines how requirements for encasing wells in cement -- a practice the author has said is critical to containing hydraulic fracturing fluids and protecting water -- varies from state to state.

One recommendation in that report flies in face of industry's assertion that its processes are safe: hydraulic fracturing needs more study and should be banned in certain cases near sensitive water supplies.

Hydraulic fracturing -- where water and sand laced with chemicals is injected underground to break up rock -- is considered essential to harvesting deeply buried gas reserves that some predict could meet U.S. demand for 116 years.

In 2005 hydraulic fracturing was exempted from the Safe Drinking Water Act, based on assurances that the process was safe. But a series of ProPublica reports has identified a number of cases in which water has been contaminated in drilling areas across the country, and EPA scientists say they can’t fully investigate them because of the exemption.

Now, Congress is considering legislation to restore the Environmental Protection Agency's oversight of the process. And industry -- leveraging its money and political connections -- is using the recent reports to fight back.

Since January at least five studies have been published making the case that state laws (PDF) are adequate and that new regulations could hamper exploration (PDF), raise fuel prices and eliminate jobs. Three of the studies were paid for by the Department of Energy and produced by consulting firms that also work with the industry. One of the DOE reports [2] (PDF) was written by the same person who authored a study for the Independent Petroleum Association of America (PDF).

The industry argues (PDF) that federal oversight would amount to a redundant layer of bureaucracy that is not needed because states already require the same environmental safeguards that might be required by the EPA, and that those safeguards are effective.

"We don't think the system is broke, so we question the value of trying to fix it with a federal solution," Richard Ranger, a senior policy analyst at the American Petroleum Institute, told ProPublica in May. "So proceed with caution if you are going to proceed with regulating this business because it could make a very significant difference in delivering a fuel that is fundamental to economic health."

Industry reports say that if federal regulations are applied to hydraulic fracturing, more than a third of onshore gas wells would be closed and oil and gas companies would spend $10 billion complying with the law in its first year. The federal government would lose some $1.2 billion in revenue.

But advocates for the federal legislation say the industry is misleading the public into a false choice between the economy and the environment.

"We are all for using science-based information," said Amy Mall, a senior policy analyst for the Natural Resources Defense Council. "But the underlying information doesn’t really tell the story they claim it does."

Nonetheless, the arguments have gained traction in Congress and have eroded support for new regulation.

Rep. Dan Boren, D-Okla., told his fellow members in a recent hearing that "these folks are laying people off -- people are hurting in my district." Rep. John Salazar, D-Colo., who sponsored legislation to regulate fracturing in 2008, but declined to add his name to this year's bill, told ProPublica that "developers may have legitimate concerns about the impact that removing the exemption may have on their ability to find and extract oil and gas."

To keep the legislation alive, Diana DeGette, D-Colo., its main sponsor, has shifted gears to seek environmental studies and hearings rather than a quick passage into law.

"The opposition has been throwing out scare tactics and mischaracterizations of what she is trying to do," said DeGette's spokesman, Kristofer Eisenla. "Unfortunately the oil and gas guys came out of the barn storming."

Fuzzy Numbers

The study that has received the most publicity (PDF) is also among the most misleading.
The report, which evaluates the costs of regulations for the oil and gas industry, was written for the Department of Energy by a consulting company also used by the energy industry, Advanced Resources International, or ARI. It contains a table (PDF) listing seven specific processes it says would be mandated under the proposed federal regulations, and what those processes would cost -- a total of $100,505 per well. Among the listed items is "state of the art" fracture imaging, at a per-well average cost of $37,500, and three-dimensional fracture simulation, at a cost of $7,500.

But a footnote reveals that these figures are based on memo sent to a DOE official by another consulting firm in 1999. The report’s author said they haven’t been updated to reflect technological advances or substantial shifts in the drilling business over the last decade.
Furthermore, none of the tests listed in the table are mentioned in the text of Safe Drinking Water Act, the federal law that would apply to hydraulic fracturing, according to an EPA spokesperson in Washington. And they aren’t mentioned in the bill being floated in Congress either.

"It's a sense of magnitude of the impacts, not a sense of absolute accuracy," said Michael Godec, Vice President of ARI and author of the report. The regulatory requirements were interpolated on a "bad-case" scenario, he explained, because the federal laws are not specific. "We took some liberties. You have to make some assumptions about what might be required."

Godec believes that many of the processes listed in the report are already being practiced to a greater degree than they were in 1999, meaning that even if they were required they may not be additional burdens at all. But he said that anecdotal conversations with drilling companies confirm that the report’s conclusions are still “about right.”

Godec said he did not obtain recent cost figures from drilling companies, which are closely guarded. Halliburton -- one of the largest hydraulic fracturing service providers -- did not return calls from ProPublica for comment about the expense of the procedures listed.

Asked whether the age of the data was a concern, Godec said it had been discussed with Nancy Johnson, the DOE official who commissioned the report. He said he was instructed that the report was needed quickly, that the budget was limited and that he should move forward because "this is a hot topic and people are testifying."

Nancy Johnson did not return calls for comment and the Department of Energy's office of fossil energy did not make its officials available for an interview after repeated requests. It said, through a spokesperson, that the Department did not author the report.

Godec also produced a similar report on costs and state gas regulations for the Independent Petroleum Association of America that was published in late April. Titled "Bringing Real Information on Energy Forward," (PDF) that report also makes the case that state regulations of drilling practices are effective. Godec says his company’s work is impartial and his conclusions would have been the same whether he was contracted by the oil and gas industry, or the federal government.

Even if the costs Godec laid out in the DOE report were up-to-date and accurate, it’s doubtful they would have the devastating financial impact the industry claims.

The estimated expense of regulating hydraulic fracturing amounts to between one and three percent of the total cost of drilling a new well when factored into operating costs estimated by financial analysts at Deutsche Bank. If all the testing that Godec includes is factored out, the regulations would cost the industry just $4,500 per well, according to his report, or just six hundredths of a percent of the cost of establishing a typical new well.

“I think at the end of the day it’s unlikely to have a real huge impact,” says John Freeman, a senior vice president for energy equity research at the investment bank Raymond James. “It’s a lot of fuzzy stuff that I can’t get my hands around. This just seems to be more of a soft number that I frankly have more of a hard time connecting the dots on.”

State Regulations Leave Gaps

In May the Ground Water Protection Council, a group made up mostly of industry representatives and state oil and gas regulators, released the first comprehensive review (PDF) of oil and gas regulations across 27 of 31 drilling states it surveyed. The report, paid for by the DOE, concluded that most states have requirements to encase wells in cement and protect groundwater, and that a majority also require they be notified after hydraulic fracturing takes place.

"The study confirms what the industry has been saying (PDF): that regulation of oil and gas field activities, including hydraulic fracturing, is best accomplished at the state level," the American Petroleum Institute said a press release about the study.

But the GWPC report -- which focuses on what regulations are in place, rather than what may be missing -- raises important points that are downplayed in its summary. It reveals that regulatory oversight is inconsistent from state to state and has substantial gaps. It also says hydraulic fracturing requires "comprehensive" further study "to determine the relative risk" and to determine best practices.

In fact, the report calls for some of same measures found in the congressional bill the industry is so hotly contesting.

Regarding fracturing in areas close to the surface or near shallow aquifers, the report reads: "States should consider requiring companies to submit a list of additives used in formation fracturing and their concentration." It also says that shallow fracturing very close to certain drinking water aquifers "should either be stopped, or restricted to the use of materials that do not pose a risk of endangering ground water and do not have the potential to cause human health effects."

A close examination of the appendices (PDF) attached to the research also showed that 21 of the 31 states listed do not have any specific regulation addressing hydraulic fracturing; 17 states do not require companies to list the chemicals they put in the ground; and no state requires companies to track how much drilling fluid they pump into or remove from the earth -- crucial data for determining what portion of chemicals has been discarded underground.

"The tone is that in general states do an adequate job of protecting water," said Michael Nickolaus, the report's author, special projects director for the GWPC and former director of Indiana's state Oil and Gas Division. "There are certain gaps in certain states ... it’s not a hundred percent world."

The GWPC report does not name the states that lack more stringent regulations, a detail that is important because one or two states can account for a large proportion of the drilling in the United States. To extract that information from the report would require analyzing all the state regulations included in the appendices (PDF) and repeating much of the GWPC's original research. Nickolaus also declined to name the states in an interview with ProPublica, saying that the GWPC was obliged to protect its members.

Nickolaus says well construction -- especially the cementing process that keeps drilling fluids and gas from seeping into groundwater -- is more important than the fracturing issue. But according to the report, state regulations about cementing are sometimes vague and often don't specify standards that makes the protection fool-proof.

While most states have regulations that protect drinking water near the surface, a third don’t require that the cement casing extends far enough to completely isolate wells from geologic layers and the deepest aquifers, according to the report. Twenty-two percent don't require the cement to harden before the well is used for fracturing, and don’t test cement quality and consistency -- one of the surest ways to protect against contamination.

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Looking Ahead to Round 2

2009-07-07T19:12:00.002-04:00

By Amanda Michel, ProPublica

Today’s stimulus coverage roundup:

While at a conference in Singapore, a White House economic adviser said the United States could use a second stimulus, Reuters reports. The adviser also said the current stimulus is “performing close to expectations but not in timing.” Just who is this adviser? She’s Laura D’Andrea Tyson—the former chairwoman of the president’s Council of Economic Advisers during the Clinton administration, and the former director of the National Economic Council. Tyson told the audience that “we should be planning on a contingency basis for a second round of stimulus,” implying that a second stimulus may be on the back burner rather than off the table for this administration.

Tyson’s admission is timely. Rising budget deficits and unemployment have rekindled an already contentious debate over the stimulus. What is an administration to do? In today’s lead Wall Street Journal op-ed, Gerald F. Seib descibes the administration as “boxed in, politically and rhetorically. If the White House is going to argue that the main problem with the existing stimulus plan is that it hasn’t had enough time to kick in, it’s hard to simultaneously argue that a second stimulus is needed.”

Florida is abuzz over a recent Palm Beach Post report showing that Floridians receive less stimulus money than any other state—just $505 per person. The Post blames spending formulas used to determine each state’s stimulus package: “Many of these formulas work against Florida. For example, Congress returns 87 cents for transportation projects in the state for every $1 in gax taxes Floridians send to Washington.” Should the stimulus be implemented more quickly? Mais, oui! France will spend more than 75 percent of its stimulus money this year, according to a New York Times article. The French stimulus minister told the paper that by the time Washington gets around to doling out most of its money “the crisis could be over. America is six months behind; it has wasted a lot of time.” Now, keep in mind that France is spending $37 billion, not $787 billion. Instead of filling in potholes it is using stimulus money for work on castles and historic buildings—renovations fit for a king.

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EPA Attorneys Criticize Obama Nominee

2009-07-07T06:07:00.004-04:00

By Joaquin Sapien, ProPublica

The Obama administration's nomination of Ignacia Moreno to head the environment division of the Department of Justice is moving quietly through the confirmation process, with hearings expected to begin in the next few weeks. Moreno has worked for the environment division before, during the Clinton administration. But her most recent job -- as environmental counsel for General Electric -- has raised eyebrows among Environmental Protection Agency attorneys. Before Moreno worked for GE, she spent five years defending other companies in pollution-related lawsuits.

Six EPA attorneys interviewed by ProPublica criticized the nomination, but asked that their names not be used in this story because they fear retribution. They said they doubt that anyone who has recently defended GE would be effective in the role.

For decades, the EPA has clashed with GE over the many toxic waste sites the company has been linked to through the Superfund program. For the past two years, Moreno has defended GE in some of these cases. Now, if her nomination is confirmed, she will be one of the government's top enforcement lawyers for the Superfund program and other environmental laws.

In 1994, President Bill Clinton appointed Moreno to be special assistant to Lois Schiffer, who then held the position that Moreno has been nominated for. In 1996, Moreno became principal counsel to Schiffer, who supports her nomination and told ProPublica that Moreno played an important role in dozens of environmental enforcement cases.

The EPA attorneys, however, argue that the job should not be filled by a lawyer who was comfortable defending the polluters that she would now have to prosecute.

In an e-mail to ProPublica, Moreno said she is not doing press interviews.

In a response to a questionnaire she recently filled out for the Senate Judiciary Committee (PDF), which will hold her nomination hearings, Moreno said she would recuse herself from any case involving GE for the first two years of her tenure. The questionnaire also provides details about what she considers to be her most significant legal activities. She mentioned some of the cases she worked on at the Justice Department, including her assistance in mitigating cross-border pollution between Mexico and the United States. Only one of the legal activities listed in that section actually involved prosecuting polluters.

The questionnaire also lists civil rights cases Moreno worked on, including one in which she represented Mexican immigrants who sued their employer for unfair labor practices, and another in which she represented African-American female employees in a discrimination case against the National Archives.

Several attorneys outside of the EPA who are familiar with Moreno's career say her work on behalf of polluters doesn't mean that she won't make a strong enforcement lawyer. In fact, some argued that it might make her a better prosecutor.

Michael Steinberg, an attorney for Morgan, Lewis & Bockius, represents alleged polluters in
Superfund cases and once worked for the Justice Department's environment division.

"I think if you ask people that I worked with then, they will tell you I was extremely effective in litigating against the industry," Steinberg said. "I expect nothing less from Ignacia. She's a professional, and that's what professionals do."

When Moreno's nomination was announced in mid-May, she was actively defending GE against charges brought by the very division of the Justice Department that she has been appointed to lead.

In court documents filed in that case, the EPA said that GE owes the federal government nearly $10 million for the government's cleanup of 800 barrels of toxic waste that GE improperly disposed of at a Superfund site in New Hampshire.

GE, with the help of Moreno (PDF), argued that it was not responsible for the Superfund site because it thought it had sold the waste to a company that was going to reuse it to make paint. GE said it didn't know that the waste was instead being dumped, according to court filings (PDF).

"Nothing is ever cut and dried with a GE site," said RuthAnn Sherman, an EPA enforcement attorney working on that case. "They aggressively pursue every possible avenue and appeal everything."

A federal judge ruled against GE, but the company is now challenging the costs of the cleanup, Sherman said. Moreno withdrew (PDF) from the case a week after her nomination was announced.

For the past nine years, GE has been locked in an even bigger court battle with the EPA and the Justice Department. GE argues that the part of the Superfund law that gives the EPA authority to force polluters to clean up their toxic waste is unconstitutional because it violates alleged polluters' right to due process. In legal filings, GE also argued that cleanup orders have an automatically negative impact on the company's brand name and financial status.

The company has been linked to 116 Superfund sites, according to a report by the Center for Public Integrity, an investigative journalism organization based in Washington, D.C. The only company in the report that was linked to more sites was Honeywell, with 128. Forbes magazine ranks GE as one of the largest companies in the world.

In a recent ruling in the case, a federal judge affirmed the constitutionality of the Superfund program. GE appealed (PDF) that ruling in March.

It's unclear how close Moreno was to the constitutionality case, or if she worked on it at all, because her name doesn't appear in any of the legal filings. Peter O’Toole, a GE spokesman, would not comment on Moreno's involvement in that case or on the status of any of GE's other ongoing cases.

"The absence of her name [from court filings] doesn't mean she did not work on the case," said Stephen Gillers, a legal ethics professor at New York University's law school. If she did work on it, Gillers said, strict conflict-of-interest rules for attorneys would prevent her from ever taking any position against her former client on the case, or on any other case that she was directly involved in.

Gillers added that if she was involved in the constitutionality case, it would not affect her ability to enforce Superfund law and she would have no obligation to recuse herself from Superfund cases pursued by the Justice Department. Superfund enforcement cases represent about a quarter of the caseload of the Justice Department's environmental enforcement section, according to an EPA attorney's analysis.

National environmental and public interest groups haven't taken a position for or against Moreno's nomination. But smaller groups, especially those specifically concerned about pollution attributed to General Electric, worry that her ties to industry make her the wrong pick for the job. Alex Matthiessen, president of Riverkeeper, a nonprofit that focuses on the health of the Hudson River in New York, is concerned about what Moreno's nomination will mean for the future of GE's 197-mile Superfund site that runs along the bottom of the river from Hudson Falls, N.Y., to Manhattan. More than 30 years ago, GE dumped over a million pounds of polychlorinated biphenyls into the river from two General Electric factories. PCBs are a probable human carcinogen, according to the Centers for Disease Control and Prevention.

Last month, General Electric began dredging up 1.8 million cubic yards of contaminated soil from the river after negotiating a two-phase cleanup plan with the EPA. In the first phase, the company agreed to clean up 265,000 cubic yards of the sediment, about 15 percent of the total. This phase is expected to end in October, at which point a panel of experts will review the progress of the cleanup and determine whether changes are necessary.

The Justice Department would not comment on this story or provide details about how it would handle cases that Moreno had to recuse herself from.

Before Moreno was hired by GE, she worked for Spriggs & Hollingsworth, a law firm that provided outside counsel to GE on its constitutionality case.

At Spriggs & Hollingsworth, Moreno was part of a team of lawyers that helped defend DynCorp against charges from an Ecuadorean community that claims the defense contractor sprayed residents with a dangerous herbicide used to control the growth of coca along the Colombian border.

Brian Leinbach, one of the lawyers representing the Ecuadoreans, also faced Moreno in court in 2004, when she defended General Motors in a Superfund-related lawsuit. Court filings in that case show that a group of Indiana residents living near a GM facility said their health and property suffered from pollution allegedly created by the company. The residents were represented in part by Leinbach's firm, Engstrom, Lipscomb & Lack.

"She has been one of the big players in defending large corporations against Superfund lawsuits," Leinbach said. "She is going to have to change her focus 180 degrees," he said, "but there is no reason to believe she is not capable of doing that."

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Riding the Stimulus to Sin City?

2009-07-06T06:39:00.002-04:00

By Michael Grabell and Amanda Michel, ProPublica

Today’s roundup of stimulus coverage:

Remember when Louisiana Gov. Bobby Jindal mocked the stimulus package by saying it included a levitation train from Las Vegas to Disneyland? The Democrats were quick to rebut Republican criticism. But it looks like Senate Majority Leader Harry Reid, D-Nev., might get a train line after all. The U.S. Department of Transportation announced late Thursday that Las Vegas is now included in the California high-speed rail corridor (PDF), making the Sin City train a strong contender for stimulus funding. After the stimulus passed, Republicans accused Reid of trying to steer money to his home state when, during final closed-door negotiations, funding for high-speed rail jumped from $2.25 billion to $8 billion. It still remains unclear if the Las Vegas train will benefit from stimulus funding. Reid dismissed the magnetic levitation concept Thursday and backed the privately funded DesertXpress project, whose officials say they have “no interest in tapping the stimulus money.” The deadline for initial applications for high-speed rail funding from the stimulus is Friday.

The Federal Highway Administration revoked $1 million in stimulus funding from a road project in Washington state after an investigation revealed that the county road engineer had owned property near the road and profited from selling the county right of way, The Daily World of Aberdeen, Wash., reports.

The Republicans have released a tongue-in-cheek video a bloodhound named Ellie Mae sniffing for stimulus jobs. In truth, it wouldn’t have been hard for the GOP to find people hired for stimulus projects. The Obama administration has issued a press release virtually every time someone has gotten a job.

Vice President Biden refueled the fiery debate over the stimulus when he acknowledged yesterday on ABC News’ “This Week” that the administration ‘misread’ the economy when preparing the American Recovery and Reinvestment Act. The vice president also said that “no one expected that that recovery package would in fact be in a position at this point of having distributed the bulk of the money.”

Since the Recovery Act became official, Secretary of Transportation Ray LaHood, a prominent Republican member in a largely Democratic Cabinet, became a sort of traveling stimulus salesman. CQ Politics points out that last week LaHood traveled to Denver, where he helped break ground on a road and bike path, then hit up Portland, Ore., Oakland, Calif., and Nevada. LaHood’s behavior is reportedly rankling his fellow Republicans.

Call a spade a spade. That’s an easy rule to apply, right? Chadwick Matlin over at The Big Money wades through the semantic challenges of reporting on the stimulus. According to Matlin, references to the “stimulus act” defy President Obama while references to the “Recovery Act” side with him.

Some, like conservative columnist Michelle Malkin, call them “tax-subsidized re-election billboards.” Others refer to them by their function—road signs advertising the American Recovery and Reinvestment Act that are placed near stimulus-funded construction. The signs, which the AP estimates cost roughly $500 to $1,200 to design, make and install, are becoming a bit of a punching bag for critics of the stimulus. The administration claims the signs “promote transparency” while others see them as frivolous political waste.

Texas squeaked by the deadline to submit applications for its piece of $48 billion in state fiscal stabilization funds last Wednesday with only 18 minutes to spare. Most of that money (81.8 percent) is earmarked for public schools, and the rest can be used flexibly to avoid cuts to public services like police and fire. Now some Texas officials are nervous, wondering whether their application will pass muster because it includes “a funding increase that requires teacher raises” reports the Fort Worth Star-Telegram. Additionally, some Texas legislators contend that some of the federal fiscal stabilization stimulus money is being used simply to supplant state funds. This is allowed, but Education Secretary Arne Duncan has warned states that they could jeopardize their chance at $5 billion in future stimulus money for education if they pull the state funding rug out from under schools.

The looming bankruptcy of the federal highway trust fund has been causing transportation officials to fret. The AP reports that the fund is “expected to go broke by August 21 due to declines in gas and truck sales tax revenue because of the recession.” If that happens, officials and contractors warn, it could erase progress made by the stimulus. The Patriot-News of Harrisburg, Pa., cites a large contractor that, despite hiring back laid-off employees and picking up 30 more after winning several stimulus contracts, won’t beef up operations significantly because there are too many “unknowns.”

ProPublica intern David Epstein contributed to this report.

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Republican Senators Accused Of Banning Abortions Through Healthcare Reform

2009-07-05T10:23:00.006-04:00

Republicans on the Senate Finance Committee are pushing for language in health care reform legislation that would eliminate coverage for abortion services, according to a coalition of religious groups that support abortion rights.

"If this happens, many women could lose coverage for abortion services that their private insurance currently includes. Plus, millions of uninsured women will still lack a basic health care service despite having been promised a better quality of life," says Rev. Carlton Veazey, president and CEO, Religious Coalition for Reproductive Choice.

The Senate Finance Committee is a key group of senators currently shaping a national healthcare reform package. The committee is led by Chairman Max Baucus (D-Mont.) and ranking Republican Charles Grassley of Iowa. Baucus and Grassley are top negotiators for their respective parties on how healthcare reform will eventually look.

"If these senators are allowed to deny coverage of abortion services, the burden will inevitably fall on low-income women and widen the huge gap in health status and access to health care services that reforms are meant to remedy," Veazey says. "Compared to their higher-income counterparts, low-income women are four times as likely to have an unintended pregnancy and five times as likely to have an unintended birth.

"As people of faith, we believe that health care reform should expand coverage to provide for the basic services that every human being deserves; it should not deny essential services to half of the population and aggravate the troubling disparities in health care affecting minorities and low-income individuals," Veazey adds. "For example, compared to her higher-income counterpart, a low-income woman is four times as likely to have an unintended pregnancy and five times as likely to have an unintended birth."

Veazey's organization, the Religious Coalition for Reproductive Choice, describes itself as a national interfaith coalition of religious and religiously affiliated organizations from 15 mainstream denominations and traditions.

Basic health care includes abortion services, the organization says. The coalition cites a study by the Guttmacher Institute that finds one in three American women will have an abortion by age 45.

"Reproductive health care, including abortion services, is an essential component of women's health. Women must get a fair shake in the final health care reform bill," Veazey says.

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Sec. Gates Plan May Be Beginning of The End of 'Don't Ask, Don't Tell' Gay Policy

2009-07-03T12:24:00.004-04:00

In the wake of this week's unexpected Pentagon announcement about gays in the military, experts say the "don't ask, don't tell" policy may be on the brink of irreversible change that would speed up its demise.

After speaking with President Obama last week, Defense Secretary Robert Gates has asked military lawyers to explore how to modify enforcement of the policy in ways that are "more flexible until the law is changed." Obama Monday reiterated his intention to end discrimination against gay troops, saying he is working with Congress and the military to do so.

Obama has come under heavy criticism from gay activists for failing to deal with the "Don't Ask, Don't Tell" policy for six months through his term in office after promising to end it as a candidate last year. The Don't Ask, Don't Tell policy bans openly gay troops from serving in the military. Hundreds of military personnel have continued to be discharged under the policy since Obama took office in January.

Christopher Neff, political director of the Palm Center, says the remarks by Secretary Gates marked the first time the Defense Secretary has made clear that the Pentagon is onboard with the president's determination to lift the ban. The Palm Center is a research institute at the University of California that deals in gay rights issues, including gays in the military.

"'Don't ask, don't tell' is a package -- both a law and a policy -- that hasn't been penetrated for fifteen years," Neff says. "This is a crack in humpty dumpty, and it gets the ball rolling for a political solution since it gives cover to lawmakers who have been waiting for a nod from the Pentagon."

Neff says that even a small change in how "don't ask, don't tell" is enforced could represent a seismic political shift, even if it does not have a substantial operational impact on most gay troops, who would still be subject to discharge. If the military stops applying certain provisions of the policy, as Gates says it is considering, it would send a signal to Congress about the inevitability of change.

"That's why executive action is the key to unlocking the political stalemate," says Neff. "Even the statements themselves, although they do await follow-up action, have changed the political landscape."

Last month, the Palm Center published a report which outlined several legal and political rationales for executive branch discretion in regulating, and even halting, discharges provided for by federal statute. One of those rationales is closely linked to the new review announced by Secretary Gates.

According to the Palm Center study, "the 'don't ask, don't tell' policy itself, as codified by Congress, also grants authority to the Department of Defense to determine the procedures under which investigations, separation proceedings, and other personnel actions under the authority of 10 U.S.C. Section 654 will be carried out ... The Secretary of Defense has discretion to determine the specific manner in which 'don't ask, don't tell' will be implemented." Prior to the release of the Palm Center's report, most observers had assumed that only Congress or the federal courts end the firings of gay troops.

Amidst mounting public pressure, White House press secretary Robert Gibbs said this week that he thought "don't ask, don't tell" would be repealed by the end of the president's first term.

Nathaniel Frank, senior research fellow at the Palm Center, says this week's developments were politically significant. "Serious discussions have been launched by the President himself," says Frank. "Obama has said this is a failed policy that harms national security, so these measures are not just fixes, but may be the beginning of the end."

Frank added that any regulatory changes that fall short of halting all discharges will be "window-dressing," but he focused on the implications for further political change. "This means the hot potato party may finally be over, as the president understands where the buck stops."

In the wake of this week's developments, the Palm Center announced that it is preparing a more extensive legal analysis of administrative options for relaxing the application of certain provisions of "don't ask, don't tell." Neff says that the Defense Department should invite public input as the rules are re-drafted, which would be consistent with past processes when military regulations have been changed. "This review should be no different," he says.

Organizations and individuals who have endorsed or endorsed consideration of the use of executive action based on the legal theories outlined in the Palm Center's study include Secretary Gates, 77 members of Congress, the New York Times editorial page, Center for American Progress, Human Rights Campaign, Servicemembers Legal Defense Network, Hendrik Hertzberg of the New Yorker, the political consultant Robert Shrum, and former White House aide Richard Socarides, according to the Palm Center.

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Obama Seems to Rule Out Executive Order on Indefinite Detentions

2009-07-02T19:42:00.001-04:00

by Dafna Linzer, ProPublica

President Obama appeared to rule out issuing an executive order to establish indefinite detention Thursday, nearly a week after White House officials first acknowledged that it was an option.

In an interview with The Associated Press, Obama said that if he goes ahead with indefinite detentions for terrorism suspects that he would ask Congress to approve it by law.

"It is very important that the American people and Congress, in conjunction with my administration, come up with a structure that is not only legitimate in the eyes of our constitutional traditions, but also in the eyes of the international community," he said, according to the AP.

Last Friday, ProPublica and the Washington Post wrote that the White House, facing difficulties in Congress over the closure of the prison facility at Guantanamo Bay were considering an executive order to hold suspects that may be too dangerous to release and too difficult to charge, according to three government officials.

Other news organizations, including the New York Times, also reported that an executive order was under consideration. Administration officials told the Times that working with Congress did not necessarily mean passing legislation. Mr. Obama, they said, would consult with lawmakers even if he eventually decided to enact his system through executive order.

Several Congressional staff, also speaking on the condition of anonymity, told us that administration lawyers in recent weeks acknowledged in private discussions that they were considering an executive order.

In response to our previous story, Ben LaBolt, a White House spokesman, acknowledged that an executive order was an option but said no decision had been made and that the president was waiting to see recommendations from a Justice Department Task Force studying detention policy. The task force has until July 22 to offer proposals.

One administration official suggested last week that the White House was already trying to build support for an executive order.

"Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order," the official told ProPublica. Such an order could be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should be prosecuted or released.

The possibility of carrying out such a policy through an executive order was widely criticized by civil rights groups last week, including the American Civil Liberties Union.

In a May speech, Obama broached the possibility of prolonged detention for some detainees whom the administration may categorize as too dangerous to release but too difficult to charge.
Obama told the AP Thursday that indefinitely imprisoning terror suspects is "one of the biggest challenges of my administration."

"It gives me huge pause," Obama said. "And that's why we're going to proceed very carefully on this front. And it may turn out that after looking at all the dimensions of this that I don't feel comfortable with the proposals that surface on how to deal with this issue."

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Many States Leave Federal Unemployment Money Unclaimed

2009-07-02T18:52:00.004-04:00

By Olga Pierce, ProPublica

A few governors were loud about rejecting stimulus funding for expanding unemployment insurance, but many states have quietly let their share of the funding sit in Washington.

So far, only about half of the $7 billion included in the stimulus package has been claimed by states. (See our interactive map and chart.) What's more, about two-thirds of the funding that has been distributed has gone to states with existing laws, and not to states with newly expanded benefits.

Four states have explicitly rejected the funding, but many others have so far failed to pass legislation qualifying them for incentive payments.

States have until 2011 to qualify for the funding, but government projections predict that by then the worst of the unemployment crisis will be over.

Under the stimulus bill, states can qualify for the extra funding by extending unemployment insurance to new categories of workers. To receive a third of the funding, they must begin using something called an alternative base period, which would allow more low-wage workers to receive unemployment benefits.

To get the other two-thirds of the cash, they must adopt at least two other changes from a list that includes covering part-time workers and offering $15 extra per week for each dependent.

If states meet the requirements, they qualify for a federal lump sum payment that will cover the cost of expansion for at least three years, or longer in many cases. It was on those grounds – that after the federal funding runs out states will have to find another way to cover the cost – that Louisiana Gov. Bobby Jindal, Mississippi Gov. Haley Barbour and others that said they would reject the funding.

Advocates have been calling for expanding benefits for years as a way to make sure that unemployment benefits are available to non-traditional workers who make up an increasing proportion of the workforce.

In the early 1990s, a bipartisan commission convened by President Bill Clinton urged states to adopt reforms, similar to those in the stimulus bill, which would include more workers in the unemployment insurance system.

The language in the stimulus bill – with its carrot-and-stick approach to getting states to adopt changes -- is nearly identical to House and Senate bills introduced two years ago during the 110th Congress. An original sponsor of the Senate bill: then-Sen. Barack Obama.

Advocates for expanded unemployment insurance declared the glass half full: After all for the first time a majority of states, 34, have adopted the alternative base period, even though 19 of those states used it already. Likewise, 27 states now offer unemployment benefits to part-time workers.

“These are workers who have been left out of the system,” said Maurice Emsellem, co-policy director of the National Employment Law Project. “Now workers who were falling through the cracks of the unemployment system will be able to find their way back in.”

Supporters are hoping, Emsellem said, that states will continue to offer expanded coverage even after federal funding stops, which seems likely in many states because of the difficulty of dialing back benefits for the unemployed once they are in place.

Some states do seem poised to keep at least some of the changes.

Offering benefits to workers in job training programs “just seems like good policy,” Jack Hill, the Republican chairman of the Georgia Senate Appropriations Committee, told ProPublica. By also adding coverage of part-time workers, Georgia has already received its full $220 million in incentive payments.

In Alaska, which qualified for almost $16 million in funding by adopting the alternative base period, state legislators were swayed by the relatively low cost of covering an estimated 1,700 additional workers, said Larry Persily, legislative aide to state Rep. Mike Hawker, a Republican who co-chairs the House Finance Committee. Ultimately, the legislation was passed nearly unanimously, though the House is Republican-controlled, the Senate is evenly split, and Gov. Sarah Palin announced her intention to reject the aid.

“We spent a much longer time looking at the proposal than the governor did,” Persily said.
Though the stimulus bill bars states from including sunset provisions in their bills, some states have said they plan to take the cash and roll back the expanded eligibility once they are allowed to do so.

Tennessee Gov. Phil Bredesen, a Democrat, initially announced qualms about accepting the funding on the basis that it could result in higher unemployment insurance costs for the state. Ultimately he announced his support for accepting the funding – but only with the explicit understanding that benefits will be rolled back when the recession is over.

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Solis: Administration Policies 'Helping Millions' As Jobless Rate Climbs Higher

2009-07-02T06:52:00.003-04:00

Obama administration policies are helping to stabilize the U.S. economy and help millions of jobless Americans, even as the unemployment rate has hit a 26-year high, Labor Secretary Hilda Solis proclaims.

Unemployment rose to 9.5 percent, and the number of those jobless seeking work hit 14.7 million in June, which represents an uptick over May figures. The number of jobs on employers' payrolls fell by 467,000 in June, according to Labor Department figures.

"When this administration took office, the economy was shedding jobs at a rate of 700,000 per month," Solis says. "This past June our economy lost 467,000 jobs, bringing the total number of jobs lost since this recession began to 6.5 million. The overall unemployment rate increased to 9.5 percent.

"As the administration's policies take hold there are signs that the economy is gaining strength. Consumer confidence is rising and the housing and financial markets are stabilizing," she adds. "Through our urgent efforts we are helping millions of Americans who have lost their jobs to regain their footing in the workplace and to lay the foundation for a new and robust economy."

Obama in February signed a massive $787 billion economic stimulus package known as the American Recovery and Reinvestment Act.

The Recovery Act is providing "much needed relief to the economy," Solis contends.

"At this very moment, 1,900 highway projects are already under way as $19 billion in transportation construction funds have been put to work. An additional $4 billion in loans and grants are creating jobs by bringing broadband service to un-served and underserved communities across America," she says.

Yet, there are reports that question the Recovery Act's implementation.

In a statement, Solis ticks off a number of Labor initiatives underway to aid the growing ranks of the unemployed.

"The department has released more than $57 million in National Emergency Grants to help communities cope with mass layoff events and other emergencies," she says. "We additionally have released $1.7 billion in incentive payments to states that update their unemployment insurance eligibility requirements so that more workers -- including recent entrants to the workforce and part-time workers -- can access benefits. So far 25 states and the District of Columbia have qualified for these payments.

"We are moving swiftly to protect workers who have lost their jobs and to provide new training opportunities so that workers can upgrade their skills and prepare for new employment in growing and emerging sectors like green jobs and health care," Solis adds.

Labor recently awarded 98 grants, totaling more than $25 million, through its Homeless Veterans Reintegration Program, according to Solis. This program provides approximately 15,000 veterans with job training to help them succeed in civilian careers.

"It is also of vital importance that we help our next generation succeed in the workforce," Solis adds. "We have distributed $50 million for Youth Build programs to expand services to at-risk youth and our Summer Youth Employment program will help employ more than 200,000 youth this summer. These efforts come in addition to the $2.5 billion in Recovery Act funds recently announced by the Vice President [Biden] to help states support their education budgets."

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