Friday, December 12, 2014

It's Only A Short Step From Police Killing Dogs to Police Killing Black Males

Before you go getting all offended by the title of this post, hear me out.

Way back when, before the choke hold death of a black man in New York, before the gunning down of a black almost-college-freshman in Ferguson, Missouri; before the fatal shootings of young black boys in a WalMart and Cleveland playground. . .

Before all those tragic examples of what happens when police officers view some citizens as less than human, there were repeated accounts of tragic encounters between cops run riot and family pets, specifically family dogs.

Indeed, the day that the killing in Ferguson grabbed the spotlight, I was planning this post in response to the increasingly common news stories of law enforcement officials gunning down dogs who were doing nothing more than protecting the residences of their human families.  These were not junk yard dogs, or drug dealer dogs, or attack trained dogs.  These were dogs who happened to be in the residences entered or yards traversed by cops pursuing alleged criminals.  The dogs had the audacity to growl and bark at uniformed officers who entered the dogs' domains, domains that their human families relied upon them to protect and give notice of intruders.

In each and every case, the dogs were deemed "dangerous" by the trespassing officers and shot dead.  Never mind that the houses  belonged to law-abiding citizens whose yards the suspects just happened to cut through while fleeing capture.  Or, in other cases, the houses belonged to law-abiding citizens whose homes were erroneously targeted in no-knock warrant sweeps that had would-be stormtroopers crashing through front doors, to be challenged by the resident canis lupus famillaris.

Now, I have seen dog fights.  When a new male collie challenged our alpha female collie, I could not believe that the two beasts battling it out in front of me were the same beautiful, tame, friendly pets who followed us around and played with us like the big, overgrown puppies they were.  Jaws opened to improbable widths.  Fangs slashed with dizzying speed.  Roars that had no relation to typical barks or growls thundered from throats raised high above the ground as the challengers jockeyed for position and a maiming bite.

Three times I was witness to the savage ferocity of these cousins of the wolf.  The contests ended only when our human pack leader exerted his authority during the third fight, firmly ensconcing the female above the male in pack hierarchy.

These fights between our Lassie lookalikes made clear that every dog is both Dr. Jekyll and Mr. Hyde.  In every playful, fuzzy puppy romping with its human family lurks the cunning, fierce, dangerous protector of the pack.  To a dog, every human who has not been accepted as a friend by its family is a threat to the pack.  Every human who enters the pack's domain without permission presents a danger to be kept at bay.

In short, dogs can be fiercesome creatures, capable of eliciting the most primitive response of fear with nothing more than a curled lip, flattened ears, raised hackles, or throaty growl.

While I can appreciate that a cop confronted by a protective dog can feel threatened, too often it is the dog who pays the price for a cop's arrogant -- yet wrongful -- fear-induced assertion of power in the dog's domain.  And too often, the cop gets away with slaughtering the family pet, because no one has told them they may not kill dogs with impunity, with no repercussions, and no accountability.

Dogs are, after all, just dogs.

Right?

Those first ten amendments set forth in the Bill of Rights to the U.S. Constitution requiring warrants, prohibiting unreasonable searches and seizures, and protecting against cruel and unusual punishment don't apply to dogs.

Right?

Do you see where I'm going here?

When a cop adopts a "shoot first and ask questions later" attitude in dealing with black males, two things are going on deep within that human's psyche.  First, as in dealing with a protective dog, the cop is reacting on a visceral level to a whole host of fear cues.  Sometime, somewhere, somehow, the cop learned to associate black males with imminent, mortal danger.  Second, the cop is reflecting a societal norm in this country that ranks blacks somewhere way, way below Caucasian males in the right to be treated with respect; to be protected by the full panoply of due process rights set forth in the Constitution; and to be deprived of life or liberty, only after a judge or jury -- and not some random individual or lynch mob or cop -- has found sufficient evidence of an actionable offense.

But something else is going on as well.  Just as there has been no national consensus that the indiscriminate killing of family dogs by marauding cops must end, there has -- until Ferguson -- been no national outcry against cops treating citizens of the United States as enemy combatants and deaths of those citizens as collateral damage in the war on crime.

As news coverage of the Ferguson riots demonstrated, the militarized police forces terrorizing minority neighborhoods are as far removed from the homespun wisdom of a Sheriff Office run by Andy Griffith, or a Sparta, Mississippi, Police Department run by Carrol O'Connor, as the Hubble telescope is from the Earth's atmosphere.  The Constable On Patrol (COP) who used to diffuse sticky situations with nothing more than words and a whistle has been replaced by ex-Army, ex-Special Forces, ex-Marine veterans-turned-cops, whose attitudes about perceived enemies are as much a barrier to communicating with the people they are supposed to "protect and serve" as the storm trooper gear they don at the least provocation.

Life has begun imitating art when it comes to policing in America.  All those movies and television shows that have helmeted, body armoured, jackbooted SWAT Teams spilling out of massive personnel carriers, smashing through front doors with battering rams, and tossing flash-bang grenades through windows have become the civics classes for too many law enforcement officials.  The policing reality painted by Hollywood writers has replaced more than 200 years of due process law that forbids exactly the kind of mayhem being loosed upon our citizenry, especially our black, male citizenry.

It is time our police return to school to be reminded that this country was founded by people who fought a Revolutionary War to assure that they could enjoy the same rights and privileges that officers routinely promise to preserve and protect during their swearing in ceremonies.  A different generation, in a different Civil War, fought to assure that those rights and privileges would be enjoyed by all black citizens.  And an entire movement was launched in the 1960's to demand the immediate adherence to the series of constitutional amendments adopted after the Civil War, specifically intended to guarantee those rights for all citizens regardless of race.

As Section 1 of the 14th Amendment makes clear:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Police officers, whether employed by a city, state, or federal law enforcement agency, are representatives of "the State" when acting in their official capacity.  When they kill a citizen, or detain a citizen, or destroy the property of a citizen without first adhering to the requirements of due process, those officers violate the Constitution and, thus, their oath of office.

It is past time that our law enforcement officials learn exactly what "rights" they have sworn a duty to preserve, and stop killing the citizens they have been entrusted to protect.  And while they are at it, perhaps police officers can learn that it's not OK to deprive citizens of their property, i.e., the family dog, merely because it is more expedient to kill a perceived threat and, after all, a dog is just a dog.

Right?

Wednesday, October 8, 2014

Lessons in Voting from the Patty Duke Show

The Patty Duke Show once aired an episode in which Patty was running for class president against her twin cousin Cathy.  As the contest between the two intensified, their campaigns assumed all the nasty hallmarks of modern politics: name-calling, name-calling, and more name-calling.  And while the two former bosom buddies battled it out on stage, behind podiums, and around campus, another person went virtually unnoticed: a third candidate who had neither the good looks, sparkling personalities, nor popularity of the contentious cousins.  Nevertheless, it was the third candidate, the ugly duckling, the girl whose entire platform consisted of three words--"Vote For Me"--delivered in a quiet, respectful manner, who won the election in a landslide.  

Right now, as I watch Democrat Natalie Tennant and Republican Shelley Moore Capito battle it out for Jay Rockefeller's (D. W.V.) seat in the United States Senate, I am feeling the kind of disgust that made the fictional voters in that long-ago show choose a virtual unknown over the back-biting cousins.  Unfortunately, there is no third choice in the upcoming election.  Thus, while I can, by voting for Tennant, send Capito a clear message that I am offended by the shenanigans perpetuated by her Republican Party for the last 14 years, there is no third person for whom I can vote to send an equally clear message to Tennant that I object to her running as "Capito light."

If a candidate running for office as a Democrat wants my vote, I expect the candidate to run on the accomplishments of that party.  The last thing I want the candidate to do is parrot the protestations of her Republican opponent that she has done everything she could to thwart any and all governance by the first black President of the United States.  A Republican candidate can protest all she wants that the opposition is coming to take my guns away, but I expect a Democrat to reject such hysteria and instead advocate support for intelligent and reasoned measures that will assure that guns are kept out of the hands of criminals, wife beaters, and the dangerously mentally ill.

"War on Coal" rhetoric is to be expected from a Republican whose path to the Senate is paved with the gold of coal company CEOs seeking to install a puppet who will look the other way as they blast apart mountains, foul streams, pollute drinking water, violate safety regulations, decimate unions, and kill miners.  But a Democrat who spouts off against "Obama's War on Coal" in a thinly veiled attempt to curry favor with the racist redneck portion of the electorate is in danger of losing the support of any voter who recognizes that the needs of the almost 2 million people who live in West Virginia should outweigh the wants of the less than 10,000 miners who are still employed in this state and the few coal companies that still operate here.

Wednesday, May 7, 2014

Out Of The Mouths Of Racists....

My, my, my.  Where to begin?

Within the space of two weeks, the news cycle has treated us to one rich white cowpoke and one fabulously rich white octogenarian spouting racist rants about "the Negro" that would make a ku klux klan member blush with pride.

Finally.

Oh, come on.  Admit it.  No matter which side of the racial divide you find yourself on, you have to admit that hearing such racist tirades spoken in public is music to your ears.

The Confederates among you celebrated the "bravery" of white dudes who would not be cowed by political correctness into towing the racial line.  And by "Confederate," I don't mean the inhabitants of the Old South.  Southerners never had a monopoly on denigrating an entire group of people based upon race alone.  The desire to keep African-Americans out of neighborhoods, housing, churches, schools, employment, and political institutions and offices once dominated by white, anglo-saxon males was never, ever a monopoly enjoyed only by caucasians living south of the Mason Dixon line.

Heck, 40 years ago my little brother's best friend boasted that, by joining the Philadelphia Police Department, he'd be able to beat up blacks with impunity.  Can't get much more Northern than Philadelphia.

And as for the non-racists among you, you who really do care more about character than melanin, who have twisted in agony every time some white schmuck yells "You lie!!" at our first black president, who have feared for President Obama's safety when militia wannabes come fully armed to his public appearances, who have bristled with anger every time a Republican governor wags her finger under the President's nose as though addressing an errant schoolboy, the recent incidents have vindicated your conviction that the new subset of Republicans known as the Tea Party is populated by racists.`

Many other U.S. presidents and political candidates have been excoriated with vitriolic sentiments comparable to those levied at President Obama.  Heck, Alexander Hamilton was killed in a duel with arch rival Aaron Burr.  Can't get much more vitriolic than murder.

But even that deadly argument was played out by "gentlemen" on a level playing field.  Political differences, not class or racial distinctions, underlay the contest.  Viewpoints, opinions, beliefs may have created a sharp divide, but no matter the issue, each contestant knew he was the societal equal of his opponent and commanded the respect due an equal.

In contrast, the Tea Party has made it abundantly clear that its membership occupies a higher social strata than President Obama.  As a consequence, its members believe they may disrepect with impunity the man who they contend is disqualified by race to occupy the Oval Office.  This belief is clearly evident in the insulting and racist signs and banners displayed by Tea Partiers at their rallies, which portray: Obama as a monkey and his spouse and children as a family of chimpanzees; a hangman's noose hanging from a tree, reminiscent of lynchings suffered by African-Americans; the White House as a plantation with Obama as its "massa"; Obama as a tribal witch doctor, complete with a bone through the nose and feathered adornments; calls to not "re-Nig" in 2012; cross burnings attended by white-sheeted KKK members; references to Obama as a "tar baby"; a business owner's sentiment that "I don't support the nigger in the white house"; a skunk, with the sentiment: The skunk has replaced the eagle as the symbol of the President. It is half black, half white, and almost everything it does, stinks."

Now that Cliven Bundy and Donald Sterling have been recorded expressing their real feelings on race, they have done what none of the above examples of racism accomplished: they have forced Fox News and its ilk to back pedal on the implicit succor and support they have been providing to racists inhabiting both the Tea Party and TeaPublicans.  And that is something to be celebrated--even if short lived.

Friday, April 4, 2014

Oso, Washington Landslide: Too Bad There Was No Advance Warning. Oh, Wait--There Was.

When Mother Nature pitched a fit in 2004 and sent a massive tsunami thundering across the Indian Ocean, creating 100-foot waves that killed over 230,000 people in 14 countries, humanity  hung its head in sorrow and lamented the lack of an early-warning system that could have given victims the time to reach higher ground.  Since that tragic event, multiple nations have worked together to create a tsunami warning system similar to those that exist in the Atlantic and Pacific Oceans.

Ten years later, a new catastrophe has struck, this time in Oso, a small community on the banks of the Stillaguamish River in Snohomish County, Washington State.  So far 60 people are known to have been killed by a mile-wide wall of mud, rocks, and trees that slumped off the hillside dubbed "The Hazel Landslide" by geologists.

I don't know about you, but if I was looking to buy a piece of property on which to build a house, the last place I would look is anywhere near anyplace with the word "landslide" in its name.  Given the human penchant for self-preservation, it's a pretty sure bet that the Oso victims would feel the same.

So, the question is, did the victims know they were building their houses in a danger zone?  And if not, why not?

I fear the answer to why the victims would not have known of the danger boils down to money.  As in taxes the local community and county would have collected from the homeowners.  The money the contractors would have made by building the homes.  The income the real estate agents would have earned by selling lots.  The millions the developer would have received for developing the raw acreage into a subdivision.  And, of course, we cannot forget the loggers whose livelihoods depended on cutting down the trees located on top of the Hazel Landslide.

Geologist Dan Miller, like the rock hounds and engineers who came before him, was well aware of the danger posed by Hazel.  In a 1999 report prepared for the Army Corps of Engineers, Miller detailed Hazel's history of  landslides dating back to 1949.  Between 1949 and 2006, major hillside avalanches slumped off the mountain five different times: in 1949, 1951, 1967, 1988, and 2006.  Interspersed among these major events were more frequent, though less devastating, slips.  Miller prepared other reports detailing Hazel's instability for the federal government, the State Department of Ecology, and a timber company.

Miller's warnings were preceded in the 1950's and 1960's by other engineers' reports detailing the danger posed by the sandy soil that underlay Hazel's surface, and the river erosion that undercut her base.  Plans in the 1950's to reroute the river were scrapped in the 1960's, because the lands of the new route were already divided into lots for summer cabins.

Despite all these warnings, county officials continued to issue building permits for homes in Hazel's danger zone.  Indeed, when Miller returned to the area after the 2006 landslide, he couldn't believe the county was still allowing houses to be built right across the river from the slide.

To say that the various governmental entities with knowledge of Hazel's penchant for thundering off the mountain failed the Oso victims, would be an understatement--and a clear indication that those entities have forgotten what the Founding Fathers of this country knew so well: that the purpose of government is not to act as a chamber of commerce, but to "establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity...."

I'd say the officials in Washington State failed the Oso victims on all counts.

Wednesday, April 2, 2014

McCutcheon v. Federal Election Commission: Ignoring Precedent

The five justices of the Supreme Court appointed by Presidents Ronald Reagan (Antonin Scalia, Anthony M. Kennedy), George H.W. Bush (Clarence Thomas), and George W. Bush (Samuel Anthony Alito, John G. Roberts, Jr.), issued a decision today striking down another aspect of the campaign finance reform law that Congress enacted after determining that such regulation was needed to avoid corruption or the appearance of corruption in the electoral and political process.

No doubt the punditsphere will be rife with commentary on the type of regulation upheld (base limits), versus the type of regulation outlawed (aggregate limits).  The cynical will conclude that the five justices upheld the type of limit that restricts the amount of money regular joes can contribute to a candidate, while throwing open the floodgates for the multimillions that millionaires and billionaires can funnel into the campaigns of the politicians who tow their corporate lines.

But concentrating on the guts of Chief Justice Robert's opinion totally ignores the more egregious flaw in that decision, a flaw that would earn any first year law student a resounding "F" in constitutional law class.

Any fledgling law student, after poring over case after case after case during the first year of law school, learns one basic truth of the relationship between the Supreme Court and all lower trial courts: i.e., unless the question presented to the Supreme Court for decision is purely a matter of law, the Court will require that the lower courts conduct evidenciary hearings to develop adequate factual records upon which the courts can base their decisions.

Which means, as the four remaining justices emphasized in their dissenting opinion, because the lower court arrived at its decision before a full evidentiary hearing was held, the Court should have sent the case back to the trial court so evidence could be collected and a factual record made.  According to the dissenters: 

In the past, when evaluating the constitutionality of campaign finance restrictions, we have typically relied upon an evidentiary record amassed [in the lower court] to determine whether the law served a compelling governmental objective. And, typically, that record contained testimony from Members of Congress ... explaining why Congress ... acted as it did ... If we are to overturn an act of Congress here, we should do so on the basis of a similar record ...

Determining whether anticorruption objectives justify a particular set of contribution limits requires answering empirically based questions, and applying significant discretion and judgment.  To what extent will unrestricted giving lead to corruption or its appearance? What forms will any such corruption take? To what extent will a lack of regulation undermine public confidence in the democratic system? To what extent can regulation restore it?

These kinds of questions, while not easily answered, are questions that Congress is far better suited to resolve than are judges. Thus, while court review of contribution limits has been and should be “rigorous,” ... we have also recognized that “deference to legislative choice is warranted.” ... And that deference has taken account of facts and circumstances set forth in an evidentiary record ...

The plurality rationalizes its haste to forgo an evidentiary record by noting that “the parties have treated the question as a purely legal one” ... But without a doubt, the legal question—whether the aggregate limits are closely drawn to further a compelling governmental interest—turns on factual questions about whether corruption, in the absence of such limits, is a realistic threat to our democracy. The plurality itself spends pages citing figures about campaign spending to defend its “legal” conclusion ... The problem with such reasoning is that this Court’s expertise does not lie in marshaling facts in the primary instance. That is why in the past, when answering similar questions about the constitutionality of restrictions on campaign contributions, we have relied on an extensive evidentiary record produced below to inform our decision ... 

Without further development of the record, however, I fail to see how the plurality can now find grounds for ... a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform....

Four justices of the Supreme Court appointed by Bill Clinton (Ruth Bader Ginsburg, Stephen G. Breyer) and Barack Obama (Sonia Sotomayor, Elena Kagan) joined in the dissenting opinion.

You can draw your own conclusions regarding the significance of the justices' split along party lines.

Saturday, February 22, 2014

What would Matt Dillon do?

Protesters in Ukraine have managed to wrest the world's attention away from the Olympic Games in Sochi, and direct it a bit to the west, to their capitol in Kiev.  There, at the cost of at least 77 lives cut short by police sniper fire, citizens in that country ousted the president who planned to link them to Vladimir Putin's new "Eurasian Union," the latest iteration of the old Soviet Union.  Memories of their treatment by the old Russia fueled protests against the politician who planned to climb into bed with the new Russia.

All of which makes me wonder: How many people would have died at the hands of the police in this country, if the citizenry had decided to  protest the Republican engineered "Brooks Brothers" riot that ended the Florida recount vote, essentially installing George W. Bush as president. (See  http://www.salon.com/2000/11/28/miami_8/ ) Or to demand that Congress act to legislatively overturn the Citizens United decision, which held that inanimate corporations are entitled to the same First Amendment right to free speech as actual people.  Or to protest the lack of prosecution, imprisonment, and impoverishment of the bankers, brokers, and other Wall Street types whose greed manufactured the Great Recession of 2008.

If real life were a Gunsmoke episode, Marshal Matt Dillon would defend the right of townsfolk to have a fair election.  The mean spirited and avaricious cattle baron who attempted to intimidate voters with hired thugs would be defeated by the marshal and his band of citizen-deputies, hauled before the judge for trial, and sentenced to a lengthy stay in the territorial prison.

The power hungry politician who tried to squelch the opposition by having his minions torch the local newspaper and destroy the printing press, would find himself on the wrong side of the marshal's posse.

And the outlaws who robbed the stage coach and stole the company payroll would have their bullet-riddled bodies slung over their horses' saddles and brought back to town for burial by the undertaker.

Unfortunately, history demonstrates that government police power is rarely exercised on behalf of those who seek to change the status quo.  The law abiding marshal who seeks to protect the underdog makes for good Hollywood theatre, but in today's world of SWAT Teams and militarized police forces, the people who decide when and where force will be used are not the Matt Dillons of this world, but are those who Matt Dillon would have arrested or shot.

Thursday, February 20, 2014

At least slaves got room and board

While perusing one of my favorite news sources yesterday, I came across a longish article describing the difficulty college graduates are having in securing paid employment.  Supposedly, the economy is so bad, that companies are not hiring the newly diplomaed.  Which is not the same thing as saying that companies are missing out on the intelligence, energy, and education that those youngsters can bring to the workplace. No.  Not at all.  Rather, businesses have devised a way to have the cake without paying the baker by offering unpaid internships.

Internships are nothing new.  They've been around since at least the middle of the last century and serve the dual purpose of allowing an employer to assess the performance of a potential employee, while permitting a student to try out a potential career.  Typically, internships provided either money or academic credit -- or sometimes both -- in exchange for the student's labor.  In legal terms, internships amounted to a quid pro quo: work in exchange for compensation.

The unpaid work being offered to today's college graduates fits neither the modern model of scholarly internships, nor the ancient models of slavery, apprenticeship, or indentured servitude.  In the latter, individuals were provided at least food, shelter, and clothing in exchange for their labor.  Many of today's college graduate interns, however, provide labor in exchange for nothing: not room, not board, not even educational credit.

Anyone who is familiar with the struggles of workers and unions in the last two centuries, can only marvel at the giant steps backwards that the labor movement in this nation is experiencing, as evidenced in the plight of today's unpaid interns.

At one time, it was common for indentured servants to work on farms or in factories to repay the cost of steerage to the New World.  Miners toiled long hours, putting both their health and safety at risk, in exchange for "scrip" that had no value outside the company store.  Workers sweat, and bled, and died in a multitude of horrific working conditions; in exchange, they were rewarded with delayed pay days, if they were lucky, and no pay if they weren't.  For in the heyday of company towns, workers frequently ended up owing the employer by the time the cost of housing, food, tools, and other equipment was deducted from their pay.

Through agitation and unionization, workers managed, by the 1950's, to level the playing field between labor and management.  Mining and timbering states like West Virginia enacted laws requiring employers to pay workers in U.S. currency and at least every two weeks.  Workers unionized, and those unions organized safety committees to improve working conditions.  Federal laws were put in place to protect workers who reported unsafe or unhealthful work practices.  Other laws protected employees' right to unionize and to bargain collectively with their employers.

By the time all the commencement speeches are finished this year, graduates should be walking into a work world that is at least as safe and economically productive as that which existed in the days of their grandparents.  But they aren't.  And they aren't because the crowd that has been dubbed "the one percenters" have managed to hijack the electoral process and undo a good portion of the legislation that was designed to protect the right to unionize and bargain collectively.  We won't even get into the ill-advised trade agreements that decimated manufacturing in the United States, and repeal of banking and investing laws needed to prevent the Great Recession.

Nope.  This generation has found itself launched back in time to a much less employee-friendly place.  But history is a good teacher.  And it teaches that sometimes you have to break a few windows, start a few fires, bruise a few knuckles to make yourself heard and taken seriously.  Whether this generation has the gumption to wrest back that which had already been hard won is yet to be seen.  But I'm thinking it might be time to start lighting the torches, sharpening the pitchforks, gathering the feathers, and boiling the tar.

        

    

    

Monday, February 10, 2014

Confessions of an industry lacky

When I practiced law at a firm that defended companies and corporations, my particular department specialized in coal industry matters.  We were the go-to guys for arguing that coal companies should face minimal responsibility for accidents or explosions that maim or kill, impoundment dams that flood, or dust and waste water that pollute.  We specialized in arguing that miners who develop coal workers pneumonconiosis should not receive the black lung benefits authorized for them or their surviving widows and children by Congress.

The lawyers in our firm worked closely with the local trade associations to draft state laws favorable to mining interests.  The original drafts for such laws typically originated either with the local trade group, or in the form of a template obtained from a larger, national entity. Our job was to massage the wording in the template to reflect local conditions, and to assure that the wording in the proposed legislation, if it could not specifically benefit the coal industry, remain as ambiguous as possible.

Yes, you read that right.  Our clients often wanted us to deliver a deliberately ambiguous document, for when it comes to laws and regulations, ambiguity is the mother of litigation.  And the next best thing to having a law worded in a way that furthers an industry's goal, is having the law worded so ambiguously that it cannot be used against an industry -- at least, not until it is tied up in litigation before trial and appellate courts for years and years, while judges struggle to determine the intent and meaning of law.

Which brings us to Senate Bill 417, the new legislation passed by the West Virginia State Senate, and forwarded for consideration and debate by the West Virginia House of Delegates.  The proposed law is a response to the pollution of the Elk River by a leaking chemical tank, and the resulting deprivation of potable water to 300,000 residents in a nine-county area.

In on-camera interviews and during public meetings, law makers state that the purpose of the new law is to assure that the rivers, springs, and wells that provide water to the state's residents are protected from any pollution like that which occurred during the Elk River disaster.  However, when the very first words of the proposed law state that  "The Legislature recognizes that industrial businesses are vital to our economy, create good-paying jobs with benefits for our citizens, and ensure that commerce will continue to flourish in West Virginia(,)" law makers have essentially told judges that they may place the needs of industry above those of human residents when attempting to interpret and resolve ambiguities in the law and regulations promulgated to enforce that law.

Furthermore, when the law goes on to state that "The Legislature also recognizes that many factors go into an industrial facility's selection of a site to do business, including, but not limited to ... a state's regulatory environment ... (,)" lawmakers have provided industry with a strong basis for arguing that courts may interpret the law and apply regulations in a manner that places the health of industries' bottom line over the health of individual citizens.

All of which is a long way of saying that passing a new law, by itself, will not prevent future incidents like the Elk River disaster.  Nor will passing a law that has a feel-good -- but misleading -- name that is at odds with the legislative findings or history set forth at the beginning of the law.  Every word, clause, paragraph, and section of a law must support its publicized purpose.  And once the law is passed, there must be individuals in the executive branch with the political guts to assure that the law is implemented and penalties enforced. 





Wednesday, January 29, 2014

Twenty days later....

It's been 20 days since the chemical with a licorice smell leaked into the Elk River in Charleston, West Virginia.  The tank farm from which the chemical leaked, located upstream from the West Virginia-American Water Company intakes used to supply water to a nine-county area, is being dismantled.  Federal HazMat teams are on site inspecting the emptied tanks and pipes, which are to be hauled away for proper disposal.

The Charleston Gazette Newspaper is reporting that the Federal Emergency Management Agency (FEMA) has concluded the water emergency here in the hills is over.  Most distribution sites where residents were able to obtain free bottled water have been closed.  For three weeks, water company officials and the Governor have assured the public that the water is safe to use.

Unless you are pregnant.

Or a young child.

People here remain skeptical of the reassurances from officialdom.  And if my own experience is any indication, they remain so for good reason.

Yesterday, I gave in and took a shower.  And did laundry.  I had wanted to wait for the one-month anniversary of the leak to do either.  That seemed like sufficient time for Mother Nature to flush the Elk with mountain runoff and provide clean water to the utility's intakes.

But have you ever gone almost one month without a shower?  Sponge baths and washing your hair at the kitchen sink with bottled water heated on the stove just doesn't cut it.  So, since the ice cubes from the ice maker were no longer coming out purple and smelly,  and since the bathroom and kitchen no longer smelled like licorice every time the spigots were turned on, I decided to chance it and take a shower.

Guess I should have waited.  My hands and arms are now sporting an itchy, red, pinprick rash.  Fortunately, my eyes are OK and I don't have the welts that the earliest victims of the spill experienced.  On the off chance that the newly laundered sweatshirt was to blame for the rash, I switched into pre-spill clothing.  The itching is less, but the rash is still there.

Methinks bottled water is going to be a consistent item on the shopping list for a long, long while....




Friday, January 17, 2014

Mama, Don't Let Your Rivers Grow Up To Be Named "Elk"

"Elk River"

Has such a nice ring to it, don't you think?

You can just see the majestic animals, with their impressively massive antlers, standing beside a flowing body of clear water that ripples and burbles over smooth mid-stream rocks.  One after another, Papa, Mama, and Baby elk dip their mouths into the stream and drink deeply of the water that started days before as a single droplet falling from a melting snowpack.  That drop, and millions of its brethren, wended their way into rivulets, then creeks, then streams, gushing finally into the ice-cold confluence of all that run-off which our forebears, a hundred years or more ago, named The Elk River.

There are quite a few Elk Rivers in the United States, probably because there used to be huge and widespread herds of elk.  And in the days before printed maps and GPS directions, settlers tended to follow the example of Native Americans and name places as descriptively as possible.  Hence, the "river of many fish" or "Hash-tah-buh-lah" became the Ashtabula River to white settlers.  The creek in Virginia where cows gathered to cool off in the heat of the summer became "Cow Creek."  The "river with oysters" became Sisa'we'hak'hanna to the Lenapi Indians of Pennsylvania, or "Susquehanna" to later English settlers.  And, much less poetically, the place where large flocks of passenger pigeons once gathered outside Philadelphia became "Pigeontown."

The passenger pigeons have since flown into extinction on the bullets of near-sighted sportsmen who thought the creature whose flocks once darkened the midday sun would go unscathed despite ceaseless and uncontrolled hunting.  That same lack of forethought and control led to the extinction of Eastern Elk herds.

Maybe it's time to re-name all the Elk Rivers that are no longer visited by their namesakes, just as Pigeontown was re-named "Blue Bell" after the inn that was built at the site of the passenger pigeons' former home.

Chances are good, though, that the new names will not be as majestic as the old, if current conditions of the waters flowing in those rivers are used as a basis for the new descriptors.

Take, for example, the Elk River in the northern California mountains that has been fouled by sediment run-offs caused by over-timbering.  A more accurate name today would be Strangulation Stream.  Or perhaps Muddy Wash.

Then there is the Elk River in Montana, which has been fouled by selenium washed away from surface coal mines in British Columbia, Canada.  Given the devastating effects of the chemical on aquatic life in the river, Dead Fish Run is a more apt moniker.

Minnesota has its own Elk River re-naming candidate, which is fouled by run-off from the feedlots and agricultural industries now located along its banks upstream from Minneapolis and St. Paul.  Perhaps a name could be drawn from the government documents describing the pollution problems there: E-coliform Creek, perhaps.  Or maybe Phosphorus Flow.

Last but not least is the Elk River in West Virginia.  Like the Elk in Minnesota, this stream supplies drinking water to the largest population center in the state.  And like the Elk in Montana, it has been fouled because of coal mining.  Specifically, a chemical used to wash processed coal has leaked from a huge storage tank located on the banks of the river.  Unfortunately, that location put it upstream of the intakes used by West Virginia American Water Company to obtain drinking water for 300,000 customers in a nine-county area.

No entity which typically is responsible for guaranteeing the safety of drinking water knows enough about the chemical at issue--4-methylcyclohexane methanol ("Crude MCHM")--to state with any certainty when the water will be safe to use and drink again.  The 1 part per million figure that is being quoted by politicians and water company officials is not based on any science that a chemist, environmental engineer, or occupational safety specialist has ever accepted as probative.

Individuals who have acted on official assurances and actually bathed in or consumed water after being given the all-clear, have ended up in hospital emergency rooms with whole-body rashes, eyes swollen shut, nausea, vomiting, and other symptoms.  

Admittedly, the eyes of the nation and perhaps the world (and hopefully no terrorists) are on the water company officials here; politicians want to appear competent and in control.  But the desire to have life and business return to normal must not outstrip scientific reality.

Until water from the Elk is actually safe to use again, we should refrain from drinking it, lest we follow in the hooves of those majestic antlered beasts and disappear forever from the banks of their namesake river.