Representative Ed Royce (R – CA) – The potential hero of food aid reform

These next 48 hours are critical for advancing reform of US international food aid, which I have blogged about previously.  Short version: because current rules essentially demand that we provide aid in food grown in the US via government subsidy, our current aid regime wastes money, delays delivery of aid by weeks, lines the pockets of agribusiness and big shipping, often undermines farmers in the Global South, and leaves 2-4 million people starving who could otherwise be helped.

The basic answer is to allow food to be procured locally; the Obama Administration’s budget proposal did just that, and was given the back of the hand by special interests in the Senate.  The Senate bill, which passed the Upper House, did add some extra money for local procurement, but fell far short of what was really needed.  The pathetic justifications offered by the agribusiness and shipping lobbies show just how weak their policy position is.

And now — maybe the House to the rescue.  The House? The current House?  You gotta be kidding, right?

Wrong.  The hero here is House International Relations Committee chair Ed Royce, a very conservative Republican from Orange County, who studied the way food aid rules work, and got outraged.  That’s hardly odd for a conservative, because farm policy represents about the clearest case of government waste we have.  It didn’t hurt, of course, that allowing for local procurement would also take much food aid from the Agriculture Committee and give it to the IR committee, but that really wasn’t what was happening here: this is an outrage and everyone who looks at it realizes it.

Originally, Royce teamed up with IR Global Affairs Subcommittee ranking member Karen Bass, a liberal African-American Democrat from Los Angeles, to introduce the Food Aid Reform Act, which would allow for local procurement as a general matter.  Before the House can vote on that, however, it needs to consider the Farm Bill, so Royce and IR Committee ranking member Eliot Engel (D – NY) have proposed an amendment to the House bill that essentially replicates the Food Aid Reform Act.  The House will consider that amendment as early as Wednesday.

Think about that for a second: “the House will consider that amendment as early as Wednesday.”  That says a lot.  Amendments don’t get considered on the floor of the House unless the Rules Committee allows them to be considered, and the Rules Committee doesn’t allow them to be considered unless it’s okay with the leadership.  That means that at least, there is substantial support in the Republican Conference for this measure.  GOP to the rescue!

Of course, they should support it.  Reforming food aid to allow for local procurement (as well as other crucial reforms) is such a no-brainer that it is perhaps the last genuinely bipartisan policy initiative out there.  Don’t believe me?  Even the Heritage Foundation favors this.  Does that make you as a liberal Democrat get nauseous?  Well, me too, sort of, but the same reforms are backed by the Center for American Progress.

So now — which is to say, right now, as soon as the business day starts in Washington DC — call your Congresscritter and ask them to support the Royce-Engel Amendment (#55) to the Farm Bill.  After the jump, I’m including the talking points prepared by the American Jewish World Service, which in conjunction with lots of other charities like Bread for the World, Oxfam, Catholic Relief Services, and many others, has spearheaded this campaign.  You should drop a dime for them, too, by the way.

But really: call. write.  E-mail.  This means life or death for people. Do it.

I’m writing, as a constituent and as a supporter of American Jewish World Service <http://www.ajws.org/&gt;, to urge you to vote YES on the Royce-Engel Amendment (#55) when it comes up during the Farm Bill debate this week.

The bi-partisan Royce-Engel Amendment (#55) to the Farm Bill would make significant and urgently needed reforms to our international food aid system by creating more flexibility and ending the practice of monetization, while also saving taxpayer dollars by eliminating wasteful spending.

While U.S. food aid saves millions of lives, we know all too well that the system is flawed. Current law requires that our government ship the majority of our food aid from the U.S., which means that it can take many months to reach people who need it. And since we buy almost none of the food from farmers in the countries we’re helping, our aid often undercuts local prices and even puts local farms out of business.

As you may recall, President Obama made recommendations in his 2014 budget proposal to address some of these challenges. The Royce-Engel Amendment essentially codifies the president’s proposal into law by allowing 45% of U.S. food aid to be in the form of local purchase, cash or vouchers. This flexibility would enable us to reach at least 4 million more people, with the same dollar amount, and would eliminate delivery delays of 3-4 months that are often the difference between life and death.

The amendment also ends the requirement that some portion of food aid be ‘monetized’ – a system through which in-kind food aid is donated to international development organizations, which in turn sell the food in local markets overseas to raise money for their development projects. Ending monetization creates the flexibility to use cash instead of commodities for important development projects financed through the food aid program.

A large coalition of groups support this amendment including AJWS, Oxfam, Bread for the World, Save the Children, CARE, Catholic Relief Services and many others. Think tanks across the ideological spectrum have also endorsed food aid reform, from the Heritage Foundation to the Center for American Progress.

I believe ending global hunger is a moral imperative and a fiscal priority. I urge you to vote YES on this amendment and to help make history on this issue.

This week, the Court issued a cryptic order dismissing the Pacific Rivers case as moot. But it’s the back-story that’s interesting–and troubling.

A bit of background: in 2012, the Ninth Circuit Court of Appeals issued its decision in Pacific Rivers, upholding environmentalists’ claims that the environmental impact statement prepared by the U.S. Forest Service in connection with its Sierra Nevada Forest Plan (encompassing 11 different U.S. forests within the Sierra Nevada range) was defective under the National Environmental Policy Act. As recounted in an earlier Legal Planet post, among the Ninth Circuit’s criticisms of the Forest Service’s EIS was that the document was replete with obfuscating and Orwellian language that undermined the EIS’s value as a source of environmental information for the interested public.

But the environmentalists’ victory was short-lived. Once the Supreme Court justices granted certiorari earlier this year, the environmentalists immediately had two strikes against them. First, the Supreme Court had thus granted review in a “pro-environmental” decision from the Ninth Circuit. Recent judicial history demonstrates that such Ninth Circuit rulings have a short shelf life: the Supreme Court already reversed two such Clean Water Act rulings from the Ninth Circuit earlier this year, continuing a strong trend of Supreme Court reversals of the Ninth Circuit in environmental cases over the past several years. Second, and as legal observers including Richard Lazarus have noted, environmentalists have never won a NEPA case in the Supreme Court–not one–over the entire 44-year history of that iconic environmental law.

So Pacific Rivers Council and its environmental allies could perhaps be forgiven for seeing the jurisprudential writing on the wall and (to mix metaphors) folding their hand. They reportedly “killed the case” by abandoning it and agreeing with the federal government to have the prior Ninth Circuit ruling in Pacific Rivers Council’s favor vacated and dismissed as moot. The goal, of course, was to avoid a broad, unfavorable NEPA ruling by the Supreme Court. With the justices’ agreement to dismiss the case, the environmentalists have achieved that objective.

But the dismissal in Pacific Rivers Council raises some difficult questions. First, one must wonder what the judges of the Ninth Circuit, who wrote what this observer believes was a thoughtful and well-reasoned decision, must think of the actions by Pacific Rivers Council to jettison that decision without so much as a defense on the merits before the Supreme Court? Second, and more broadly, have the results in environmental cases coming before the Supreme Court become so predictable that litigants will effectively confess error and abandon their defense of favorable lower court rulings if and when a case reaches the Supreme Court?

Troubling questions for troubling times…

Accept No Substitutes

I’ve posted before on the competing systems of forest certification, in particular the fight between the Forestry Stewardship Council (FSC), which is really the gold standard, and the Sustainable Forestry Initiative (SFI), an industry-driven effort that has substantially weaker standards and many have accused of greenwashing.  SFI has improved its standards in recent years, but often retreats into vagueness and opens up huge loopholes for environmentally destructive practices.

Now, the right wing has come to SFI’s aid, issuing a “study” that is bizarre on its face:

Sustainable forest management can come at a price.

That’s the finding of a recent study of the three major sustainable forest maintenance certifications. Researchers found that landowners who manage their woods in accordance with the certification standards could experience reduced economic returns.

The study [was] released by George Mason University’s EconoSTATS and Forisk Consulting today…

“There are significant economic costs in these cases that were examined,” said Wayne Winegarden, contributing editor to EconoSTATS.

The study found that implementing one certification program — the Forest Stewardship Council (FSC), most hailed by environmentalists — can lead to the lowest economic returns for landowners.

Researchers used a combination of simulated models and interviews with stakeholders to conclude that implementing FSC standards in Oregon could reduce profitability by 31 percent to 46 percent over 46 years. They compared program results in Oregon and Arkansas to simulate the forestry industry in both the Pacific Northwest and the South.

The researchers recommend that suppliers use products certified by the American Tree Farm System (ATFS) or the affiliated Sustainable Forestry Initiative (SFI) instead.

This is from Greenwire, and subscription is required.  More here.

I suppose that if a forestry corporation decides to ignore sustainability standards and the sorts of labor and community benefits practices that are part of FSC certification, then yes — it will have higher profits.  If, say, a company pays its workers good wages with benefits, then it will have lower profits than if it doesn’t.  If you chop down all the forests, then you could get higher returns, especially if you use a high discount rate.  And that tells us — exactly nothing.

But what this “study” actually demonstrates is how little these things cost, if the reporter, who appears to have been spun so hard that she doesn’t know her right from her left, has stated the conclusions correctly.  Let’s see: in 46 years, using FSC standards would reduce their profits by 46%?  That’s all?  FSC must be a really great deal!  It’s not clear what the “study” really means by 1% per year, but suppose that without certification, profits are 5%.  If you lose 1% of profits, that means that the profit is 4.95%.  Horrors!  (This isn’t precisely right because of compounding, but you get the idea).  So far, I have been unable to locate the “study” itself, and it would be interesting to see what the peer reviewers said, if in fact there are any.  (Or could this be another Reinhardt/Rogoff debacle?).

I also tried to find out a little about Wayne Winegarden, the “contributing editor” at EconoSTATS.  So I Googled him, and sure enough: the first thing that pops up is that he’s a columnist for the far right-wing website townhall.com, where his pieces comprise mostly of Tea Party-style agitprop.  Okay, so he’s a right-winger: in and of itself, that doesn’t necessarily mean that his model is bad.  But when someone’s theoretically scholarly work just so happens to conform perfectly to his ideological priors, then deep and profound suspicion is warranted.

This danger of ideological infection of results emerges with particular salience here because recently Winegarden has argued that FSC represents a “monopoly” that should be broken up by “competition.”  No one likes monopoly, but this fundamentally distorts the situation.  FSC isn’t “selling” anything.  It’s a certification organization.  The entire point of certifications is to give consumers information.  If you have a million different forms of certification, that destroys competition because consumers do not have a unified benchmark to compare — and if I were in a cynical mood, I would say that that is precisely what SFI wants.  Talking about “competition” and “monopoly” in this context reveals a distorted worldview that undermines the research –possibly fatally.

As far as I can tell, the “study” is not online  (UPDATE: found it, here).  I have not seen the peer review reports, if it has even been peer reviewed.  It could be perfectly legitimate.  But even taken at face value, it does not appear to be serious.  Instead, at this stage it appears to be something close to an op-ed written by a right-winger who wants to trash FSC and enhance SFI.  And it should be treated as such.  Despite another slick PR effort, SFI still cannot undermine FSC’s role as the most credible forest certification effort.

This is again what might be called a Kinshasa Situation, because it reminds me of Muhammed Ali’s famous taunt to George Foreman during the Rumble In The Jungle:  “Is that all you got, George?  Is that all you got?”  If this is all SFI has, then it deserves Foreman’s fate.  Of course, it’s got more money, so it might be able to avoid it.

UPDATE: As noted, I found the “study.”  So far, it’s not encouraging.  Basically, it concludes that since FSC will prevent more forest harvesting than SFI, then that means that FSC certification will lead to less harvesting and thus lower profits.  Well, yeah.  The report also concludes that both systems “advance responsible forest management activities in the US” but have no basis for concluding this.  That makes it look like an advertisement for SFI.  So far — and it is a tentative conclusion on my part — this does not look like a serious product.

The case involved a Virginia law that allowed state residents, but not non-residents, to make FOIA requests for state documents.  One issue was whether the law discriminated against interstate commerce.  Here’s what the Court had to say about that issue:

We have held that a State does not violate the dormant Commerce Clause when, having created a market through a state program, it “limits benefits generated by [that] state program to those who fund the state treasury and whom the State was created to serve.”  “Such policies, while perhaps ‘protectionist’ in a loose sense, reflect the essential and patently unobjectionable purpose of state government—to serve the citizens of the State.” [citations omitted]

This logic applies equally to cap-and-trade systems.  Emissions trading is the market for a product (emissions allowances) which the state has created, so it is free to limit participation in the market to in-state firms under the reasoning of McBurney. The same reasoning seems to apply to offset credits.

Of course, language in a single Supreme Court case isn’t necessarily decisive, since future cases have to be considered in light of other existing precedents, and differences in facts matter too.  But McBurney is definitely a helpful precedent for defending cap and trade.

What about renewable portfolio standards that give credit only for locally generated power?  This is a trickier question.  To the extent states restrict trading between utilities in renewable energy credits once they’re created, McBurney seems to apply.  But more serious problem involves restrictions on how those credits are generated by purchasing power for renewable sources.  Some state plans might be considered discriminatory because they in effect exclude out-of-state renewables.  McBurney may or may not be helpful here.

Although you could view renewable portfolio credits as a market created by the state, the state doesn’t create the interstate electricity market. There’s some other language in McBurney, however, that might help the state in defending the restriction to in-state generators:

The ‘common thread’ among those cases in which the Court has found a dormant Commerce Clause violation is that ‘the State interfered with the natural functioning of the interstate market either through prohibition or through burdensome regulation.’

If we consider the “natural functioning of the interstate market” to be the electricity market’s functioning without the state’s renewable portfolio standard, it’s not clear that out-of-state renewable providers would even be participating in the state’s naturally functioning electricity market. So unless they can show that the state’s program deprives them of sales they would make in the absence of the renewable portfolio standard, McBurney suggests that they wouldn’t have a discrimination claim. But it’s not clear whether a court would accept this argument. A judge might consider the argument just too subtle to worry about, in the face of the common sense point that in-state renewables are being treated more favorably than out-of-state renewables.  On balance, McBurney seems to help the state in this situation, but it’s not clear how much.

UCLA is releasing today the first-ever detailed study of the effects of climate change on local snowfall, examining both business-as-usual and mitigation emission scenarios.  Snow loss is predicted to be very significant both in the mid-term (2041-2060) and by the end of the century.  The image above shows the study’s projections for reduced end-of-century snowfall under a business-as-usual emission scenario.  Details on the study are available at the C-ChangeLA website, a great portal designed by Climate Resolve to disseminate this work to the public.

This is the latest in a groundbreaking series of papers by UCLA’s Dr. Alex Hall, who has been funded in part by the City of LA to create downscaled climate models predicting impacts to LA at a neighborhood scale.  His work on temperatures in LA was reviewed by Sean here and showed (among other things) that some LA communities will see triple the number of extreme heat days by the end of the century.  Notably, Dr. Hall’s snowfall study here doesn’t account for increased snowmelt from higher temps, so these results understate impacts to total snowpack.    

 It’s easy to think that snow is great for skiers and sledders but not so meaningful for everyone else.  Our snowpack, however, provides an important source of surface water, especially in drier months.  The good news from this study is that mitigation makes a difference. Cutting greenhouse gases significantly curbs snowfall loss by the end of the century:

Which brings us to today’s 9-0 loss for the Port of Los Angeles. Its groundbreaking Clean Trucks Program was put in place about five years ago to reduce diesel pollution harms to local communities from the many short-haul trucks serving the Port. The program requires a suite of measures including truck maintenance requirements, financial capacity requirements, and (at issue here) requirements to submit off-street parking plans and to put placards on trucks with a phone number for reporting environmental or safety concerns. The program was challenged by the American Trucking Association, upheld by the Ninth Circuit, and taken up earlier this year by the Court. The Port was joined by NRDC, the Sierra Club, and the Coalition for Clean Air in defending the program.

In an opinion by Justice Kagan, the Court unanimously agreed that two provisions of the program — the off-street parking plan requirement and the placard requirement — are unlawful because preempted by the Federal Aviation Administration Authorization Act, which prohibits localities from imposing service requirements with “the force and effect of law” on motor carriers such as these trucks. A central issue in the case (and one on which the Ninth Circuit sided with the Port) was whether the Port’s requirements were merely contractual, the purview of any market participant, or regulatory and therefore embodying the force and effect of law. The Court concluded that the Port’s requirements do, in fact, have the force of law because the Port’s contracts with truckers “do not stand alone” but, instead, “function as part and parcel of a governmental program” created by ordinance and imposing criminal law penalties for violations. Because “the Port chose a tool to fulfill [its] goals which only a government can wield: the hammer of the criminal law,” this was an exercise of “classic regulatory authority” and therefore preempted by the FAAA.

The Port lost these battles, but it did pretty well in the war. Its Clean Trucks Program lives on, and the (arguably more important) provisions for truck maintenance and financial capacity are safe and remain in effect. And the Court’s 9-0 decision avoided two considerably worse outcomes from an environmental perspective. First, the Court declined to hold, as ATA had argued, that the Port should be prohibited from enforcing any of the provisions of its Clean Trucks Program because of an argument that such enforcement would conflict with federal law on interstate licences for motor carriers. If the Court had decided, instead, to take up this argument and to hold against the Port, its program could have been effectively gutted.

Second, the Court affirmed its basic agreement with the notion of a “market participant” exception to FAAA preemption. It said nothing to foreclose the future use of that exception by other localities, or even by the Port itself, so long as more care is taken not to intertwine contracts with traditional regulatory enforcement authority.

All in all, a good loss.

Judge Posner’s throw-away comment about the Commerce Clause was not based on a close examination of Michigan’s law. As Ann points out, the Michigan law was not even challenged in the case. Had he looked at the law, Posner would have discovered that it does not contain a blanket restriction on out-of-state renewables. Out-of-state renewables qualify for the program if they are within the service territory of a utility that also serves Michigan. Any meaningful review of the constitutionality of this provision would have to include consideration of the purpose for ensuring that the renewable power would be close at-hand.

There are valid reasons for looking at the physical relationship of the renewable power to the state’s grid – this is not all about protectionism. If the utility purchasing the renewable output cannot take delivery of that power for the benefit of its customers, it will have to acquire additional power that can be delivered. Logically, that other power will not be renewable, since otherwise, it would be used to comply with the clean energy standard. In Michigan, that other power may very well come from a coal-fired generating facility. It is true that the undelivered power may displace some form of generation in its state of origin, but it would be impractical to keep track of its effects in all instances. Suppose that the neighboring state burns natural gas on the margin. In that circumstance, the renewable power might displace natural gas, rather than coal, and the net reduction in greenhouse gas emissions would be cut in half. In addition, rather than reducing local air emissions, water pollution and water use from the coal plant in Michigan, the renewables would reduce local emissions in another state. Michigan has a legitimate interest in reducing its local pollution. Maybe the effects of relying on undelivered power in a given instance might be different. The point is that as one moves further away from the utilities and their service territories, the net effects become less certain. In addition, there are other legitimate local interests, such as fuel diversity and system reliability.

Further, Posner’s throw-away assumption about constitutionality might make his decision reversible. Regardless of how he feels about the Michigan law, it is still in effect. By dwelling on his unstudied opinion about constitutionality, he has failed to resolve Michigan’s initial argument. The question before the court went to the impact that the law might have on the appropriate allocation of transmission line costs. Posner never addressed that.

Under all of these circumstances, it is hard to imagine that Posner’s statement will have much of an impact on the viability of various states’ renewable energy laws.

The version of standard setting the Senate passed is much more narrowly drawn:  First, it only applies to “infill” projects that are close to major transit centers.  Second, it only applies to traffic, noise, and parking impacts of those projects.  Third, the standards would be set by the Office of Planning and Research, which has traditionally done CEQA guidance, rather than the regulatory agencies.  Fourth, it doesn’t prevent local governments from setting stricter standards that might require more CEQA review.  Finally, the bill would completely eliminate consideration of aesthetic impacts for infill projects.

I have some mixed feelings about these changes.  On the one hand, I’ve expressed concern before about creating special passes for certain kinds of projects – concern that it may eventually lead to the gutting of CEQA as a whole.  On the other hand, I’ve never been a big fan of how large a role traffic, noise, parking, or aesthetic impacts play in CEQA.  These are often the claims that are most susceptible to abuse by project opponents, and generally it’s not clear to me that consideration of these impacts leads to better environmental outcomes.  (e.g., one solution to traffic impacts is to build more roads!)  They certainly seem to me to be less important than pollution or natural resource impacts that should be at the heart of CEQA review.  In fact, I could be persuaded to take a much more drastic approach to scale back consideration of these impacts in CEQA.

But that might create a political problem.  It’s also plausible to me that, for the average voter, it is the traffic, noise, parking, or aesthetic impacts that matter most to them about whether a local project is built or not. If CEQA can’t help in assessment and consideration of those impacts, and instead only addresses pollution or natural resource impacts, it’s possible the average voter might think that CEQA isn’t that useful, and the (generally strong) political support for the Act might wane.

So perhaps the Senate bill revisions are a useful compromise.  Though I am concerned that we’ll see still more push for CEQA “reform” in the future, with much more problematic versions of standard setting that apply to a wider range of resources.  The current bill disclaims any intent by the legislature to do that, but of course a future legislature can do whatever it wants….