“it wasn’t as if those running the Texas energy system’s various fiefdoms—the grid, the power plants, the natural gas–production facilities—hadn’t been warned about the dangers of severe weather. Hell may not freeze over, but history suggests that Texas’s energy system does—and with some frequency. In 1989, in 2003, and in 2011, the state experienced, to varying degrees, simultaneous shutdowns of power plants and parts of its natural gas–producing infrastructure, as significant swaths of both of those critical systems were incapacitated by arctic temperatures, triggering blackouts.
The frigid weather during the first four days of February 2011 knocked off enough power generation throughout ERCOT—about 29,000 megawatts of capacity—that ERCOT initiated blackouts affecting about 3.2 million customers, according to a voluminous postmortem of the failure produced in August 2011 by the Federal Energy Regulatory Commission and the North American Electric Reliability Corp. That report suggested the state add teeth to its effort to gird its energy infrastructure for wintry weather. Among its policy recommendations was that in states in the Southwest, including Texas, legislatures require power companies to submit winterization plans and give their public-utility commissions the authority to require senior executives of power companies to sign off on those plans and the authority “to impose penalties for non-compliance.” Magness, the ERCOT chief, said that in the wake of the 2011 report he and others met with Texas power generators to suggest that they better winterize their facilities. He was asking, not telling. “It wasn’t a conversation like, `I’m your regulator and you have to do this,’” he recalled. “It was sharing those best practices.””
“Under the deregulation scheme passed by the Legislature more than two decades ago, Texas has a market design that allows generators to make money only by selling juice—not for investing in equipment that could help produce extra power in the event of an emergency. Critics contend that this approach, part and parcel of Texas’s aversion to regulation, makes the state’s energy system less reliable, even as it boosts profits for some market participants. Based on their biographies on the ERCOT website, at least eleven of the fifteen ERCOT board members have current or prior ties to the energy industry.”
“Texas lawmakers, as they investigate what went wrong this past week, ought to explore weatherization mandates.”
“better weatherizing power infrastructure, like inducing electricity producers to invest in extra generating capacity, likely would raise Texans’s electricity rates. “Is it worth the cost to consumers?” he asked. I asked him if ERCOT had any answer to that question. “I am not aware,” he said, “that we have ever conducted a real cost-benefit analysis on that topic.””
“the electricity blackout and frozen pipes in Texas had significantly curtailed the state’s production of oil and natural gas. IHS estimated that nearly 20 percent of natural-gas production, and perhaps an equal or greater percentage of oil production, in the continental U.S. in the first half of February had been shut in—and that the Permian Basin, the big oil-producing region that sits largely in West Texas, accounted for the biggest share of that production drop.
A couple of hours later, the governor, who earlier in the week had called for top ERCOT leaders to resign, issued an announcement. Years after Texas officials had been advised to do so, Abbott said he would ask the Legislature to mandate the winterization of power plants across the state—and to “ensure the necessary funding” for it.”
“The guiding light of the Trump administration’s deregulatory efforts was Executive Order 13771. That 2017 order instituted the famous rule that regulators issue two deregulatory actions for every new regulatory action. It also created a system of accounting for the costs of new regulations and the cost savings of deregulatory actions. This was used to give federal departments regulatory budgets that limited the costs of new regulations they could impose, and often required them to find regulatory savings.
Using this measurement of regulatory savings, the Trump administration has been modestly successful at its goal of deregulating the economy, claiming $198 billion in eliminated regulatory costs. From fiscal years 2017–2019, the administration claims to have eliminated 3.6 rules for every new rule added. That ratio is 3.2 for fiscal year 2020.
Using other measurements, the Trump administration has been less successful. In some areas, they’ve done more to slow the growth of the administrative state without significantly reducing it. The length of the Code of Federal Regulations stayed essentially flat during Trump’s time in office, hovering at around 185,000 pages. The Mercatus Center’s tracker of restrictive words in the federal regulatory code comes to a similar result, finding that these words grew from 1.08 million at the beginning of Trump’s term to 1.09 million as of January 1, 2021.
Trump “leaves us with fewer regulations than Hillary Clinton would have—though not many fewer regulations than we had before,” summarizes Robert Verbruggen in a November National Review article.
One can expect this limited progress to be more than reversed under the new administration. Biden has already announced plans to reinstate Obama-era regulations that were pared back by the Trump administration.”
“The new regulations require utilities to clean up contaminants if they are found at high enough levels beyond the boundaries of their plant sites. By extending those boundaries through land purchases, Georgia Power could push back the day it has to deal with its legacy of pollution”
“Georgia Power spokesperson John Kraft said in a recent statement that the purchased properties were intended for use as a construction buffer while the company closes its unlined ponds, a lengthy process that includes pumping water out of the disposal site and burying the remaining coal ash in place. He did not respond to direct questions about whether the purchased land would help the company delay cleanup costs.
He noted that the company, a subsidiary of the Southern Company, the nation’s second-largest energy provider, has hired experts to monitor test wells positioned around the ash ponds for signs of groundwater contamination. Based on the results of those tests, he added, the company “has identified no impact to drinking water.””
“On Dec. 22, 2008, more than a billion gallons of a toxic slurry of coal ash and water breached a dike at the Tennessee Valley Authority’s Kingston Fossil Plant about 40 miles west of Knoxville. The wave — roughly five times the volume of liquid spilled by the Deepwater Horizon disaster in the Gulf of Mexico two years later — tore up railways, toppled power lines, knocked a home off its foundation and caked the Emory River in a thick, gray sludge.”
“Utilities produce over 100 million tons of coal ash annually, according to the EPA, making it the nation’s second-largest source of industrial waste after household garbage.
Coal ash is the fine residue left when coal is burned to produce power. The ash contains contaminants associated with long-term health risks, including damage to the kidney (from mercury), stomach (from boron) and nervous system (from arsenic). To dispose of it, utilities can either transport the waste to a landfill with a protective liner on the bottom or mix it with water in an ash pond without a layer underneath.”
“As of October 1, a new law in Louisiana bans grocery stores from calling veggie burgers “veggie burgers,” as well as many similar product labels like “plant-based sausages” or “seitan-based vegan bacon.”
The justification? That consumers might get confused about whether veggie burgers are made of beef. It’s the latest of a series of attempts by meat companies to ban their plant-based competitors from grocery store shelves — and many legal experts say it’s probably unconstitutional.”
“Last year, Arkansas tried a nearly identical law, and Tofurky sued. A judge issued an injunction a few months later, finding that the law violated the free-speech protections of the US Constitution and telling Arkansas it may not enforce the law while the case proceeds through the courts. Mississippi tried a similar law, too, and backed down, promising to revise it, when sued. That didn’t stop Louisiana from proceeding with its own, nearly identical law, but it is likely no more constitutional than the Arkansas or Mississippi ones.
Why are we fighting about Tofurky? There are no indications that consumers are confused about whether veggie burgers are made out of meat. But as plant-based products get more popular, these labeling laws are one of the meat industry’s favorite tools to fight back — even though courts keep on soundly rejecting them.”
“The First Amendment can be applied to commercial speech — though the law is a bit complicated. In the 1940s, the Supreme Court ruled unanimously that there were no First Amendment protections for purely commercial speech. By the 1970s, the Court had reconsidered that and overturned it in 1976.
In 1980, the Court supplied the rules for First Amendment protections on commercial speech that are still applied today. Those rules are called the “Central Hudson” test because they were laid out in Central Hudson Gas and Electric Corp. v. Public Service Commission.
Here are the rules: First, commercial speech “must concern lawful activity and not be misleading.” Supporters of Louisiana’s law might argue that the term “almond milk” is misleading, while opponents argue that consumers know perfectly well what almond milk is — that, as Utah Sen. Mike Lee (R-UT) put it, “No one buys almond milk under the false illusion that it came from a cow. They buy almond milk because it didn’t come from a cow.”
“There’s nothing misleading about the name of a veggie burger, or vegan hot dog, or seitan bacon,” Jessica Almy, an attorney and director of policy at the Good Food Institute, told me when we spoke about a similar Missouri case. “The packages clearly disclose that this is plant-based food that has the taste or texture of this familiar food.”
“There is not one consumer complaint to the AG’s office ever filed,” Amanda Howell, co-counsel on the Louisiana case, told me. “All plant-based products I’ve seen are doing their best to make sure consumers know that they’re plant-based.”
Even if the speech concerns lawful activity and is not misleading, the government can still regulate it. But it has to meet the following standards: The government must have a “substantial interest” at stake, the regulation must “directly and materially advance the government’s substantial interest,” and “the regulation must be narrowly tailored.””
“Take controlled burns: fires that are lit on purpose, intentionally burning tinder to keep potentially larger, unintentional wildfires from finding fuel. Especially since the 1960s, efforts to extinguish all fires—even natural, low-impact forest fires that serve as nature’s equivalent of a controlled burn—have made forests more susceptible to larger fires and have made controlled burns more and more necessary.
But the regulatory requirements one must meet before starting a controlled burn are complex and lengthy. According to Jonathan Wood, an attorney with the Pacific Legal Foundation and an adjunct fellow with the Property and Environment Research Center, the National Environmental Policy Act requires “a couple-thousand-page document analyzing every single conceivable impact to the environment that the plan might have.” This is a public process, Wood adds, that “often results in litigation.” There’s even more paperwork when the controlled burn might overlap with areas designated as critical habitat for an endangered species.
“What you’ll often find,” Wood says, “is that there are projects which have been extremely well-vetted, which have been years in the work, there will be a 5,000-page document, which no one could conceivably ever read because it’s so long and complicated, but then the project will still get put on hold for an indefinite period of time, because some special interest group filed a lawsuit.” So much time is spent considering the ramifications of an action; little is spent considering the impact of doing nothing.”
“The Clean Air Act of 1990 creates another obstacle. The law treat the smoke from a controlled, prescribed burn as a pollutant that must be analyzed and permitted before the burn can be done. The smoke from a wildfire is not similarly scrutinized. But needless to say, the environmental impact of a multi-state wildfire is much larger than that of a smaller controlled burn.
There is no magic bullet when it comes to the issue of preventing wildfires. But if we want to stop disasters of the scale, state and federal governments need to rethink forest management. They could start by easing the regulatory burden upon proven techniques.”
“Medical professionals are typically licensed on a state-by-state basis, so a doctor licensed in one state can’t practice in another without receiving an additional license. The patchwork of licensing requirements across states is a major obstacle to the use of telemedicine because physicians are generally only permitted to provide telemedicine services to patients in states where they are licensed.
States are recognizing the cost of these onerous regulations in light of the current crisis. Over the past few weeks, governors and medical boards in every state except for Alaska, Arkansas, and Minnesota have temporarily suspended their licensing rules to allow out-of-state physicians to work in their state. Most of them have also waived restrictions on the use of telemedicine across state lines.”
“Some states are in greater need of physicians than others. On average, there are roughly 263 physicians per 100,000 people in the United States. But in Massachusetts, there are 449 physicians compared to just 191 in Mississippi. Moreover, the number of COVID-19 cases is expected to peak at different times in each state, so the peak demand for health care providers will vary. Allowing physicians to practice across state lines grants them flexibility to help where they are needed most.”
“Beyond the current crisis, telemedicine has the potential to connect patients with specialists across the country. Telemedicine may also reduce inefficiencies that result from schedule gaps, unexpected appointment cancellations, and the uneven geographic distribution of physicians.
A growing, aging population is expected to generate a national shortage of nearly 220,000 physicians by 2032. As with the current distribution of physicians, shortages will not be evenly distributed across states. Regional projections from the Department of Health and Human Services (HHS) indicate that the Southeast will have a shortage of approximately 13,860 primary care physicians as early as 2025, while the Northeast will have a surplus of around 810 physicians. Telemedicine offers a solution, but states will need to reform their licensing laws for the technology to reach its full potential.”
“America is suffering from a shortage of almost everything it needs to combat the spread of COVID-19. Hospital beds, ventilators, gloves, and gowns are all in short supply.
That’s particularly true of the N95 masks that help medical professionals avoid catching and spreading the virus as they tend to patients. The N95 designation refers to the ability of these masks to filter out 95 percent of airborne particles.
In early March, the U.S. Department of Health and Human Services (HHS) said that the country’s stockpile of N95 masks was enough to meet about 1 percent of the three billion masks we would need during a true pandemic.”
“government regulations are stifling the ability of manufacturers to set up new N95 mask production facilities—handicapping the private sector’s ability to respond to the current crisis.”
“The production of N95 masks is regulated by the CDC’s National Institute for Occupational Safety and Health (NIOSH). Prospective makers of N95 masks must submit detailed written applications to NOISH, and send finished products to its Personal Protective Technology Laboratory for testing. NIOSH staff must also personally inspect new manufacturing sites before they’re allowed to start pumping out masks.
Chisholm says regulators have told the Open PPE Project that getting agency approval could take anywhere from 45 to 90 days.”
“3M, one of the largest makers of N95 masks, says that it is producing 35 million respirators per month in the U.S. and that within 12 months it plans to double global production capacity to 2 billion masks a year. It also says it is exploring coalitions with other companies to expand mask production further.
Honeywell, another major mask manufacturer, claims it has more than doubled its mask production, according to The New York Times.
That’s a lot of masks, but nowhere near enough to meet the current demands of the country’s medical sector, let alone the demands of other essential workers and volunteers who are out in public right now, potentially dealing with sick people.”
“The single most important failure of the U.S. response to COVID-19, the disease caused by the novel coronavirus, has been the slow rollout of testing. This was an abject failure of bureaucracy. But it was also a failure of presidential leadership.
The countries that have had the most success in containing the outbreak, such as South Korea and Singapore, have done so through early, rapid, and widespread testing and contact tracing, followed by targeted quarantines. South Korea and the United States discovered initial cases of the coronavirus on the same day in January. Since then, some 290,000 people in South Korea have been tested and new daily cases have fallen from 909 to just 93. Despite a much larger population, the United States, tested just 60,000 people in the same period of time.”
“Much of the failure to make mass testing available lies with the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA). As a Wall Street Journal report makes clear, the CDC, which managed the development of the initial test kits, botched the job in just about every possible way: The CDC not only produced a faulty test that had to be retracted but adopted narrow testing criteria that meant many people with symptoms simply couldn’t be tested.
Perhaps most disastrously, as The Washington Post reports, federal health agencies initially declined to certify tests produced by private companies that were better suited for rapid mass testing anyway. This is despite the fact that experts, including the former head of the FDA, were publicly recommending that they do so as early as February 2.
The CDC was following its usual protocols, developing initial diagnostic tests on its own in order to maintain quality control, as it usually does. But that’s exactly the problem.”
“But this was also a failure of political leadership, most notably from President Donald Trump. For weeks, Trump and senior White House officials actively downplayed the threat of the virus.
As late as February 25, National Economic Council adviser Larry Kudlow was offering assurances that the coronavirus was “contained” and that it was “pretty close to airtight.” Trump treated the virus with similar breeziness, suggesting that the virus was “going to disappear” and that while it might get worse, “nobody really knows.””
“The problem here is obvious: Trump, who as the head of the executive branch oversees federal agencies such as the FDA, did not view the virus as a serious problem—and did not want others to view it that way either. That, in turn, translated into a downstream lack of urgency, which meant that critical aspects of the response were not prioritized. According to The Wall Street Journal, health officials who have examined the testing calamity have concluded that it was a result of both bureaucratic bumbling and a “broader failure of imagination,” in which Trump and other administration officials “appeared unable or unwilling to envision a crisis of the scale that has now emerged.”
The job of a president is to make decisions, set priorities, and convey clear information to both the public and the staff of the executive branch. This is especially important in a moment of crisis, when the executive is in charge of acting both quickly and with sound judgment. In this outbreak, Trump has failed on every count. Not only did he fail to see the threat even when it was apparent to experts, but he actively undermined preparedness by downplaying its significance far long after the problem was apparent, and by providing false and misleading information as the mitigation effort proceeded.”
“The federal health bureaucracy deserves much of the blame for America’s faltering response to the coronavirus outbreak. But the president has made the fiasco worse.
The bureaucracy reports up to an executive, who is tasked with setting priorities and ensuring performance—and for taking responsibility when there are failures. Instead, Trump has inaccurately blamed the Obama administration for failures that occurred on Trump’s watch. (Indeed, under Barack Obama, diagnostic tests for swine flu were designed and approved in less than two weeks.) Asked whether any of this is his fault, the president rejected the idea, saying, “I don’t take responsibility at all.” Trump’s refusal to admit failures makes it more likely that he will repeat them, and that more Americans will pay the price.”