The reason king coal is no longer a jolly old soul is the operation of the market—not the play of politics. — j. b. stronberg, esq.
 
The Current Status of West Virginia v EPA  

By the time this column is published, oral arguments in the legal challenge to the Clean Power Plan (CPP/Plan) will have already been made.  The en banc panel of 10 appeals court judges is not likely to render its decision before the New Year.  No matter the opinion, it will be appealed to the U.S. Supreme Court (SCOTUS).
 
In the latest development, the case was heard by all but one of the Appeals Court jurists. It was initially announced that both Judges Pillard and Garland would be sitting this one out.  Garland because of his nomination to fill the slot left vacant by Justice Scalia’s passing.

Five days ago, however, notice was sent to the parties that Judge Pillard would be joining the panel hearing oral arguments.  She had not participated in the May decision bypassing the usual three-judge panel, instead going to an en banc review.  It was assumed, therefore, that she would be keeping Garland company off the bench. 

No reason was given either for why Pillard had not participated in the May decision or why she would now be joining the parliament of judges.  The absence of an explanation as to Judge Pillard’s presence on the panel is a matter of speculation. 

The more conspiratorial amongst us believe her late entry into the game is a matter of politics.  The ten judges who heard the case on Tuesday are now  split—four Republican appointees and six Democratic. 

Does it matter whether a judge’s appointment was made by a Democrat or Republican?  I’ll leave that to another time.  It should be noted, however, that   accusations of political bias are now certain to swirl around both the Appeals Court decision and the eventual SCOTUS opinion. 

The high court  is currently facing a 4 to 4 split as regards the party of appointment and judicial outlook—Democrat/Republican and liberal/conservative.  Either Clinton or Trump break the tie with Scalia’s successor. 

A President Trump will undoubtedly rescind the executive directive that is the basis of EPA’s action.   What is more, it is one of those things that he could actually accomplish in his first 100 daze.  Should the Donald win the White House, justice will not just be delayed; it will be destroyed!
In the meantime, let’s consider what the states are doing in light of stayed enforcement of the CPP—pending a final decision.
 
With or Without the CPP

A total of 21 states are currently on pace to meet the 2030 CPP targets established by EPA.   In fact, at least four states have already met their goals, including: Arkansas; North Carolina; Oklahoma; and South Dakota.  (See Figure 1)

Another 17 will likely meet their goals between 2024 and 2030—including plaintiff states like:  Alabama; Georgia; Kansas; Nebraska; and Mississippi.  Perhaps the biggest irony of all is Texas.  The Lone Star State is not only one of the most outspoken critics of the CPP but is one of the most prolific plaintiffs challenging the authorities of EPA.

Gina McCarthy recently confirmed in a Reuters interview that:
We are seeing reductions earlier than we ever expected…It’s a great sign that the market has already shifted and people are invested in the newer technologies, even while we are in litigation.

Figure 1: Status of States Meeting CPP Emission Targets

Source: Reuters/Christian Science Monitor
 
McCarthy is not alone in her judging market forces to be on the side of emission cuts.  During a Sept. 14 press event, Jim Matheson, CEO of the National Rural Electric Cooperative Association (NRECA), told reporters:
 
There's a lot of market forces that have changed the dynamic…low natural gas prices and cheap renewable power as factors driving GHG cuts even before the 2022 start of the ESPS compliance period. (As reported by InsideEPA)
 
Market pricing of natural gas, plummeting prices for wind and solar, state policies like Renewable Portfolio Standards, federal tax incentives and greater awareness and demand by constituents and consumers for clean energy alternatives are all driving the market towards lower emissions.
 
Trump is wrong about what is killing the coal industry.  The reason king coal is no longer a jolly old soul is the operation of the market.  Granted environmental regulation and tax credits create a friendlier market for clean alternatives; these measures, however, aren’t propping up the clean energy industry as much as they are providing parity with crappy coal.
 
Politics at Play
 
With all the Sturm und Drang surrounding the CPP, you would be forgiven for thinking the Plan marked an historic departure from what is already happening.  Most of the complaining really stems from political and corporate sources opposed in principle to regulation, unwillingness to be held accountable for their carbon footprints or pure political gain. 
Rather than taking my word for it, let the plaintiffs speak for themselves:
 
Cynthia Coffman, Colorado Attorney General:  We don’t have anything against clean air.  That really doesn’t factor into [my] decision to say the federal government has gone beyond its authority.
 
Chris Nelson, Chair of the South Dakota PUC:  The CPP is very dramatic in the speed at which it would require things to happen….If you let the market play out, those things take care of themselves.
 
Patrick Morissey, West Virginia Attorney General:  When I ran for office, I promised I would do everything in my power to protect coal miners’ jobs….I have followed through on that promise.
 
The attorneys general and public service chairs of the various plaintiff states      are far from alone in their effort to forestall federal environmental action.
Political opposition to the CPP has not been quieted pending the final decision    in the West Virginia case nor will it evaporate after.  
 
Efforts by conservative organizations like the American Legislative Exchange Council (ALEC), the American Energy Alliance (AEA), and the State Policy Network (SPN) are increasingly being reported.  With the support of the Koch Brothers and conservative financiers, 50 or more pieces of legislation to forestall or prevent drafting state plan—-in anticipation of the CPP—have been introduced.
 
Should Clinton win, opposition to the CPP will continue on two fronts:  judicial and political.  Conservative activists like the Koch brothers and corporate interest will continue to finance state legislation limiting—or curtailing completely—a deliberate move to a clean energy future. 
 
A Final Thought

The judicial seeds for the next round of judicial review have already been sown.  The same basic cast of characters has already filed claims challenging the EPA’s 111(b) authorities.  Hiding in the bushes is the Clean Air Act’s requirement that new source pollution standards (NSPS) must be in place before the 111(d) existing source standards (ESPS) can take effect.  Also lurking about is a clerical error that never resolved a conflict between sections 112 and 111(b) of the Act.

Will these procedural errors be the next shoes to drop—delaying even further an enforceable federal framework in support of a sustainable future?
​
Stay tuned for the next in the Justice Delayed series when I will be discussing the relationship between environmental and legal justice.

​TRUMP THE DAY AFTER: GOD SAVE AMERICA

The Republican Party is officially an Emperor with no clothes.  How do I know this?  I saw its ass hanging out on the Monday night debate. 
I don’t know whether Trump is as he appears.  His apologists say “not.”  Kelly Conway claims he doesn’t lie because he doesn’t know
the truth.  Governor Pence, in his earnest, toady manner, sights a decency not apparent to the naked eye. 

Whether Donald doesn’t really see or simply chooses not to, makes no real difference.  Neither blindness nor self-delusion are
traits we should want in our President, let alone the presumptive leader of the free world.

What must he do to shake support?  Party patricians, who swore
they would #never Trump just weeks ago, are now defenders apologizing on behalf of a candidate clearly unqualified to be
President and unqualifiedly a disaster waiting to happen. 

The mic was not the only bum on the podium Monday night.  His rants about others and raves about himself would have been
embarrassing to most people the morning after.  Not to Donald—denial and double-down are his middle names. 

This entire election eludes me.  The quality of candidates—and in this group I include Johnson and Stein—the willingness of
supporters and surrogates alike to mansplain away the deficiencies and demeanor of the standard bearers is simply inexplicable. 
Is the desire for change so strong?  Are we, as a nation, so unhappy about our situation, so hopeless about our plight, so
unwilling to do something positive, so frightened to tell the emperor he is wearing no clothes that we are willing to commit
societal suicide?  Is Donald D.D. Trump another Jim Jones?  Is America another Johnstown, only on a grander scale?

No matter who emerges the winner in November, we the people will be the losers.  The seeds of continued division and
dissension are sprouting; I fear they will bloom ingloriously before the nation has the opportunity to pull this weed
masquerading as a flower.  All I can say is “God save America.”

Photo: http://hollywoodlife.com/

“Lyin’ Ted”
​It’s official—Ted Cruz is a putz!
​
I imagine that no one feels worse the day after Hempstead than the Texas Senator.  Senator, you held out, held out and
then…caved endorsing the man you called a sniveling coward.  The man who insulted your wife and accused your
father Oswald’s accomplice. 

The man you said was more Democratic than Hillary Clinton.  Your BFF, Senator Lee   (R-UT) wouldn’t endorse him--even
after being offered nomination to the Supreme Court.

The lesser of two evils, you said.  Can a matter of conscience be unconscionable?  I guess it can.

You crashed in Cleveland and now, for some reason, you believe in divine intervention and redemption in September.  It doesn’t
work that way, Senator.  God will forgive you your earlier transgressions, Donald and his troop will not.

You were better off standing on principle, than claiming conscience and conversion.  Few found your rumblings at the Republican
convention other than rude.  Granted I don’t like the nominee, but even I wouldn’t accept his invitation and then proceed to trash
him at his own party--before his supporters and millions of viewers.  That’s just plain rude.  My mother taught me better than that. 
I’m sure your mother taught you as well.

You didn’t fool anyone in Cleveland and you’re not fooling anyone now.  All you’ve managed to accomplish by flipping and flopping
is to turn yourself from a rude but principled opponent to Donald’s be..yotch.  I don’t think that’s the type of change agent you saw
yourself to be.  The kettle is hungry and you are the entree. 

Your new BFF flamed on Monday—he may yet win in November—but you won’t.  The odds of your cruzing to victory in the
2018 senate race have just flipped—or is it flopped--in any opponent’s favor.  Having lost standing in the conservative community
will make your run for the roses in 2020 orders of magnitude more difficult.  Stupid and rude may be forgiven.  Treason will not. 
You will be forever known as Trump’s chump.  

Well, I guess some good has come from your endorsement after all.

Photo:  www.forwardprogressives.com    

Those who cannot remember the past are condemned to repeat it.
 
                                                              -George Santayana
 
A Bit of History
 
Political wrangling in the U.S. has traditionally been a two party affair.  Whether by design or happenstance, American voters have repeatedly stood in one of two lines.  In 1792, mainstream politicians bivouacked either with the Federalists or Democratic-Republicans, while today they camp with either Republicans or Democrats.
 
Party labels have changed; the issues dividing and defining them not so much.  The Federalists of 1792 favored a strong central government, while the Democratic-Republicans—under the leadership of Jefferson and Madison—sought a looser federation of stronger states.
 
From 1896 to 1932, sometimes called the Progressive Era, Republicans (Progressives) fought the Democrats over such issues as government regulation of large corporate trusts, protective tariffs, the role of labor unions, banking operations, primary election rules, racial segregation, women’s rights and immigration.  Sound familiar?
 
Changing labels has mostly resulted in realignments within a party, rarely actual division.  The breakaway Progressive (Bull Moose) Party in 1912—led by T. Roosevelt—stands as a notable exception.  Roosevelt’s third party run for a third term cost Taft and the Republicans the White House.  For the Bull Moose(s), with defeat came demise.
 
Today’s Republican Party traces its roots to 1854—coming into a sort of permanent prominence with Lincoln’s election in 1860.  The Democratic Party was born in 1828, when the Democratic-Republicans actually split into the two mainstream opposing parties of (Jacksonian) Democrats and Whigs.
 
Two party dominance has never meant two party exclusivity.  Well over 80 political parties have raised their banners since the beginning of the Union. Today there are five parties with dogs in the fight for the presidency. (See Table below)
 
 


 




Source: https://en.wikipedia.org/wiki/List_of_political_parties_in_the_United_States
 
 Have Third Parties Ever Mattered?
 
The presence of third parties over the 225 years of presidential politics has rarely made much difference.  There have been exceptions.  The Progressive Party of 1912 garnered enough votes to lose the election for the sitting Republican president, William Howard Taft.
 
Four candidates competed for the White House that year.  Wilson the Democrat won 6.3 million votes (42%) of the total ballots cast.  With over 4 million votes (27%) of the total, Roosevelt out polled Taft, who earned the support of only 3.5 million (23%) of the electorate.  In last place was Eugene V. Debs, on the Socialist ticket, with nearly 1 million (6%) votes. 
 
Within the past 117 years, third parties have arguably tipped the presidential electoral scale on only three occasions.  Ross Perot, running as the Reform Party’s candidate, amassed nearly 19 percent of the total—with 19.7 million votes.  In that same year some 45 million voters (43%) cast ballots for Clinton.  Coming in a distant second—6 million votes behind—was H.W. Bush.  Had Perot spoiled Bush’s chance for a second term?  It is a matter of speculation.
 
Perot’s run for the roses stands out, however.  Not only did he make it onto the ballot in most states, he made it onto the national debate stage.  Perot showed it was possible, if not usual, for an untested, inexperienced, incredibly rich, outside-the-political-establishment businessman to challenge the sitting plutocracy.      
 
Since its 1992 apogee, the Reform Party has dwindled to a mere 20,000 members.  It was, however, one hell of a ride while it lasted. 
 
Wearing [Out] of the Greens?
 
Roosevelt made his third party run because he felt Taft veered from the progressive path.  Perot brought to politics the perspective of a successful—certainly rewarding—business career.  He threw his hat in the ring believing that the ethos of business was better than the pathos of politics.  With the entrance of Ralph Nader came a certain—if limited—logos of progressive environmentalism.
 
The contentious candidacy of Ralph Nader in the 2000 United States presidential election is thought by some to have tipped the scale to G.W. Bush.  Others point to the SCOTUS decision stopping the recount.
 
Gore out polled Bush in the popular vote by over 500,000 votes.  Unfortunately for him and the Democrats, the popular vote was not distributed to their advantage. 
 
Gore’s (and the Democrats’) Waterloo that year was Florida, where they are still talking about hanging chads and the recount.  Bush defeated Gore by 537 votes in the Sunshine state.  Nader, running as the Green Party’s candidate, received 97,421 of the cast ballots.  His total national vote count amounted to a bit under 3 percent. 
 
Nader’s Green Party candidacy started in 1996 and his ticket topping position ended after
the election in 2000.  A long suffering environmentalist, Nader was seen as a cranky and unrepentant spoiler.  Having called Gore a “broker of environmental voters for corporate cash," and "the prototype for the bankable, Green corporate politician," he earned the enmity of the then Sierra Club president Carl Pope. 
 
Not wanting a repeat of 2000, the Democrats joined “mainstream” environmentalists in keeping Nader at bay in 2004.  In fact it was rumored and never denied, that the now Democratic Governor of Virginia, Terry McAuliffe, offered to pay Nader if he would just go away—at least in certain battle ground states.
 
Nader persevered in his pursuit of the presidency in 2004, when he ran as the Reform Party nominee.  His march beyond the fringe continued as the standard bearer of several minor parties, including the Ecology Party of Florida, the Natural Law and Peace and Freedom Parties and the Socialist Alternative.  
 
According to Wikipedia, Nader involved himself in the 2012 election as a moderator—of debates:
 
During the United States presidential election, 2012, Nader moderated a debate for third party candidates at Washington D.C.'s Busboys and Poets, what USA Today described as a "hipster coffeehouse/bookstore". The debate was attended by Green Party presidential candidate Jill Stein, Libertarian Gary Johnson, Rocky Anderson of the Justice Party and Constitution Party candidate Virgil Goode. He later moderated a similar debate in a studio appearance broadcast by Russia Today. 
 
Sound familiar?
 
Johnson and Stein Today
 
Fresh from the hipster coffee house cum bookstore circuit, Gary Johnson and Jill Stein are once more in the fray and on the road.  Both are seasoned candidates—Johnson an experienced governor.  Hoping to be the beneficiaries of disillusion and disgust, they are striving to make their parties respected, legitimate and lasting combatants on the political battlefield.
 
Not fucking likely, I must say.  Although destined to be remembered as the standard bearers of the forces of none of the above, they do have a role to play in securing a place for future third parties. 
 
I will let Dr. Stein’s words and actions speak for themselves.  As reported in The Hill:
 
Speaking of the possibility of a Trump presidency, Stein made the stunning claim that Donald Trump, despite the unbridled awfulness of his agenda, would actually be the “less dangerous” choice for President compared to Hillary Clinton because he doesn’t know how to work the levers of government and would be held in check by Congress.
 
This from a candidate who: would be king; gets on a plane for Cincinnati when her speech
is in Columbus; and, thinks a spray can of paint is an effective communication medium.  Physician, heal thyself!
 
Gary Johnson is an experienced “mainstream” politician, having served as the Republican Governor of New Mexico from 1995-2003.  This is his second time around as the Libertarian Party’s presidential nominee.  With creds like these and having been around the political block more than once, you would think that he could mount a serious candidacy.  Well, you would be half right.
 
Once again, I will let the candidate’s words and actions speak for him.  Johnson has managed to step in it—with one foot and then with other—twice in the past few weeks.  First, was his gaff on MSNBC's "Morning Joe" show, when Mike Barnicle asked him what he would do, as President, about Aleppo?  Unfortunately for Johnson, he didn’t have the foggiest idea what an Aleppo was.  Not only did it show on his face but, the honest man he is, he asked “What is [an] Aleppo?”
 
I feel for the guy; I do. I have vivid and painful memories of the two times in my career I totally blanked on what I was to say before substantial audiences.  Thankfully, I was neither on TV nor running for President. 
 
Then there were two.  In an interview on CNN’s Reliable Sources, Johnson was asked about the terror intended September bombs in New York and New Jersey and the stabbings in Minnesota.  As a preface to his response, he graciously said that he “…was just grateful that nobody got hurt.”  The 29 wounded victims probably didn’t agree with him—although undoubtedly appreciative of his concern.
 
Running for President of the United States is not easy.  Living in a fish bowl, being on the go 20 of 24 hours every day and expected to have a practiced, pertinent and thoughtful answer to every conceivable question has got to be difficult. 
 
On Johnson’s worse day, he comes off better than Trump.  I rate a willingness to admit your mistakes and apparent honesty high on the list of character traits I would like to see in my—our—President.
 
Regrettably, Secretary Clinton is right—politics is a contact sport and stupid can get you gob- smacked.  Most telling in this election, however, is not the gaffs of the third party candidates but the forgiveness accorded them.  Through it all, they continue to attract likely voters.  With razor thin margins of victory likely to determine the next president, it won’t take much for third party candidates to tip the election.  Remember Florida.
 
The depth of despair many of today’s voters feel is so strong they seem willing to vote for “#never them,” fully aware, that in an election this close, one of the two most disliked and mistrusted candidates of the modern political era will be sworn in as the 44th President of these here United States.
 
Will disenchantment with the Republican and Democratic parties be sustained after the election?  Will it result in divorce decrees by regular Republicans and Progressive Democrats?
 
Watch for Part IV of the Let’s Party series, when I will be discussing why the 2016 election will give rise to mainstream third parties and lead to a more collaborative form of government. 

I interrupt the Justice Delayed series for something slightly different. The series has thus far focused on the challenge to EPA’s authority in the matter of the Clean Power Plan (CPP). Today, I want to shift the discussion to a law suit filed in the federal district court in Oregon.

The 21 plaintiffs, ranging in age from 8-19, are accusing the defendants of violating their constitutional rights under the 5th amendment's due-process and equal protection principles, as well as the 9th amendment's guarantee of the right to inherit “a stable climate system.”
 
The relief requested by these young climate champions is an enforceable court ordered national plan mandating a decrease in atmospheric CO2 to 350 parts per million by the end of the century. A target far more stringent than the CPP.  
 
The case is currently pending a decision on a motion by the U.S. Department of Justice (DOJ) and industry intervenors, including the National Association of Manufacturers (NAM), to dismiss the case. Arguments were made on Sept. 13 before Judge Ann Aiken of the U.S. District Court for the District of Oregon. The DOJ and NAM contend that the plaintiffs lack standing because: the claimed harm lacks specificity; the harm cannot be traced to actions of the defendants; the plaintiffs have no constitutional right to a carbon free environment; and the public trust doctrine does not apply to the atmosphere and, therefore, the government bears no responsibility.
 
Thomas M. Coffin, the magistrate judge, wrote in his order permitting NAM and other industry interests to intervene in the case:

Plaintiffs assert that the actions and omissions of defendants…increased CO2 emissions "shock the conscience," infring[e] the plaintiffs' right to life and liberty in violation of their substantive due process rights. Plaintiffs also allege defendants have violated plaintiffs’ equal protection rights embedded in the Fifth Amendment by denying them protections afforded to previous generations and by favoring short term economic interests of certain citizens….Finally, plaintiffs allege that defendants have violated the public trust doctrine, secured by the Ninth Amendment, by denying future generations essential natural resources.

Judge Aiken is to decide the question of standing. Should her honor find for the plaintiffs, the case will then be argued on its merits. No matter who prevails on the question of standing and/or the finding of harm, there will be appeals—delaying a final decision for several years.

The procedural question of standing is nearly as important as the substantive issues. If the plaintiffs’ right to sue is upheld, it would establish the right of citizens to pursue polluters and to demand of government an enforceable framework of further protection. The prospective precedent is more than a little frightening to industry.

Once the road is open, citizens can extract a heavy toll on those who would violate those rights. Redress of citizen grievances against the private sector could take any form from restraining orders to actual and punitive damages for what amounts to a  As regards government defendants, courts could order proactive enforceable climate change frameworks—a right that currently resides with legislators and chief executives.

This is not the first time that the plaintiffs’ attorneys at Our Children Trust have attempted to establish a citizen’s constitutional right of a clean environment. In an earlier suit, plaintiff counsel argued that the federal government was obligated under the Public Trust Doctrine to regulate greenhouse gasses. The lead plaintiff, Alec L., stated:

Climate change is the most urgent issue of intergenerational justice that perhaps our species has ever faced….This is more important than anything to members of my generation, and no matter how many times we are turned away, we will continue to fight.

This earlier argument was rejected on appeal by the federal district court in the District of Columbia—Justice Garland presiding.
The doctrine of public trust goes back to the Roman Emperor Justinian. It has been a part of the American legal system since the Constitution was ratified. The doctrine directs government to hold essential natural resources in trust for present and future generations. Although the Emperor claimed custody, it does not currently extend in the U.S. to the air we breathe.

A particularly snarky comment on the case was made by H. Sterling Burnett of the Heartland Institute:

This is purely political — a liberal judge putting his personal opinions on climate change above the law…. The Obama administration has gone around our elected representatives to enact draconian restrictions on greenhouse gas emissions, yet for these kids that’s not enough.

…this case “should have been thrown out of court….since the children can’t show they have or are or will be harmed …burning fossil fuels does not violate any portion of the Constitution or the bill of rights… Rather, burning oil and gas contributes greatly to life, the pursuit of happiness, and the general welfare.

Burnett has a right to be worried. If the “children” are granted standing, courts could have significantly more sway over the fight against climate change.

For the courts to have the power to direct the legislative and executive branches of government to get off their damn duffs and enact enforceable and sufficiently strident environmental regulations, the Kelsey case or a surrogate will have to go the full distance—to and through the Supreme Court of the United States.

Although no federal case in the U.S. has succeeded in securing a citizen’s right to sue the government over environmental indifference and regulatory inadequacies, there is an emerging trend both here and abroad. The Our Children’s Trust is pursuing the rights of young plaintiffs in a number of state jurisdictions and has vowed to continue the fight at the federal level.

It should be noted that the age of the plaintiffs is not just a matter of public relations. Having most of their young lives ahead of them, the cumulative harms to young bodies that flow from today’s pollution and tomorrow’s exponential degradation of the environment is significantly more than it would be for an old fart like me.

In recent years courts in the Netherlands and Pakistan have rendered decisions in support of citizens. Last year a Dutch judge ruled that the government plan to reduce emissions by 17 percent by 2020 was below the 25-40 percent international norm. The government was given five years to clean up its act.

The Supreme Court of Pakistan has given a seven year old standing to pursue his rights to a clean environmental future. Just this past week, the International Criminal Court announced it will give special consideration to pursuing crimes involving environmental destruction.

The pursuit of citizen standing to sue governments for actions harmful or insufficient to preserve the health, welfare and future of the planet for current and coming generations may not be an example of justice delayed. It is, however, a growing effort to have justice better defined.

Look for the next in the series of Justice Delayed: The Clean Power Plan.

Lead image credit: Instagram/Erika Griffin Wozniak

"…people who feel that the government has let them down, the economy has let them down, nobody cares about them, nobody worries about what happens to their lives and their futures, and they’re just desperate for change." Hillary Clinton
 
Perhaps not as deep, the divide in the Democratic Party is equally distinct.  The populist portion of the party under the titular lead of Bernie Sanders is resigned, if not totally reconciled, to supporting Clinton’s candidacy. 

The overwhelming majority of Sanders supporters will cast their votes for Clinton come November. It’s clear, however, these voters are less committed to Clinton than they are opposed to a Trump.  Had Sanders secured the Democratic nomination in Philadelphia the possibility of a new left-of-left-leaning political party would today be much less likely. 

Sanders progressives comprise a potentially potent new political force.  Characterized by youth, enthusiasm and a commitment to social and environmental justice, this connected constituency—galvanized by an avowed old line socialist—is as disruptive to the Democratic Party as the Trump troop is to the Republican.

The depth of support for Sanders was startling.  Basically thought less than a speed bump on Clinton’s way to the presidency, he proved a formidable and persistent opponent. Stirring the passions of his supporters, he challenged the Democratic establishment. 

Unmoved by admonishments to step aside and allow Clinton to pass, he used the internet to raise tens of millions of dollars from small donors. Before the conclusion of the nominating convention in Philadelphia, the chair of the Democratic Party resigned and a party platform far more progressive than originally proposed was in place.

A significant question of whether the fire and commitment of the primaries can be maintained after election remains.  Incorporation of the Our Revolution movement showcases both the potential and the problems faced by progressives trying to “institutionalize” their political power and influence. 

Ironically, formation of Our Revolution seems at odds with itself—or at least one of its own beliefs.  To attack the establishment, they must become an establishment.  A practical lesson that will undoubtedly be learned with some difficulty.

Before the organization even opened its doors, half of the staff walked out because Sanders asked his campaign manager, Jeff Weaver, to establish and lead a 501 (c)(4) organization that would allow it to accept unlimited contributions—without the need to reveal the identity of donors.
According to an article by David Weigel and John Wagner:

While some around Sanders saw Weaver as the perfect leader…. younger staffers blamed Weaver for what had gone wrong in the long Democratic primary.

"As a campaign manager, Jeff was a total disaster who failed Bernie's supporters with his mismanagement," said former organizing director Claire Sandberg. "We're organizers who believed in Bernie's call for a political revolution, so we weren't interested in working for an organization that's going to raise money from billionaires to spend it all on TV."

Sanders’ failure to follow through on his support of Tim Canova’s effort to unseat Debbie Wasserman Shultz concerned many in the Sanders camp.  Canova never saw Sanders in Florida—even after the Senator endorsed him around the time the DNC’s hacked emails were released.  The missing missives having proved that Wasserman Schultz and friends were indeed trying to rig the system for Clinton’s nomination.

Notwithstanding some missteps and internal conflict of conscience, Our Revolution can become a major source of funding for progressive candidates and agendas.   When combined with Sanders policy institute and leadership PAC, the Socialist Senator has forged quite a stable of political forces under the progressive banner.

Sanders is not without heavy weight supporters in the environmental community.  The founder of the green group 350.org is not only a leading environmental advocate in his own right, but was Sanders representative on the Democratic platform community and counts among his 350.org partners a veritable who’s who of leading climate advocates.

As they say in politics, “money talks and bull shit actually helps you get elected.”  Just ask Trump. 

Sanders is not without access to big bucks.  In addition to the tens of thousands of small donors and local activists Sanders has on his mailing lists, he has been connected to Tom Steyer. Steyer reportedly spent $74M in support of candidates who made climate change a core component of their campaigns in 2014.  That much support is hardly chump change, even by Trump’s inflated standards.

Steyer’s NextGen Climate project is well-healed and willing to put a lot of money where its mouth is.  Although Steyer has endorsed Clinton, he came to the party late—declaring his support only after her becoming the nominee.

NexGen’s focus on climate change, youth and electoral politics is the perfect companion to Our Revolution.  Steyer’s wide ranging alliances with organized labor, Democratic Party operatives and a host of other liberal/progressive pressure groups makes him a formidable force for political change.  Although far from universally loved, he is well-respected and far from a Democratic partisan.

Having such standing in Democratic circles, why wouldn’t he simply focus on moving the Party to the left?  Much of the reasoning behind a New Democratic Party is the same as that which would motivate moderate and conservative mainstream Republicans to withdraw and establish a New Republican Party. 

Change from within is arduous and time-consuming.  Why waste time to convince the current ruling elites that they need to move anywhere.  Why not simply cut the Gordian Knot and begin again? 

All that is needed to form a new party is out there.  Disaffected and disappointed voters “just desperate for change,” both human and political capital, a policy making framework, access to the media, sophisticated operatives and a track record that validates the ability to attract voters to their cause. 

Sanders may have lost the primary fight, but he did so in spectacular fashion, having garnered 12 million votes in the primaries.  He, like Trump, has passed through the fire and emerged as a hardened, tested and practical politician.

Voter unrest is not likely to change no matter who wins in November.  The current political system is still in a state of stasis—seemingly unable to enact solutions to any of the nation’s problems. 

The presence of the needed pieces does not automatically guarantee the existence of a new party.  For that to happen a catalyst of some sort is needed.  What will galvanize the formation of a New Democratic Party?  I believe it is the issue of climate change.

Whether Clinton or Trump is elected, climate advocates are not going to be happy.  A Trump administration will continue to deny climate science.  For a President Trump there can be no compromise—no teleprompter telling him to be reasonable.

President Clinton will continue the policies of Obama.  Whether she will advance them to any significant degree is questionable.  Sanders, through McKibben, was able to green the Democratic platform—but rather reluctantly.  Moreover, McKibben is on record as being more than mildly disappointed in the final outcome of negotiations.

Whatever Madam President might do, while in office, will not be considered enough by the environmental community.  Clinton will be constrained by mainstream politicians.  She is a moderate by nature and a compromiser by necessity.  Although I respect those qualities, they will prove liabilities in today’s political environment. 

Maintaining the energy levels of the democratic primary progressives will take a hot button topic.  What is more inflammatory to the right, more galvanizing on the left and more serious than the sustainability of life on earth than climate change? 

In truth climate change is not a single issue.  It touches all aspects of society across the entire globe.  Survival and quality of life transcends party labels and economic classes.  We are, after all, in this together.

Environmentalists are legitimate and recognized advocates for social justice.  As such an environmental agenda speaks to the issues of health care, education, fairness, diminished control by established and often wealthy politicians.  Yes, Streyer and his allies are rich and powerful.  However, as Trump has shown, even the wealthy can be leaders of the anti-establishment.

Will a New Democratic Party come into being?  I don’t honestly know.  What I do know is that there has never ever been a greater likelihood for the rise of a new left-of-left-leaning political force in the U.S. than exists today.

In the next part of this series, I will address why the Libertarian and Green Party will not succeed in November but might become the targets of a reverse merger.  Stay tuned.

 (Will 2016 be the year the 2 party system in the U.S. implodes?  Many have raised the possibility that neither the Republican nor Democratic parties will be intact when the dust finally settles in November.

Discord within the parties has defined the presidential race from the beginning of this election cycle. The emergence of two of the most unpopular and mistrusted candidates in our history may well prove the trigger of transformation of the two party system.

The disunification of the Democratic Party and the rending of the Republican have the same root cause--an abiding mistrust of the established order. Years of political deadlock, harsh economic downturns with relatively mild rebounds, expanding divergence between the haves and the have nots and, wars without end have many longing for change. Not a change of personality but of fundamental character.

It is startling that voters will be casting their ballots in November not so much for a candidate as against one.  A recent Pew survey found that among Trump supporters only 44 per cent were actually for him, while 53 per cent were against Clinton.  (Pew Research Center, see Figure below)

The numbers are little better for the Democrats. Only 53 per cent of self-identified Clinton supporters were for her, while 46 per cent are motivated by their dislike of Trump.  Should those numbers hold up through the fall, neither candidate will be able to claim a mandate to govern. (Pew Research Center, see Figure below)

The tenuous nature of any November victory is likely to maintain, if not deepen, the gridlock voters have come to loathe. To the victor will go the challenge of leading a deeply divided nation.

Looking to Europe, it is clear that the emergence of left-right parties opposed to the established order has shown itself in spectacular electoral upsets.  Recent election results were as much a surprise to the challengers as to the challenged.  At the beginning of 2016 who could have imagined that: Britain would vote to exit the European Union; Chancellor Merkel would be repulsed by the far right Alternative for Germany Party (AfD) causing her right-center Christian Democrats to place third in her home district?

The emergence of the left leaning populist 5 Star Party in the mayoral races in Rome and Turin has the Partito Democratico wondering if it will gain a leadership position in next year’s national elections. Unlike Germany, the battle in Italy is between the left-leaning party of Prime Minister Renzi and the further left party founded by Italy’s leading comedian and blogger, Beppi Grillo.

Whether the far right National Front in France, the Independence Party in the UK, Germany’s AfD or the leftist 5 Star Movement in Italy, the message is the same. Voters are tired and suspicious of the established order and willing to send a less than subtle message that they are no longer willing to take it.

They want change! Not gradual, not incremental, but catalytic and discernible change!

Beyond a general feeling of discontent, voters here and abroad are demanding reformation for much the same reasons. They feel established politicians neither understand nor sympathize with their plight—offering unkept promises in place of real solutions. Lethargic economies, corrupt governments, a fear of foreigners and political in-fighting have come to characterize the new normal. Nativism is considered nationalism and, therefore, justifiably jingoistic.  The system rigged.

Is it any wonder then that voters are willing to support outlandish and questionably competent change agents like Nigel Farage, Marie le Pen, Frauke Petry and Donald trump? Experienced politicians like David Cameron, Angela Merkel and Hillary Clinton are neither likeable nor trusted.  Rather than professional politicians, voters are increasingly willing to support bigots, comedians and reality TV stars.

More of the same is simply unacceptable. The possibility of real change has become worth the risk, in the minds of electors. Establishment pundits and politicians pass off the rise of populism on both the right and the left as fleeting fancies.  A phase being gone through by unruly constituents.  I believe they are wrong and that the summer of discontent will become winter for the traditional two party system in the U.S.

The takeaway from the primaries is that Trump and Sanders have both tapped into a dark pool of discontentment. Having very different perspectives and appealing to polar opposite bases, both candidates profited from voter antipathy towards professional politicians and the Washington establishment. That the left and right share the same sense of disaffection is a sign of the depth of dissatisfaction and the unlikelihood it will dissipate.

Trump has become the spigot through which hatred and bigotry flow.  Although, I have trouble reconciling his choice of Bannon as campaign chairman, I believe—or perhaps simply want to---he is no more committed to the principles of the alt-right than he is to conservative Republican tenets.  That he accepts the endorsements of David Duke and Milo Yiannapolous is more a matter of ego than affection.

Whether he believes in the doctrines of such demagogues or not, he gives voice to them.  In trumpeting their messages on the stage of presidential politics, he legitimates them. Trump comforts and aids those who’s vile vocabulary violates the very spirit and letter of the constitution. Having let the genie of hate and divisive discourse out of the bottle, he will not go lightly back into the shadows--neither will Trump.

Should he win or lose in November, he has marked the Republican Party as his territory and exposed it to a populist takeover by the Breitbart barons and their minions. I believe it will prove problematic for establishment Republicans to take back the party of Lincoln.

Faced with the challenge of evicting the newly entrenched, will what promises to be a most uncivil war be worth it? Do the newly dispossessed stand a chance of quick victory?

Starting in January of 2017, preparations for the 2018 mid-term elections will need to begin. Establishment Republicans can ill afford to fight on two fronts. Neither can they expect to prevail on either—much less both.

It is easy to see a troika of Trump, Bannon and Ailes turning the Republican Party brand into a dog whistle for the far right. They have the resources, the recognition and a reason for revenge. Between Breitbart, alt-right, remnants of the Republican Party and what could be a new cable network, they have all the makings of a viable political party. Why leave now?

Possession being 9/10ths of the law Trump and company have no reason to leave. Their egos wouldn’t permit it. Besides, they have scores to settle—with the Party, Fox News, CNN and anyone ever opposed to them.  Hot or cold, revenge will prove their reward.

Rather than stay and fight, regular Republicans will find the path of least resistance backing out and creating the New Republican Party. No resources will be wasted, no wounds need be healed, no problem getting on the ballot in all states and territories. Most importantly, they can immediately focus their sights on 2018.

Re-branding themselves as left-of-right Republicans, the New Party will have most of the resources of the old:  recognized politicians; experience at the federal, state and local levels; financial backers like the Kochs, Bushes, and Romney cohorts; and, an expansive media reach through commentators like Kristol and Will and Fox News. Hell, they can even count on CNN.

Many of Trump’s core supporters will follow the Donald.  Those more centrist and classical conservatives will enlist in the army of the New Republic. Over time, I can easily imagine that a left-of-right party would find support from a significant portion of the 42 percent of Americans who consider themselves independents.

But--you might say--third parties in the U.S. have never fared well.  Look to Teddy Roosevelt and the Progressive (Bull Moose) Party. He was a fabulously popular political icon, and yet, he lost his bid for a third term and gave the election to Wilson and the Democrats. Look to Huey Long, George Wallace, Ross Perot and John Anderson. They all ran and lost!  Why would another attempt at a third party turn out differently than in the past?

I’m glad you asked, as I am currently working on the answer. In Part Two of this series, we will see how the Democratic Party faces a similar situation as that facing the GOP.  Check back with me at www.civilnotion.com.


​http://www.pewresearch.org/fact-tank/2016/09/02/for-many-voters-its-not-which-presidential-candidate-theyre-for-but-which-theyre-against/ft_16-02-09_negative_voting_chart_1

I suppose it should come as no surprise that leading members of a do-nothing Congress are encouraging the states to do nothing to plan for the possible eventuality that the Clean Power Plan (CPP/Plan) will be upheld by the courts.  In this installment of the series Justice Delayed, I will be discussing the efforts of members of Congress to shut down anticipatory planning efforts by the states and the U.S. Environmental Protection Agency (EPA).
 
Senate Majority Leader Mitch McConnell (R-Ky.) along with Sen. James Inhofe (R-Okla.) are encouraging states to stop any work they might be doing on the CPP.  Echoing the argument of the Texas Public Policy Foundation (TPPF), these senators are suggesting that as stewards of taxpayer dollars, state agencies should not be consuming state resources unless and until it is necessary to do so (April white paper from the Texas Public Policy Foundation).
 
In his letter to the states, McConnell wrote:

[Not to plan now] means that even if the rule is ultimately upheld, the clock would start over and your states would have ample time to formulate and submit a plan; but if the court overturns the [ESPS] as I predict, your citizens will not be left with unnecessary economic harm. Nor would your states be left with responsibility for billions in unnecessary investment obligations.
 
For those unfamiliar with Inhofe, he is the chairman of the Senate Committee on the Environment and Public Works and author of a chapter of the climate deniers bible--The Greatest Hoax: How the Global Warming Conspiracy Threatens Your Future. These leading senators are by no means alone in their interpretation of decision from the Supreme Court of the United States (SCOTUS) to stay the implementation of the CPP.   
 
Reps. Fred Upton (R-Mich.), Hal Rogers (R-Ky.) and Tim Murphy (R-Pa.), ranking Republicans all, sent a letter to EPA Administrator Gina McCarthy expressing concern that the agency was expending resources on a “shadow regulatory structure to implement the CPP.”
 
Adamant belief that the SCOTUS’ decision in the case West Virginia, et. al V EPA, et. al.  is shared by others.  Notably, the attorneys general of Texas and West Virginia, fossil fuel companies and the U.S. Chamber of Commerce are all trying to get EPA and the states to “put their pencils down” and walk away from the Plan—at least until a final decision is handed down by SCOTUS.  Doing so could easily stall implementation of the Plan for several years.
 
Sparking their concern at the federal level is EPA’s continuing solicitation of comments on the Clean Energy Incentive Program (CEIP) and its promise to assist states with their voluntary efforts to develop compliance plans.  The agency has requested a $50 million increase in FY17 funding to support the proffered assistance.
 
A total of 19 states are voluntarily working on plans that would meet CPP mandates; nine others are considering it.  Ironically, some of these states are part of the pack asking that the Plan be declared unconstitutional, e.g., Louisiana and Idaho. (See Figure 1). 
 
Opposition Congressional leaders like Rogers, chairman of the House Appropriations Committee, and McConnell contend:

1. The court ordered stay is the equal of an injunction; and
2. The states will have the same amount of time to comply with the CPP’s provisions should the Plan be upheld. 

There is a legal distinction between a stay and an injunction, however.  A stay temporarily suspends an agency rulemaking during judicial review.  An injunction, in contrast, is a specific order directing an entity (EPA) to take or to refrain from taking some action (implementation of the CPP). 
 
In the opinion of Richard Revesz, Lawrence King Professor of Law and Dean Emeritus at the New York University School of Law, SCOTUS’ terse order lacks the specificity required for an injunction.  In opposition is the Congressional testimony of Allison Wood, Partner, Hunton & Williams LLP, who is the attorney of record for several of the coal company plaintiffs in the case. 
 
Lawyer Wood contends that failing to toll (halt) all of the rule’s deadlines deprives the states and regulated parties of the time EPA itself decided was needed to prepare compliance plans, in a manner that ensures electric reliability.  More specifically, Wood and Congressional opponents believe that all of the milestone dates of the proposed rule should be pushed back an amount of time equal to the number of days between the stay and the final decision—should the Plan be found constitutional.
 
Simply perforce of the ordered stay and directed re-hearing by the U.S. Court of Appeals for the District of Columbia Circuit, the first deadlines of Sept. 6, 2016/2018 will logically toll until a time after all judicial avenues are travelled.  Whether or not the other deadlines of 2022-2024, 2025–2027, and 2028–2029 will need to be adjusted is a matter for the judiciary to decide on the basis of the final decision date. 
 
The plaintiff’s pleadings in the case did reference the deadline dates and took the position that they be automatically adjusted to preserve the length of time given for compliance.  SCOTUS, however, neither referenced nor accepted this position.  It is logical to assume, therefore, that the high court considered this to be a matter for the lower courts to decide and for SCOTUS to account for in their final ruling. 
 
The decision to remand the case back to the Court of Appeals for the District of Columbia only stayed EPA from implementing the ESPS rules.  There was no specific or even implied direction to toll all activities.  It is reasonable to assume, therefore, that had SCOTUS thought the plaintiffs’ claims to automatically adjust compliance dates reasonable, they would have said something.  It is equally reasonable to believe both on the basis of common sense and the acknowledged complexity of the case that the courts will allow the states reasonable time to comply, once the final decision is made.  The details of the deadlines, however, are for the courts to decide not the deniers to dictate.
 
Opponents’ efforts to have EPA and the states “put their pencils down” is an obvious attempt to accomplish indirectly, i.e., in an extra-judicial manner, what SCOTUS was unwilling to order directly.  The complex nature of the requirements of the CPP, e.g., conducting the economic and technological assessments necessary and gaining the approval of the necessary branches of state government, reasonably requires long lead times.  Prudence dictates that a state wanting to use the interim between filing the case(s) and decision should be able to exercise such discretion. 
 
Certainly the clear and present dangers of climate change should be sufficient reason for a state to use the available time wisely.  Opposition efforts to interfere with prudent planning is simply an effort to buy time for fossil fuel interests allowing them to continue polluting the environment.
 
Separation of powers is a cornerstone of our republic.  When Congressional leaders attempt to dictate what the courts are unwilling to declare, the result is justice delayed.  Justice delayed is often justice denied.
 
Look for the next installment in the series, when I will be addressing what several of the states are doing in anticipation of the possibility that the CPP will be upheld and what responses are being given to the questions of EPA in an effort to fine tune the regulations.

Figure 1

 Source:  http://www.eenews.net/interactive/clean_power_plan
 
Read the first article in this series: The Clean Power Plan: Justice Delayed