Washington’s Attorney General Takes Both Sides of Tort Reform Issues (Part 1)

June 26, 2008

Washington State’s Attorney General Rob McKenna recently campaigned for tort reform, claiming that the legislature needed to step in and reduce the awards that were being entered against the state. He indicated that the courts were out of control and the legislaure needed to do something about it:

“But the courts have moved so far away from what the Legislature intended back in the early 1960s that the law removing sovereign immunity is no longer recognizable, and at the same time the Legislature has failed to act at a policy level where the limits ought to be.”

Mr. McKenna got into office advocating tort reform for everyone, saying that judgments were getting too big.

That sounds to me like just expedient court bashing. He says lawsuits are preventing the state from taking corrective action? That sounds like baloney.

Well, what did he do when the Exxon Valdez case got to the Supreme Court and the Court was asked to review the biggest punitive damages award in American history, $5 billion? This award was being attacked on two grounds. First, Exxon said that it was excessive. The plaintiffs were awarded all their proven damages, plus $5 billion. Second the spill was a violation of the federal Clean Water Act which does not award punitive damages at all. This omission from the law was fought for by Republicans, who generally are beyond cautious with respect to environmental laws. The $5 billion punitive damages award was granted under court created doctrine that the trial judge held applied in spite of the Clean Water Act.

The arguments of Exxon are exactly the same positions that Mr. McKenna campaigned on and which he has been advocating recently.

Mr. McKenna participated in this case by helping prepare a brief on behalf of Washington and 33 other states which argued that the punitive damages award should not be reduced and that the court created doctrine that allows punitive damages ought to be respected in spite of contrary language in the Clean Water Act. This is exactly the opposite of what he is saying in public.

Lawyers are sometimes required to advance positions they do not believe in but this does not appear to be the case in this instance. Mr. McKenna is crowing about the result and how he helped preserve punitive damages under court created doctrine!

The statement he issued on June 25 says this:

“We are pleased the court upheld an award of punitive damages, since Exxon had argued that no punitive damages can be awarded in a maritime case under federal law, no matter how egregious the circumstances,” McKenna said. “We are disappointed, however, that the Court did not award the full punitive damages authorized by the Court of Appeals. The reduced award is brutally disappointing for the Washington and Alaska fishermen and their families who were counting on this money to help make them whole.”

Don’t get me wrong; I don’t disagree with this sentiment. It is just that because I agree with him, I cannot in good conscience claim to support tort reform, particularly the two points championed by Exxon and Mr. McKenna in public statements.

I have puzzled over this for some time trying to render Mr. McKenna’s divergent positions rational. The only thing I can come up with is that Mr. McKenna thinks that punitive damages are fine for injured people in other states but not for people in Washington, except for fishermen. That still does not make sense to me.

McCain’s tv ad

June 17, 2008

Senator McCain is running a television ad in key states and on national cable which portrays him as a strong environmental leader. The ad is on you tube


The ad puts in sharp relief the inherent tension in McCain’s campaign. He is described as “standing up to the president.” This is softer than actually opposing his policies but at the same time distancing him from Bush.

McCain needs Bush’s support for fund raising and to secure Bush’s base but at the same time Bush is perhaps the least popular president ever, certainly in recent history. So McCain must present himself as a contrast to Bush.  The ad is accurate in portraying him as one of the few Republicans who acknowledged global warming and accepted the science that supported the theory when there was a presidential fiat declaring that there was no such thing.

He has chosen the environment and global warming as a signature campaign issue despite having refused to vote on all key environmental legislation in the Senate.

All the vague references to his interest and effort in the environmental arena are references to efforts in years past and certainly not to his recent voting record. He vaguely talks about a plan which as far as we can tell is quite similar to the one that just failed in Congress.  His recent record is absolutely the worst in the Senate for having failed to support anything. He is doing this in order not to lose support from utilities and industry.

The Climate Security Act: Where are our Leaders?

June 6, 2008

The Senate could not muster the votes to block a filibuster of the Climate Security Act and with that Harry Reid took the bill off the floor, ending any realistic prospect of passing the first global warming legislation of note.

To some degree this fate is a product of the polarized atmosphere, not just in our Congress, but throughout the country. With roughly 80% of our senators claiming to be creationists (who tend to disregard scientific conclusions), the “base” oriented Republicans could not accept the bill without risking the alienation of critical constituents, including powerful utility companies. (This is the reason that McCain distanced himself from the bill after sponsoring it’s predecessor six years ago.)

On the other hand the bill’s heavy backing of the nuclear industry alienated many environmental groups and several senators in favor of legislation addressing global warming risked alienating environmental interests for backing the bill as it was presented on the floor.

Before it became the captive to various interest groups Congress was regarded as a sort of milieu of compromise. Congressional leaders were people who could get deals done through astute negotiations and compromise. Now, with the various rating systems which rate according to yes or no votes on designated bills, the notion of succeeding through compromise is being replaced by evaluation according to the zealous advocacy of special interests. This is a good example of how the people fare in such a system.

Global Warming Detractors Get Reduced Funding

May 29, 2008

This came from a spokesman for Exxon Mobile:

“We discontinued contributions to several public-policy research groups whose position on climate change could divert attention from the important discussion about how the world will secure the energy required for economic growth in an environmentally responsible manner.”

Without the support of oil companies, this position will lose much of whatever traction is still has.

According to the Dow Jones Newswire Exxon Mobil in 2007 donated about $13 million to “environmental” and “public policy research.” Over the last two years there has been a marked softening of Exxon Mobile’s once adamant position that global warming was a fantasy. This corresponds with the replacement of Lee Raymond, its CEO and chairman, by Rex Tillerson two years ago.

Resolving McCain’s Environmental Record

May 13, 2008

John McCain is campaigning on his environmental record. If you’ve heard or seen his ads, they rather boldly distance him from Bush, suggesting Bush is an unpopular extremist on the issue of global warming and that McCain is a centrist, but not an eco-freak. Many people see McCain’s position on the environment as the heart of McCain’s reputation as a maverick and it is certainly critical to getting the votes of the “Reagan Democrats” that he covets.

McCain’s ads seem to represent the prevailing view among journalists, including the Seattle P.I.’s Joel Connelly, who criticized the Sierra Club for ranking McCain as the worst congressperson on the environment and went on to extol to his leadership as an environmentalist. He seemed to attribute the Sierra Club’s evaluation of Senator McCain to some sort of undefined personal vendetta.

Mr. Connelly sites three areas in which Senator McCain has been a leader on environmental issues: a) voting against oil drilling in the Arctic National Wildlife Refuge; b) introducing legislation to cut greenhouse gas emissions; and c) co-writing a 3.5 million-acre statewide wilderness bill. These three things are illustrative of the difficulty claiming that McCain is an environmentalist.

First, Senator McCain has actually voted on both sides of the Alaska drilling issue, most recently he has been in favor of drilling. In 1995 and subsequent years he voted for drilling. The Republicans have made several attempts to get this through Congress. This year they attached it, as an amendment to a defense spending bill. This provided cover for voting for drilling. The party line was that we should not compromise our defense by voting against the measure, a false dichotomy. Senator McCain followed the party line and supported the bill as amended, saying that our defense was too important to sacrifice it for an Alaska wildlife refuge drilling ban. The Washington Post reports that environmentalists then went to two other Republican senators and found the necessary support to get the drilling authorization separated from the defense spending bill. In this way the prohibition against drilling in the refuge was maintained in spite of Senator McCain.

Senator McCain’s green house gas emission legislation is one of his chief platforms. His speech in Portland featured this legislation, so it is certainly worth discussing. He cosponsored the Climate Stewardship Act of 2003, which was defeated. It was a good faith effort to achieve bipartisan support of a global warming measure. It called for study of the phenomenon, development of a database and the regulation of emissions by the EPA. It was a highly flexible system with exemptions sold by auction. As such proposed legislation goes it is less onerous to industry than most of the other proposals, which is to be expected.

In 2005, after his proposed legislation failed, he seemed to swing leftward and called for flat-out mandatory limits on greenhouse gas emissions.

He has most recently swung to the right calling for no regulation but at the same time the institution of a system where permission to exceed prescribed levels (or environmental credits) is bartered. He obviously pushed his proposal somewhat rightward to appease his base but I am unclear about the details of his current thoughts on the subject. His website is no help here, but in his Portland speech he seemed to be somewhat hearkening back to the Climate Stewardship Act of 2003. What exactly is his “free market solution”? It sounds like something to appease both sides which isn’t necessarily bad, depending on the as yet unclear substance. The League of Conservation Voters had a similar response, commending the rhetoric but wonder what precisely he proposed.

A cornerstone of his policy is heavy subsidies to the nuclear energy industry with greatly increased reliance on this energy source. Obama seems equivocal about this but McCain as an ardent supporter of nuclear energy.

He clearly disregards all the pseudoscience about there being no global warming and accepts the judgment of science on the subject. It appears as if he is struggling for a way to address the crisis without alienating his base, which consists in substantial part of industrialists and libertarian leaning people against regulation of any sort. This, coupled with his recent nearly perfect record of voting with the administration on environmental issues, makes it almost impossible to guess what he might actually do as president. The words have always been there but he does not seem to feel that this is a paramount issue, at least to the extent that his voting record is the measure.

This Climate Stewardship Bill was introduced during the period when he seems to have gained much of his “maverick” reputation, the first term of the Bush administration. In the second term (and the last year of the first) there was no significant deviation from the dictates of the administration. After 2003 he seems to have diminished his efforts with this legislation although it was twice again introduced.

Last I will mention the statewide wilderness bill. But first I’d like to call attention to a December 2006 article by Mr. Connelly in which he said that the McCain 2000 run at the nomination presented McCain as a moderate Republican, a person with whom Connelly had a great deal of sympathy (except in the area of foreign policy where where he was referred to as a over zealous militarist). Since then Mr. Connelly acknowledges that Senator McCain has reformulated himself as a lockstep administration proponent. Mr. Connelly’s view on McCain as an environmentalist seem to be based entirely his now discarded 2000 to 2003 manifestation. If you are willing to disregard particular periods of Senator McCain’s public service you can characterize him as almost anything. I’m trying to get some sort of overview.

Back to the wilderness bill. Senator McCain admired Mo Udall and his efforts to preserve the wilderness. He worked for bills championed by Udall in 1984 and 1990. He has voted for a number of wilderness bills and other environmental matters. This is a little misleading though as many of these bills, are free passes to get a higher environmental rating. For example Washington’s Wild Sky Wilderness bill, after getting scaled down and massaged, passed the Senate unanimously. Senator McCain’s environmental credits are chronicled at the Republicans for the Environmental Protection website. On the other hand Senator McCain would eliminate any ban on new roads in wilderness areas and, among other things has many times opposed significant bills for funding for wilderness areas and national parks. His environmental failings are chronicled on sites such as the Sierra Club.

The Sierra club of course rates him the worst there is in Congress on environmental issues. This is based on his recent voting record, or lack of a voting record. He has failed to vote on myriad environmental issues since beginning his campaign. He did this of course to avoid alienating interest groups,  to give him campaigning room. While not particularly commendable, this would somewhat level the playing field with Obama, who has a rather sparse voting record because of his junior status as a senator.

The League of Conservation Voters is an established collection of environmental groups, which endorsed McCain is the 2004 Arizona senatorial election. It confirms that in 2007 McCain ducked out of every single critical envornmental vote. There apparently were 15, which is a lot of ducking.  LVC also gave him a zero for that period which should help resove some of Mr. Connelly’s questions about the Sierra Club’s rating of him but the LCV gives him a lifetime rating of 26 which means little until compared with Obama’s 86.  LVC’s lifetime rating puts McCain relatively low among Republicans on environmental issues.

McCain’s strength seems to be his forthright calls to do something about global warming.  When many Republicans would not say a thing against a president who refused to accept very clear scientific conclusions, McCain stepped up and said the evidence was irrefutable.  He however did not establish a voting record that would separate him from mainstream Republican positions defined by the administration.

My sense of this is that his environmental sentiments are sincere but they are not terribly high among his priorities.  The issues on which he has an unwavering voting record are any legislation against abortion rights and any legislation favoring expansion of the military or its adventures.  There is very little deviation in these areas.  On environmental issues more often than not industrial interests seem to prevail.