14 January 22
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Anti-abortion forces are campaigning to protect the filibuster and crush voting rights — and Democrats may be content to let them win.
The right-wingers promoting the filibuster have been fully transparent about their goal: They want to block a federal voting rights law so they can elect more anti-choice politicians and to protect the Supreme Court’s conservative supermajority that’s threatening abortion rights. It’s one more piece of evidence that defending the filibuster isn’t about preserving a rarified legislative tradition — it’s all about rigging the game to maximize conservatives’ power.
So far, some Democrats seem content with allowing conservatives to win the argument and are refusing to end the filibuster — while other party lawmakers are considering weaker rule changes that might not do anything to help Democrats actually pass a voting rights bill.
Last year, the Susan B. Anthony List (SBA List) helped launch the Election Transparency Initiative, with the stated goal of blocking Democrats from passing a national voting rights bill that would undo new Republican voter suppression laws around the country. Central to that effort: defending the filibuster, the Senate rule requiring 60 votes to advance most legislation.
In a press release announcing the initiative, the SBA List said the effort would include opposing H.R.1 — the strongest voting rights and democracy reform bill that Democrats have considered — and “mounting a vigorous defense of the filibuster and current Senate rules governing the reconciliation process, so as to prevent the worst of the pro-abortion Democrat agenda: unilaterally passing H.R.1. and expanding the Supreme Court.”
According to Pew Research survey data from last year, roughly six in ten Americans believe abortion should be legal in all or most cases.
In recent months, the Election Transparency Initiative has been running ads pressuring corporate Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona — the two Democrats who have publicly opposed filibuster reforms — not to allow any changes to the filibuster.
“For a century the filibuster has been a bedrock senate tool ensuring bipartisanship,” says one video ad from the Election Transparency Initiative. “Ending it means more dysfunction. Thankfully, Sen. Joe Manchin pledged to protect the filibuster, despite partisan pressure to cave. If Manchin sides with liberal elites to weaken the filibuster with carve-outs for Democrats' priorities, he would violate the trust of voters. Tell Manchin: Keep your promise. Protect the filibuster.”
A similar version has aired recently on West Virginia radio stations.
An Arizona ad from the group says: “Congress is broken and extreme politicians want to make it worse by abolishing the senate's 60-vote filibuster rule. Sen. John McCain knew better and pledged preservation of the filibuster to ensure bipartisan cooperation. Thankfully Sen. Kyrsten Sinema has promised to honor McCain's legacy and protect the filibuster. But if Sinema votes to eliminate or weaken the filibuster, she would be just another hypocritical politician.”
Manchin and Sinema, the Democratic Party’s rotating villains of choice for the Biden era, have both publicly resisted calls to end the filibuster, arguing that Senate Democrats and Republicans should learn to work together instead — a fantasy that plays into the hands of groups like the SBA List that want to eliminate abortion access and restrict voting rights as well as corporate lobbyists who want to prevent Democrats from passing any bills that could threaten their clients’ profits.
With the GOP blocking voting rights legislation all of last year, Democrats are now once again considering a number of potential filibuster reform options, with President Joe Biden imploring them on Tuesday to change the rules “whichever way they need to be changed to prevent a minority of senators from blocking action on voting rights.”
It’s not clear yet whether Democrats can win over Sinema or Manchin, even though the West Virginia senator backed filibuster reforms a decade ago. And some of the more limited filibuster reform ideas Democrats are discussing might not even functionally end the GOP’s legislative blockade and help to pass a voting rights bill — a reminder that Democratic lawmakers are much more comfortable failing the public than the donor class and are fine with Republicans setting policy.
“A Vigorous Defense Of The Filibuster”
The SBA List last year helped create the Election Transparency Initiative, helmed by Ken Cuccinelli, a former Virginia attorney general and abortion rights opponent who served as an immigration official in the Trump administration.
While the initiative was announced as a joint effort between the SBA List and another conservative group, the American Principles Project, state incorporation records show the SBA List is acting as the group’s fiscal sponsor, registering the Election Transparency Initiative as a fictitious name in Virginia.
Ad buy filings with the Federal Communications Commission name SBA List officials — president Marjorie Dannenfelser and chairman Jane Abraham — as the leaders of the Election Transparency Initiative.
The SBA List has been extremely open about why it created the Election Transparency Initiative and why it’s opposing efforts to reform or eliminate the filibuster: The organization wants to block federal voting rights legislation in order to protect new restrictive state voting laws, with the point being that it will be easier to elect more anti-abortion lawmakers.
They also want to make sure Democrats don’t try to add seats to the Supreme Court, whose 6-3 conservative supermajority could soon overturn the court’s landmark 1973 abortion decision, Roe v. Wade.
Keeping the filibuster in place so that bills can’t pass by a simple majority vote would also make it impossible for Democrats to pass existing legislation to codify Roe as a federal law — something Barack Obama had pledged to do in his first act as president. The Women’s Health Protection Act legislation currently has 48 Democratic cosponsors, with the only holdouts being Manchin and Pennsylvania Sen. Bob Casey.
To be clear, it’s not as if the SBA List has any kind of ideological affection for the filibuster or Senate rules: When Republicans eliminated the filibuster for Supreme Court nominees in order to confirm Justice Neil Gorsuch, the SBA List issued a press release praising the move.
“Today the Senate voted to confirm Judge Neil Gorsuch as the next U.S. Supreme Court Justice,” the organization wrote. “The vote comes one day after Majority Leader Mitch McConnell moved to change the procedural rules of the Senate and end the Democrats’ filibuster of President Trump’s nominee.”
“The swift fulfillment of President Trump’s commitment to appoint pro-life Supreme Court justices is a tremendous win for the pro-life movement,” Dannenfelser added in the release.
While Manchin and Sinema pretend that keeping the filibuster encourages interparty cooperation and calling for voting rights legislation to be passed in a bipartisan manner, anti-abortion activists have already admitted their campaign to protect the filibuster is about ensuring that Democrats cannot pass a voting rights bill at all or try to undo the GOP’s Supreme Court supermajority.
It’s a much more honest approach than what gets said by corporate lobbying groups like the U.S. Chamber of Commerce, which has also opposed filibuster reform because the rule serves to protect business interests, but has instead insisted that the rule encourages lawmakers “to build consensus and encourage collaboration.”
As the Chamber wrote last year, “Only in Washington could getting 60 out of 100 people to agree feel like an insurmountable obstacle… Issues of national importance deserve the time, thoughtfulness, and deliberation that the filibuster provides.”
That’s the same kind of spin you often hear from Sinema and Manchin.
“Smaller-Scale Ideas”
Although Manchin and Sinema are still making discouraging statements about the idea of reforming the filibuster, Democrats have decided they want to take another shot at passing a voting rights bill — so they are once again discussing potential filibuster reform proposals.
Unfortunately, they aren’t just talking about eliminating the filibuster, which should not exist in any way.
On Tuesday, Politico reported that some of “the smaller-scale ideas” that Senate Democrats are debating “may not fully overcome the GOP's staunch opposition to the elections bill.”
There is no point to Democrats spending time on an effort to modify the filibuster if it doesn’t allow them to pass legislation. The whole debate over whether Democrats should end or reform the filibuster — which has gone on for an excruciating 12 years now — is proof that Democrats are afraid of being able to govern. They want to retain their excuse for continually failing to pass any promised legislation that would negatively affect their donors.
Some of the Democrats proposing more limited reforms backed stronger filibuster changes a decade ago.
For instance, Politico recently reported that Sen. Jeanne Shaheen (D-N.H.) “said she wants to put the onus on the minority to put up 41 votes to stop legislation rather than on the majority to find 60 votes to advance legislation. She'd also like to eliminate the ability of the minority to block bills from even being debated on the Senate floor. Those reforms probably wouldn’t be enough to allow elections reform legislation to pass given unified GOP opposition, but would chip away at the minority’s power.”
In early 2010, however, Shaheen led an effort to fundamentally gut the filibuster — proposing that the 60-vote threshold to end debate on legislation drop to 51 votes after just a few days of debate.
The media has also completely memory-holed Manchin’s own past support for filibuster reforms, even as he’s emerged as the public face of Democratic opposition to changing filibuster rules.
Politico wrote Tuesday that “Manchin has voted against every rule change along party lines since he came to the Senate in 2010.”
That’s not accurate: In 2011, Manchin co-sponsored and voted in favor of two bills to reform the filibuster, neither of which won any Republican support.
This information is still on Manchin’s Senate website — included in a press release in which Manchin declared: “West Virginians deserve a government that works for them, and they are understandably frustrated with the way things get done — or don’t — in Washington.”
A decade later, Democrats still can’t get things done in Washington, even with full control of Congress — thanks to Manchin, Sinema, and every other party lawmaker who are keeping the filibuster in place like conservatives and anti-abortion zealots want.
'A new charge against alleged rioters is likely as far as the Justice Department can go short of indicting a politician or elected official, experts said.' (photo: Getty)
A new charge against alleged rioters is likely as far as the Justice Department can go short of indicting a politician or elected official, experts said.
Stewart Rhodes, the 56-year-old founder of the Oath Keepers, and ten other affiliates of the far-right military group, were charged Thursday with seditious conspiracy in a superseding indictment after prosecutors said they sought to “oppose by force the execution of the laws governing the transfer of presidential power” from former President Donald Trump to Biden.
This charge, which means a maximum sentence of 20 years in prison, is by far the most serious yet lobbed at anyone in connection with organizing the riot, and is likely as far as the Justice Department can go short of indicting a politician or elected official, experts said.
“I’m surprised but not shocked,” Noah Feldman, a Harvard legal historian, told The Daily Beast about the sedition charges on Thursday. “It’s a hard charge to prove. And it has this distinctive history of being used by governments who overreached in prosecuting their citizens.”
Legal experts canvassed by The Daily Beast explained that in order for the Department of Justice to secure the indictment, they had to convince a grand jury that militia members may have had an agreement to overthrow the government or prevent the execution of a U.S. law by force. The charge also requires proof of at least one overt act of trying to further the conspiracy.
“Seditious conspiracy is a big deal. The last time it was charged was in 2010. The seal has been broken,” Palm Beach County State Attorney Dave Aronberg tweeted Thursday.
To put it simply, former federal prosecutor Neama Rahmani told The Daily Beast, the “seditious conspiracy” charge and what most people understand as insurrection are “effectively the same.” The only difference, he noted, is that sedition is an unlawful agreement, while insurrection is a substantive act.
“The Department of Justice must have evidence of an agreement, such as planning, coordination, and direction, particularly in messages from Rhodes or statements by cooperating defendants” to prove the charge, Rahmani said.
The indictments unsealed on Thursday do, in fact, add new evidence to already-substantial troves of chat logs prosecutors say show detailed planning between Oath Keepers members.
The Capitol was also breached on national television—and resulted, directly or indirectly, in five deaths and injuries to hundreds of law enforcement officers trying to protect the building. And even though there is no indication that Rhodes physically entered the building, prosecutors allege he maintained control over the Oath Keeper group throughout the whole insurrection, and is seen on video assembling them outside the Capitol.
“The purpose of the conspiracy was to oppose the lawful transfer of presidential power by force, by preventing, hindering or delaying by force the execution of the laws governing the transfer of power, including the Twelfth and Twentieth Amendments to the Constitution,” the indictment says.
The indictment adds that beginning in Nov. 2020, Rhodes began “disseminating messages on encrypted applications that encouraged co-conspirators” to oppose the transfer of presidential power to Joe Biden.
“We aren’t getting through this without civil war. Too late for that. Prepare your mind, body, spirit,” Rhodes allegedly wrote in one message to his other co-conspirators. “It will be a bloody and desperate fight. We are going to have a fight. That can’t be avoided.”
Rhodes has repeatedly denied his involvement in the riots, and there is no evidence he entered the Capitol building that day. In a statement Thursday to The Daily Beast, a defense lawyer for Rhodes and an alleged co-conspirator slammed the new charges—and said they were filed without “any new facts alleged.”
“Faced with criticism from leading Democrats for not supporting their Leftist narrative, the prosecutors have just slapped a new label on the false allegations already made,” he said. “But I see no facts that would support the new charges.”
While the new charges may serve to satisfy Americans clamoring for more cases against not just people caught on video committing violence, but those who helped set the stage for the riots, landing convictions won’t be easy.
After all, Feldman said, the sedition charge means showing “an element of intent to overthrow the government”—even as the Oath Keepers have long falsely maintained they are themselves guardians against some sort of conspiracist takeover of the U.S.
“That’s not clear, that interfering with an election result is the same as overthrowing the government,” Feldman told The Daily Beast of the riots, noting that while they turned out to be violent, the defendants will almost certainly argue that was not their intent.
But the charges also come in the context of a House probe that has seen subpoenas of a slew of lawmakers, politicians, and other public figures. They may not satiate progressive calls for a more wholesale government legal war on those who stoked conspiracist violence, but it arguably represents a step in that direction.
“We won’t see anything more serious until prosecutors indict former President Trump or members of his administration,” Rahmani said.
President Biden with Sen. Kyrsten Sinema. (photo: Getty)
Why it matters: Biden and other Democrats want the Senate's filibuster rules changed in order to pass voting rights legislation.
What they're saying: A White House spokesperson said Biden had "a candid and respectful exchange of views about voting rights" with Manchin and Sinema, according to a pool report.
- Representatives for Manchin and Sinema did not immediately respond to Axios' request for comment, but both have long opposed abolishing 60-vote Senate filibuster.
- On Thursday, Sinema said such a move would worsen the "disease of division" in the U.S. and called changing the rules "a perilous course of action."
Go deeper: Dem Senate candidates rally against "sellout" Sinema
Russian tanks taking part in drills at a firing range in the Rostov region, near the border with Ukraine, on Wednesday. (photo: AP)
In a third round of talks on Eastern European security this week, both Kremlin and American officials sounded an increasingly pessimistic note.
One senior Russian diplomat said that talks with the West were approaching a “dead end,” while another said the Kremlin would wait until it received written responses to its demands from Washington and from NATO next week before deciding how to proceed.
It was clear that Russia’s next move would be up to President Vladimir V. Putin, who, his spokesman said on Thursday, was being briefed regularly this week on negotiations with the West.
Protesting mandates in San Francisco last week that require city employees to be vaccinated. (photo: Jim Wilson/The New York Times)
The term isn’t over yet, but it’s already looking like this year could be a bonanza for conservatives — and not just because of the high-profile cases that have snapped up most of the attention. I’ve written about how the justices could limit or overturn Roe v. Wade, the 1973 case that established a constitutional right to abortion, and expand gun rights for the first time in over a decade. But there are several other, less flashy cases that could also have sweeping effects on Americans’ lives.
It seems very likely, for instance, that the justices will continue to erode the barrier between church and state by requiring states to fund religious schools in programs where they already support non-religious private schools. The conservative justices could also impede government agencies’ ability to act independently of Congress by giving more power over their decisions to the conservative-leaning federal judiciary.
“This term is a gift basket to the conservatives who wanted to elect Trump so he could appoint Supreme Court justices,” said Leah Litman, a law professor at the University of Michigan. “It’s becoming clear that the conservative justices are interested in moving the law on a bunch of major issues that have huge practical consequences for how our government works and for people’s lives.”
Church-state separation will likely continue to be eroded
In some rural parts of Maine, children’s tuition at non-religious schools is covered by state funds. This provision doesn’t apply to religious schools, but that might be about to change. Two families who send or want to send their children to religious private schools sued the state, saying that they should be able to get reimbursed for tuition at those schools, too. They argued that if Maine paid for kids to attend some private schools, excluding religious schools was unconstitutional.
At the oral argument on the case in December, the conservative justices seemed inclined to agree with the families. Lawyers for Maine and the Biden administration contended that the program was intended to provide a handful of children in isolated parts of the state with something resembling a public school education, crucially without fostering a religious worldview. But several of the justices appeared unconvinced. “All [the families] are asking for is equal treatment, not special treatment,” said Justice Brett Kavanaugh. “They’re saying, ‘Don’t treat me worse because I want to send my children to a religious school rather than a secular school. Treat me the same as the secular parent next door.’”
Lee Epstein, a political scientist at Washington University in St. Louis who studies the Supreme Court, told me that she thinks that the Maine families will easily prevail. Along with Eric Posner, a law professor at the University of Chicago, she analyzed the Roberts court’s track record on religious liberty and church-state separation cases and found that the justices sided with religious organizations in over 80 percent of cases, a stunning rise from about 50 percent in previous courts since 1953. “This court is ruling with religious plaintiffs at an incredibly high rate,” she said. “I see this case as just continuing with that trend.”
A victory for the families in Maine would also continue a long winning streak for religious plaintiffs in the more specific realm of school funding. Several cases in recent years have centered on funding for religious schools, and the court has chipped away at states’ ability to prevent religious schools from receiving taxpayer money. In 2017, for instance, a 7-2 majority — including two of the liberal justices, Elena Kagan and Stephen Breyer — ruled that Missouri couldn’t exclude a religious school from a public grant for playground resurfacing. And three years later, in 2020, a 5-4 decision effectively gutted state constitutional provisions that bar public funds from going to religious schools, by ruling that Montana could not exclude religious schools from its private school scholarship program. Now, the Maine families and their supporters are pointing to those two cases as precedents.
The court’s path on these cases has, up until now, embodied the incrementalism that Chief Justice John Roberts appears to prefer. The first decision was incredibly narrow — the justices were clear that it applied only to state grants involving playground resurfacing — but it left the door open for more far-reaching cases. Each subsequent case has built on the last, with increasingly broad implications. The Montana case opened the door for legislators in more states to create programs that benefit religious schools. Now, depending on how the justices rule, the Maine case could open a new pathway for religious schools to receive public funding.
That, in turn, could lead to even more extreme cases — and a possible abandonment of the gradualism that Roberts prizes, depending on how the other conservatives are feeling. “Every time they reach one of these decisions, they are shifting the Overton window and inviting conservative advocates to ask them to go further,” Litman said. And there are plenty of signals that there’s an appetite for a sharper turn to the right. Just last year, the Republican-appointed justices indicated that they were willing to reconsider a longstanding precedent that limits constitutional protections for religious conscience.
Depending on how this term’s case turns out, and where the justices turn next, this line of cases on schools could affect even more hotly contested religious liberty disputes, like whether publicly funded charities or business owners who serve the general public can discriminate on the basis of their religious beliefs. “We might end up with a situation where states are required to fund programs that discriminate on the basis of race or sexual orientation,” Litman said.
The court could start curtailing the power of the executive branch
Some cases that make their way to the Supreme Court are easily comprehensible to non-lawyers — but most are not. That doesn’t mean, though, that they don’t have an important impact on Americans’ lives, and that’s particularly true of cases involving the power of the executive branch. This term, two of those seemingly sleepy disputes could significantly weaken the power of the federal agencies and give a huge amount of veto power to federal judges, many of whom are highly conservative.
Admittedly, the specifics of the cases don’t make for riveting reading material. In one, which the Supreme Court heard in November, hospitals are challenging the federal government’s system for calculating Medicare reimbursements. In the other — technically four cases bundled together and scheduled for argument in late February — GOP-controlled states, energy companies and coal mine operators are arguing that an Obama-era plan to fight climate change isn’t authorized under the Clean Air Act.
But underneath those dry-sounding disputes is a long-running battle over what the executive branch is actually allowed to do. In the case involving the hospitals, the justices could, for instance, reconsider a judicial doctrine first established in a 1984 case involving the energy company Chevron, which gives federal agencies a lot of wiggle room to interpret the laws they’re charged with carrying out. The idea behind the Chevron doctrine is that Congress can’t anticipate all of the minute problems and wrinkles that crop up as laws are enacted, and agencies’ experts are capable of making reasonable decisions in situations where the law is ambiguous — and perhaps, most importantly, are in a better position to make those calls than judges. The climate change case, meanwhile, involves a dormant legal doctrine called “nondelegation,” which limits how much power Congress can delegate to federal agencies. In recent years, conservative justices — especially Justice Neil Gorsuch — have been clear about their desire to curtail or overturn the Chevron doctrine, and bring back the nondelegation doctrine.
It’s hard to overstate the stakes of these two cases at a moment when much of the country’s actual governing — for better or worse — happens in the executive branch. Environmental issues, workplace safety, health care, employment discrimination and more are all handled by various administrative agencies. Moreover, with Congress in a perpetual state of logjam, it’s hard to imagine lawmakers responding to these potential rulings by writing laws with more specific instructions to those agencies — if that’s even possible. “There are a lot of things that Congress can’t anticipate or might not be worth their time,” Litman said. “Do you really want Congress trying to figure out something like the proper level of a particular chemical that can be in buildings?”
So the practical impact of overruling the Chevron doctrine or reimposing the nondelegation doctrine would be to give judges more influence over federal regulations. “If you look at it skeptically, this would amount to judges giving themselves more power,” Epstein said. Given the conservative lean of the federal judiciary, that would likely lead to a lot of regulations being struck down — which would be a blow to the power of the presidency in general but would probably have the biggest impact on Democratic presidents.
None of these cases have gotten a lot of attention so far, which could make it easier for the court to do something fairly dramatic without getting a lot of blowback. And given how technical the cases involving federal agencies are in particular, the court might not have to worry about going against public opinion anyway. But for conservative advocates watching the courts, these cases have a lot of significance, which means this term could mark an even sharper turn to the right than the non-lawyers among us may be expecting.
Mourners attend the funeral of Omar Abdalmajeed As'ad, 80. (photo: Mohammad Torokman/Reuters)
State Department spokesman says his office has been in touch with Omar As’ad’s family following fatal heart attack he suffered after he was allegedly beaten while in IDF custody
According to Omar Abd al-Majid As’ad’s family, Israeli soldiers tied his hands and beat him after the arrest in his hometown of Jiljilya, before apparently releasing him from detention.
Before As’ad’s arrest, the Israeli army had conducted intensive patrols and random stops in the village over the past two days, culminating in a predawn raid on Wednesday morning, Jiljilya mayor Fouad Qattum said in a phone call.
“More than 50 soldiers entered the village early this morning, patrolling around the village and between the homes. Amr As’ad, the martyr, was returning home from his relatives and they dragged him out of his car,” Qattum said.
After being detained in an empty house, As’ad, who suffered from diabetes and other chronic conditions, apparently suffered a heart attack, Qattum said. It was not clear if the soldiers were present when he collapsed.
As’ad was found in Jiljilya early Wednesday morning with a plastic zip-tie still around one of his wrists. Such zip-ties are regularly used by Israeli soldiers during arrests in the West Bank.
“The soldiers just left him there. It was only by coincidence that young men from the village happened to spot him there hours later,” Qattum said.
He was taken to a local Palestinian health clinic before being transferred to the Palestine Medical Center in Ramallah, where he died, the Palestinian Authority health ministry said in a statement.
The Israel Defense Forces said Military Police opened an investigation into As’ad’s death. In a statement, the military confirmed that As’ad was arrested overnight, but did not comment on the Palestinian allegations of violence.
“The Palestinian was arrested during an operation by IDF troops after he refused a security search. The detainee was released later that night,” the military said.
Asked for comment on the matter during the daily press briefing, US State Department spokesman Ned Price began by confirming that As’ad was an American citizen.
“We have been in touch with Mr. As’ad’s family to express our condolences about this tragedy. We’re providing all of the consular assistance to the family at this time,” he said.
“We’ve also been in touch with the government of Israel to seek clarification about this incident, and as you may have seen the Israeli Defense Forces have indicated that there’s an ongoing investigation into the matter.”
“We support a thorough investigation into the circumstances of this incident,” Price added.
The military conducts arrest operations on a nightly basis, often arresting tens or dozens of Palestinians on suspicion of involvement in terror activity.
Tensions have been rising between Israel and the Palestinians across the West Bank and Gaza over the past month, including a wave of terror attacks that so far have taken the lives of two Israeli civilians and wounded several others.
Piper Vargas lives six miles from Orlando's coal ash landfill, with her husband Oscar and sons Max, 8, right, and Diego, 5, left. She worries about inhaling dust particles carried on the wind from the landfill, and contamination of the groundwater. (photo: Amy Green/WMFE)
The mound is what's left over from the decades of coal burned at the Stanton Energy Center, a sprawling power-generation complex nearby whose cylindrical cooling towers send curls of steam into the clouds.
Piper Vargas thinks a lot about the coal ash landfill. Vargas fears the dust particles from the landfill carried by the wind to her tidy blue lakeside home six miles away, and what inhaling them might do to her family, especially her two young sons. She worries that toxic elements in the coal ash might seep into the area's vital groundwater.
"My mind starts to go to those places like, 'Why do we still live here?,'" says Vargas, 38, a stay-at-home mom who homeschools her kids. "They're not cleaning that up. Or they're still burning (coal) right now. They still have years left of burning it."
Like many electric utilities, the Orlando Utilities Commission (OUC), which operates the energy center, is moving away from burning coal. It plans to stop coal-fired power generation by 2027 and transition to net-zero carbon emissions by mid-century, mostly through solar energy. But nearly all utilities that burned coal, including OUC, face questions about the potential risks from years of buried coal ash, one of the nation's largest industrial waste streams.
For generations, the residue from combusting coal for electricity was dumped into pits, many without adequate liners to protect nearby groundwater. Coal ash contains toxic contaminants like mercury, cadmium and arsenic that can pollute the air and seep into groundwater, and that are associated with cancer and other illnesses.
In 2015, the Environmental Protection Agency adopted the first national regulations for coal ash. They applied to existing and new coal ash sites, but exempted landfills that had already closed. As a result, the rule may have left as much as half of all coal combustion waste ever produced in the United States unregulated by EPA, including most of what's buried on the OUC property, environmental groups estimate.
Now, environmental activists want the EPA to close loopholes they say were left by the 2015 rule. They want utilities to clean up contamination caused by ash dumping that occurred before the rule went into effect. They also want the agency to enforce the 2015 rule more aggressively and to deny utilities' requests for cleanup exemptions.
"We are in danger of leaving half the ash unremediated," says Lisa Evans, a senior attorney specializing in hazardous waste law at Earthjustice, a national environmental law organization. "It's not being monitored and therefore, it's not triggering corrective action requirements of the rule. So you're going to have this poisonous legacy, which could last permanently at many, many sites."
EPA officials say they are aware of ongoing concerns about the coal waste. And Tuesday, the Biden administration initiated its first steps toward enforcing its ash disposal regulations.
"I've seen first-hand how coal ash contamination can hurt people and communities," said EPA Administrator Michael S. Regan, who oversaw the regulation of coal ash as North Carolina's top environmental regulator before coming to the EPA last year. "Coal ash surface impoundments and landfills must operate and close in a manner that protects public health and the environment. Today's actions will help us protect communities and hold facilities accountable."
EPA's proposed actions, however, do not address the problem of ash that was dumped and buried before the 2015 regulations went into effect, environmentalists said.
When waste isn't considered waste
Over the last century, as the U.S increasingly relied on coal to power its economy, hundreds of power plants produced billions of tons of ash and other combustion wastes. All that coal burning waste had to go somewhere.
Utilities dumped it into watery, unlined pits called coal-ash ponds, and piled it office-tower high in landfills. They sent it to public works departments to spread on icy winter roads, used it as a dirt alternative at construction sites for embankment or structural fill, and disposed of it at old coal mines. The industry found commercial uses for some power plant waste products, including putting the ash into cement or concrete, or converting sludge from smokestack scrubbers into a form of gypsum used to make drywall.
For 28 years, OUC dumped much of its coal ash into its main landfill, covering about 90 acres. That dumping stopped on Aug. 28, 2015, just 52 days before the Obama-era national regulations went into effect. The maneuver exempted the landfill from the new requirements for environmental monitoring and, if contamination were found, a requirement to take corrective actions. Those standards only apply to new dumping areas at the Stanton Energy Center, next to the closed landfill.
OUC isn't unique, according to environmental watchdogs. They say OUC took advantage of a widely used loophole written into EPA's Coal Combustion Residuals Rule, passed in 2015, near the end of the Obama administration after decades of battles between environmentalists, industry and the EPA.
Coal ash disasters spurred the 2015 rules
EPA's 2015 coal ash regulations were spurred by major disasters. One was near Knoxville, TN on Dec. 22, 2008, when a levee along a mountain of sodden ash suddenly broke loose from the Tennessee Valley Authority's Kingston power plant. Some 300 acres were smothered. The ash spilled into two rivers. Three homes were destroyed, dozens more were damaged. In the years since, hundreds of cleanup workers fell ill, and many have died.
Then in 2014, tens of thousands of tons of coal ash spilled from a Duke Energy power plant into the Dan River at Eden, NC, causing damage for 70 miles downstream.
For decades, EPA had exempted coal ash from its "hazardous waste" definition under the nation's main law for regulating hazardous and solid waste, a result of an amendment in 1980 by the late U.S. Rep. Tom Bevill, D-Alabama. Bevill was a 15-term congressman known as the "King of Pork" for his ability to draw federal dollars to his home state. He also delivered for the fossil fuel industry.
In Congressional testimony at the time, Bevill said his amendment sought to curb EPA rules on fossil fuel wastes in order to protect the coal and electric utility industries from "unnecessary burdens" and high costs, and to "encourage coal as a primary source of domestic energy." Fossil fuel wastes, he argued, were not a "substantial hazard" to human health or the environment.
Thirty five years later, despite having found dozens of examples across the country where coal ash had or likely contaminated groundwater, polluted lakes or caused fish deformities, the EPA in 2015 sided with the coal and electric utilities industry, and again declined to deem coal-burning wastes as hazardous.
EPA officials concluded that regulating coal ash as a solid waste — a less rigorous category — would be enough to prevent ash pile collapses, blowing ash dust and groundwater contamination. EPA officials also said their preferred strategy would give utilities "a practical approach" to managing its massive collection of coal burning wastes.
States' regulation of coal ash is "a mixed bag"
The EPA has effectively left enforcement of its coal ash regulations to citizens, or states, resulting in a hodgepodge of contradictory and confusing activity.
In some states, like North Carolina and South Carolina, essentially all ash ponds are being drained and dug out, after the Southern Environmental Law Center sued. The toxic sludge is sent to modern landfills with protective liners. SELC and its partners have won other victories for ash pond cleanups in Virginia and Tennessee.
In other states, it's been a mixed bag, with utilities being allowed to merely drain and cover their ash ponds, a practice known as "cap-in-place."
The level of cleanup seems to depend on how much noise residents near coal plants make, and whether environmental lawyers like South Carolina's Frank Holleman, a senior attorney with SELC, get involved.
"The only way this becomes a public controversy is either a local community group gets concerned and brings it to the attention of some environmental legal advocacy group, or the legal advocacy and environmental group learns about the problem and checks around and sees a local community that has a vague notion but isn't quite sure what's going on," he says. "Or you have a catastrophe."
Sometimes the catastrophe is sudden, like what happened to the Kingston TVA power plant, but often, the damage is so slow that it escapes notice until it's too late, Holleman says.
If you burn coal, its ash will get airborne
Ash blowing into neighborhoods goes away when plants shut down, and ash piles are covered and capped. But coal still provides about 20 percent of the nation's electricity, and that means ongoing production and storage of coal-burning wastes.
Kristina Zierold, associate professor of environmental health sciences at the University of Alabama at Birmingham, found that children living near coal ash storage sites in Kentucky have a greater incidence of health issues such as asthma and neurobehavioral problems, compared to children living in areas without such sites.
"Dust does come off these landfills and surface impoundments," Zierold says. "You can see it. And it does affect the community surrounding them."
All eyes are on the Biden EPA
The Obama coal ash rule required utilities to monitor and report on groundwater conditions. As a result, a better understanding of the scale of coal ash contamination across the country has emerged.
In a 2019 report, the Environmental Integrity Project and other advocacy groups analyzed monitoring data utilities had posted on their websites. The report found unsafe levels of toxic contaminants in groundwater linked to more than nine out of every 10 coal-fired power plants with monitoring data.
In all, unsafe levels of contamination were reported in groundwater at sites in 39 states and Puerto Rico. Illinois has the most power plants with polluted ash storage sites with 16, followed by Texas, Indiana, Kentucky, Michigan, North Carolina and Missouri, all with more than 10.
Florida had nine power plants with polluted ash storage sites, including at the Stanton Energy Center, the report found.
Industry and environmentalists sued EPA after the agency adopted its 2015 rule, which is still in court. The industry has opposed what it calls a "one size fits all" approach and petitioned the EPA for changes the Trump administration made, such as extending compliance deadlines and allowing utilities to request exemptions.
The Edison Electric Institute, a trade group that represents investor owned utilities, maintains that electric companies are managing coal ash "in ways that put safety first, protect the environment, minimize impacts to the community, and manage costs for customers."
Institute spokesman Brian Reil deferred questions about coal ash to Jim Roewer, the executive director of the Utility Solid Waste Activities Group, an association of more than 131 utilities, and the industry's primary spokesman on coal-burning wastes. Roewer did not return repeated requests for comment.
Lawyers from the utilities' solid waste group, in writing to the Trump administration in 2017, argued the 2015 EPA rule was too costly and was forcing premature closure of coal-fired power plants. The group asked for "a more balanced" rule that would still prevent adverse effects on health or the environment. Trump's EPA extended compliance deadlines and allowed utilities to request certain exemptions.
With a new administration in 2021 and utilities soon making final decisions on coal ash because of power plant shutdowns and cleanup deadlines, environmental advocates are looking for a much more aggressive stance from the Biden EPA. Environmental groups also want EPA to adequately address a 2018 court ruling they won against the agency that required the closure and cleanup of some 100 additional so-called coal ash ponds left out of the 2015 rule.
For its part, the Biden administration promises to revisit coal ash management in future rule-making, including a proposed rule dealing with legacy ash ponds.
This week, EPA began proposing determinations on 57 requests for deadline extensions for the closing down of unlined coal ash disposal pits. The agency said it was also putting several power plants on notice regarding their obligations to comply with its 2015 regulations.
In announcing its determinations, the agency said it was affirming its view that ash disposal pits or landfills cannot be closed with ash in contact with groundwater. The EPA also said limiting contact between coal ash and groundwater after closure is critical to minimizing releases of contaminants into the environment and will help ensure communities near these facilities have access to safe water for drinking and recreation.
"I wanted them to do better"
OUC, Florida's second-largest municipal utility with 250,000 customers in Orange and Osceola counties, prides itself on having progressively green energy policies. Last year, it announced it would stop burning coal by 2027 and use fossil gas as a bridge to net-zero carbon emissions by 2050, while ramping up solar power and energy storage. It has also constructed a 13 megawatt solar array on the older portion of its coal ash landfill that will generate enough electricity to power 2,100 homes.
Its clean energy plan makes the municipal utility a leader in a state that is uniquely vulnerable to the hotter temperatures, rising seas and other consequences of burning fossil fuels, but that lacks any statewide strategy for transitioning to cleaner energy sources.
But OUC has found ways to limit their cleanup obligations that are commonplace in industry, says Abel Russ, a senior attorney with Environmental Integrity Project, and the lead author of the 2019 national report on coal ash contamination.
Russ says utilities find wiggle room in their interpretations of regulations that require engineering assessments, environmental monitoring, closure plans, and potentially corrective action if groundwater pollution limits are exceeded.
At the Stanton Energy Center, for example, Russ observed that wells used to detect whether the new landfill area is polluting groundwater are more than a half-mile away, and utility consultants have said it would take groundwater "several hundred years" to reach them.
"If that's true, if it takes hundreds of years for the groundwater to get there, they're useless wells," Russ says. OUC spokesman Tim Trudell declined to comment on any of Abel's specific criticisms of how the company has managed its coal ash.
"It's a well-run site," he says of the Stanton Energy Center. "It definitely is, and we still have responsibility with coal. We are going to take that responsibility seriously and continue to do so."
And he adds, "We will continue to monitor that site for as long as it takes."
Yet Vargas still has her fears and she hasn't been alone. A lawsuit filed in 2018 on behalf of the area's approximately 30,000 residents alleged that air and groundwater pollution from the landfill were responsible for a cancer cluster, including pediatric cancers of the brain, blood and central nervous system. Named as defendants were OUC and three home builders that the lawsuit contended had built and marketed the neighborhoods without addressing the risks.
OUC argued that the claims were unsupported by science. The home builders said the plaintiffs lacked grounds to sue. Then the plaintiffs dropped the suit late last year for unspecified reasons.
Vargas was not part of the lawsuit. She became aware of the coal ash landfill about five years ago, near the same time her father died of cancer. The trauma prompted a new interest in health and wellness. Vargas also got involved in an environmental group called Moms Clean Air Force.
"That's when I met another mom here ... who told me about the cancer cases and about the coal ash," she says. And it's when she says she grew more worried about her local utility, OUC.
"I wanted them to do better, right?," she says.
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