01 December 21
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But that is precisely what the court, with its 6-3 conservative majority, looks poised to do. Wednesday’s oral arguments over Mississippi’s law banning abortion after 15 weeks of pregnancy will not really be about “textualist” or “originalist” legal principles. They will be about whether the Constitution protects a woman’s freedom over her own body — a liberty recognized when Roe was decided on Jan. 22, 1973.
I remember that day well, because it was also the day when former president Lyndon B. Johnson died. I was one of the editors of the Michigan Daily, the student newspaper at the University of Michigan, and we had a passionate argument that went late into the evening over which should be our lead story. Should it be legalized abortion across the nation? Or the man who sent tens of thousands of young Americans to die in the Vietnam War?
Most of the female editors saw the historic importance of Roe and understood the impact it would have on women’s lives. Most of the male editors — myself included, I confess — could not see past Vietnam and pushed hard for LBJ. We won, sort of: The paper ended up stripping Johnson’s death across the top of the front page and putting the Roe decision right beneath it, still above the fold, with a boldface two-line headline. For history’s sake, I thought that was the right call.
I was spectacularly wrong. Johnson was indeed a towering figure, but he’d been long out of office and had to die at some point anyway. Roe was like a bolt from the blue, and with it the nation took a giant stride toward treating women as full and equal citizens under the law. The decision’s impact continues to this day — but perhaps not for many days longer.
There are those who claim that Roe is divisive, that the ruling set the stage for years of bitter conflict by recognizing a constitutional right to abortion that cannot be unduly infringed by the states. But I believe that analysis is wrong. What’s truly divisive is abortion itself — an issue on which, for many Americans, there simply is no middle ground.
Some people believe that all abortion is murder and that every pregnancy should be brought to full term. I do not share this view. But for those who do, how could there ever be compromise? What does it matter whether an abortion takes place in the first, second or third trimester, or whether it takes place before or after the point at which the fetus would be viable outside the womb? What is the difference between taking a Plan B pill and having a surgical abortion after 15 weeks? If both are “murders,” how can one be acceptable and one not?
Like most Americans, I do not believe that all abortion is murder. It doesn’t matter whether I think a line should be drawn at viability or how I believe the health and well-being of the pregnant person should be factored in. What matters is that my view, whatever its nuances, can never be acceptable to those who take an absolutist position against abortion.
This is why I see Roe as unifying rather than divisive: It makes a yes-no decision. It sets a baseline that some of us cannot abide but that most of us applaud or can live with. It says that, yes, the Constitution, in its words and its penumbra, does protect a woman’s fundamental right to terminate her pregnancy.
Like all of our constitutionally protected freedoms, the right to choose can be restricted, but not taken away. That has been the status quo for nearly five decades, and the nation has muddled through. But if Roe is reversed — if the court rules, as its most conservative justices have argued, that no protected right to reproductive choice exists — then the political cold war over abortion will flare immediately into a roaring blaze.
If states such as Texas pass laws that effectively eliminate all abortions, those with the means will travel to other states to terminate their pregnancies. Many poor people will risk their health by seeking illegal abortions. Some doctors will most likely risk imprisonment. There will be intense pressure for pro-choice federal legislation, and abortion will be a hot-button issue in every congressional district.
As if our politics needed more heat.
Roe will never please everyone, but it has served the country well. I fear this Supreme Court is foolish enough to throw it away.
Donald Trump. (photo: Elizabeth Brockway/The Daily Beast)
He skipped his classified intelligence briefings for the holidays. And then, after his Jan. 6 briefing didn’t happen, he never got another one, a new CIA book reveals.
That unusual stretch where the sitting president didn’t receive a regular classified briefing is recounted in the latest version of a book published and regularly revised by the Central Intelligence Agency, which describes how spies update presidents on national security matters.
The situation in the waning days of Trump’s presidency was so uncommon that it actually caused concern among some administration officials that Trump was losing touch with reality, as he was getting unhinged advice on domestic issues from Justice Department attorneys and outside counsel that openly advocated rejecting election results.
"There was no certainty that he was getting objective, unbiased information in any other way,” one source familiar with the matter told The Daily Beast. “You couldn't trust that anybody around him was able to get that information to him in that period of time."
Unlike past presidents—who would read their daily intelligence report and occasionally get briefed by a CIA officer—Trump regularly refused to read the text, demanded “killer” pictures, and preferred to get updated in person by his daily briefer.
While past presidents took great interest in having the most up-to-date information on security challenges and foreign intelligence, the CIA book that was updated last month revealed that Trump spent two days a week receiving the latest sensitive information coming in from American spies all over the globe, in sessions running 45 minutes on average.
That came to a halt in late 2020, however, according to the CIA’s “Getting to Know the President” book, written by a revered former inspector general at the agency, John Helgerson.
Trump took a vacation break over the holidays when he traveled to Mar-a-Lago and told his briefer “he would see her later,” Helgerson wrote. The president then went two weeks without that pivotal one-on-one update, unlike his predecessor, former President Barack Obama, who was known to read the daily report even while vacationing in Hawaii.
During that break, Trump and his closest advisors kept busy trying to overturn election results in Arizona, Georgia, Pennsylvania, and Wisconsin by peddling disinformation and supporting conspiracy-laden legal challenges that eventually went bust. There was his infamous phone call demanding that Georgia’s top elections official “find 11,780 votes,” not to mention his despotic attempt to get the U.S. Supreme Court to declare Wisconsin’s election “unconstitutional.”
The White House finally scheduled a briefing when he’d be back in the nation’s capital. Trump was apparently too busy that day—spending Jan. 6 inciting a riot by delivering a speech and calling on his acolytes to “fight like hell” and march on the Capitol building just as Congress was certifying the 2020 election results.
The CIA book says, “the briefings were to resume on 6 January but none were scheduled after the attack on the Capitol.”
Liz Harrington, a spokesperson for Trump’s post-presidential office, pushed back against the CIA’s account with a statement saying, “This is Fake News.”
The break for the holidays and the two-week stretch after the insurrection meant that Trump went without the briefings for nearly his entire final month in office, a pause that experts found unprecedented.
“It’s not unusual to miss one here or there. But it's unusual to go several weeks without a briefing,” said Matthew Kroenig, a former intelligence official who developed strategies to counter China, Iran, North Korea, Russia, and terrorist networks.
“Whether you like him or not, he was the commander in chief. As a nation, we would have been safer if he would have been getting those briefings,” said Kroenig, who is now the deputy director of the nonprofit Atlantic Council’s Scowcroft Center for Strategy and Security.
When asked by The Daily Beast, the CIA wouldn’t answer why Trump stopped receiving briefings during that time. Three former intelligence officials said that scheduling the briefings would have been up to the White House, which was busy during the last two weeks fighting off accusations of an attempted coup and preparing for an impeachment fight.
And unlike past presidents, who continue to get intelligence briefings after leaving office, Trump has remained in the dark post-presidency. President Joe Biden went on record in February saying that his predecessor should no longer receive them, implying that he had made the decision to cut off Trump. A Trump aide, who preferred to remain unnamed, told The Daily Beast a very different story on Tuesday.
“They never got cancelled by Biden, he didn’t cut them off,” the aide said. “President Trump didn’t feel it would be appropriate after leaving so he stopped them. He would have continued to get them if he wanted.”
Helgerson, a career spy who has since retired and was contracted to write the book, declined to provide additional details on the sudden halt in briefings to The Daily Beast on Monday, citing strict limitations imposed by the agency.
The CIA book’s new chapter also described at length how Trump himself posed a challenge for the nation’s intelligence officials, especially at the beginning of his presidency, when he was mired in accusations of suspicious ties to Russia and lashed out against the nation’s surveillance networks.
“ For the Intelligence Community, the Trump transition was far and away the most difficult in its historical experience with briefing new presidents,” the book states. “Rather than shut the IC out, Trump engaged with it, but attacked it publicly.”
A subsequent portion quotes Obama’s outgoing director of national intelligence, James Clapper, saying that Trump was “fact-free” and prone to “fly off on tangents; there might be eight or nine minutes of real intelligence in an hour’s discussion.”
Some national security experts have pointed out that, while Trump stopped receiving the classified updates, many of those surrounding him still did. As Helgerson noted in his revised edition to the book, then-Vice President Mike Pence “was an assiduous, six-day-a-week
Reader” who would often join the president in his brief and spark a thoughtful discussion about pressing matters. Then again, by the end of his presidency Trump had turned on Pence and was notorious for relying on Fox News and Newsmax hosts for a steady stream of unverified information.
Larry Pfeiffer, a former CIA chief of staff who also ran the White House’s Situation Room during the Obama administration, stressed that keeping the president informed during his final weeks in office would have been pivotal. He said the month-long stretch without a briefing was the most alarming detail in the book’s latest update.
“Given how complicated the world is today, and given the kinds of decisions the president should be involved in in the national security arena, I'd be concerned that the president could find himself behind the curve,” he said.
“Iran could have planned some foolish attack, or you could have intel members of the incoming administration acting against current U.S. foreign policy,” he said, making a joking reference to the problems that plagued Trump’s own transition team in 2016.
Two white crosses memorialize Marcos Castro Estrada and Jose Leonardo Coj Cumar, who were fatally shot on the Texas-Mexico border. Photographed in 2014, the crosses at the scene of the killing have since been removed. (photo: Eugenio del Bosque)
A state police marksman unloaded 19 bullets into a speeding pickup, killing two men. Now, depositions unearth startling new details about what happened.
Not far away, another widow, Maria Luisa, set out from the village of Pachay las Lomas to find work. She has yet to return. Her two daughters, the oldest just 12, don’t know how to reach her, according to their grandfather. They never got much time with their father; they were babies when he died. But he also left so that they would have a better life and food on the table.
Nearly a decade has passed since the women’s husbands, Jose Leonardo Coj Cumar, 32, and Marcos Castro Estrada, 29, were fatally shot on the Texas-Mexico border by a state police marksman in a helicopter.
It was a warm afternoon in October 2012. After crossing the Rio Grande near the Texas border city of Peñitas, Castro Estrada, Coj Cumar, and four other Guatemalan men hid under a black tarp in the back of a red Ford F-150 truck. Three more men were crammed into the cab with a 14-year-old driver. Both Castro Estrada and Coj Cumar had construction jobs waiting for them in New Jersey. They planned to work for a couple of years to pay off their debts, then return home and buy plots of land.
Two game wardens encountered the red pickup and began a high-speed pursuit after the driver failed to signal a right turn. The Texas Department of Public Safety chopper joined in soon thereafter as the truck sped east, turning onto an unpaved ranch road called Sevenmile.
Within minutes, DPS marksman Miguel “Mike” Avila opened fire from the helicopter, trying to shoot out the truck’s rear tires. Avila peppered the truck with at least 19 bullets. Almost none of them hit the tires, instead piercing the sides and back of the pickup bed, killing Coj Cumar and Castro Estrada, who were lying near each other under the tarp. Castro Estrada’s brother-in-law, Vitalino Hernandez, was also shot in the shoulder and back but survived.
For a few weeks, the shooting was national news. The discovery that DPS allowed its troopers to shoot out the tires of moving vehicles from helicopters surprised both local and state leaders. No other domestic law enforcement agency in the country allowed its officers to fire at vehicles from above to end a pursuit, especially one based on a minor traffic violation.
Avila, Capt. Stacy Holland, and Lt. Johnny Prince, who was piloting the helicopter, said they believed that the truck was carrying drugs under the tarp. They also cited the safety of children at a nearby elementary school as justification for opening fire to disable the speeding pickup truck. After the shooting, Steve McCraw, the longtime director of DPS, told legislators that he was a “firm believer that they did exactly what they thought they needed to do” and that it was “consistent with the Texas penal code.” In 2013, a grand jury in Hidalgo County, where the shooting occurred, declined to indict Avila.
Since the shooting, DPS has spent years fighting a wrongful death lawsuit filed by the widows of Coj Cumar and Castro Estrada. The agency’s lawyers have delayed and appealed so many times that the case has been nearly forgotten. Meanwhile, Holland has been promoted to assistant chief pilot, overseeing DPS’s aviation division, and Avila is now a lieutenant pilot. In 2016, Prince retired from DPS.
The families have little chance of prevailing, legal experts say. Sovereign immunity — derived from the British common law concept that the king is above reproach — shields police and government agencies from most wrongful or negligent death lawsuits.
Despite these odds, Justin Smith, an East Texas attorney who “doesn’t speak a lick of Spanish,” as he put it, has spent seven years trying to get the Indigenous Mayan families their day in a Texas court. The lawsuit is currently awaiting a decision in the Texas 13th District Court of Appeals in Corpus Christi on whether it can go to trial.
Much about the shooting is still a mystery. But court depositions taken in 2016 from the three officers involved, which Smith provided to The Intercept and Type Investigations, reveal disturbing new findings. Avila, the officer who shot the men, had never fired from a helicopter at a moving vehicle before and might have used his own gun in addition to his service weapon. And DPS troopers had been shooting at vehicles from helicopters since at least 2011, which was unveiled publicly for the first time during a cable TV show.
DPS declined to comment on the lawsuit or the incident despite repeated requests from The Intercept and Type Investigations. In response to a public records request seeking information on any recent shootings involving helicopters at the border, DPS obtained an opinion by the Texas attorney general that releasing the information would “interfere with law enforcement.” The three officers involved in the shooting did not respond to requests for comment.
“This should be a high-profile case,” said David Henderson, a Texas civil rights attorney who specializes in police brutality and misconduct cases. “You had a policy that was going to lead to people being killed. And let’s be honest, DPS patrols the border, and they know that sometimes there are people in the backs of these trucks, and they still created this policy allowing troopers to fire at vehicles.”
Militarizing the Border
In 2015, I wrote about the helicopter shooting after a multiyear battle with DPS and Hidalgo County over the release of video footage from the helicopter and other evidence from a Texas Rangers investigation into the incident. McCraw never explained why the agency created a policy allowing its officers to shoot out the tires of moving vehicles from a helicopter. And Republican leaders who control the Texas Legislature and governor’s mansion didn’t ask for answers.
“It’s unfortunate some people died,” said then-state Rep. Sid Miller, a Republican, after the shooting. At the time, Miller led the legislative committee overseeing DPS; he is now Texas’s commissioner of agriculture. “But I guess the lesson is: Don’t be running from the law. So there will be no hearing.”
That DPS would start shooting at vehicles from helicopters along the border was the predictable outcome of an aggressive militarization program that began in 2005, spurred by former Gov. Rick Perry’s bid for reelection and his desire to create a Texas-style homeland security agency from which to campaign for an eventual bid for the White House.
In the last decade, Texas has spent more than $5 billion on spy planes, machine-gun boats, military-grade weaponry, and National Guard and DPS “surges” on the border. The “boots on the ground” strategy, as Perry often called it, has since become a tried-and-true campaign tactic with Republican political hopefuls, who don flak jackets to tour the Rio Grande on DPS machine-gun boats during election season. The current Republican governor, Greg Abbott, who is running for reelection in 2022 and now pondering a presidential run himself, recently flooded the Texas border with out-of-state police and National Guard members and announced that he would spend millions of dollars building a border wall.
But back in 2010, the strategy was still in its infancy, and Perry was anxious to debut his bristling new Texas homeland security apparatus at the border. DPS hired former Navy SEAL Chris Kyle of “American Sniper” fame and his security company Craft International to train some troopers to shoot from helicopters. (In 2013, Kyle was killed on a Texas firing range by a former Marine with PTSD.)
DPS also went all in on cable TV, granting five camera crews unfettered access to film for six months in its helicopters and patrol cars along the border for a Discovery Channel show called “Texas Drug Wars.”
“We’re not going to give up 1 square inch of this territory,” Holland, the co-pilot of the DPS helicopter from which Castro Estrada and Coj Cumar were shot, declares at the opening of the show. “We’re using tactics and equipment that you will see in war zones.”
It was in “Texas Drug Wars,” which aired in March 2011, that the public saw for the first time a DPS tactical officer shooting from a helicopter at a speeding truck, which swerved down a busy highway in a crowded metro area along the border. The pilot of the helicopter was Prince, also the pilot in the fatal shooting.
In a statement provided to the Texas Rangers, Prince said that just a few hours before the shooting on Sevenmile Road, he and Holland had led a border VIP tour for David Baker, deputy director for DPS’s law enforcement operations; Kirby Dendy, the new chief of the Texas Rangers; and Republican state Rep. Byron Cook. Their helicopter touched down at Anzalduas Park in Mission, then provided “aerial support,” according to Prince, as the three officials toured the Rio Grande on one of DPS’s armored gunboats. After that, Prince and Holland were joined by Avila, the designated marksman that day, and they patrolled the northwest part of Hidalgo County until they heard the game wardens call in the pursuit on the police radio.
As the helicopter video makes clear, the three decided quickly to begin firing rather than deescalate the high-speed chase or confirm whether police on the ground could put down tire spikes, a safer tactic to disable a moving vehicle. Instead, within two minutes of joining the pursuit on a dirt road heading toward the small border town of Sullivan City, Avila can be heard asking: “Are we going to shut this down before it gets to town?”
“If he keeps on, I think it’s not a bad spot, Mike,” Holland replies.
All three officers have said that they thought the truck was carrying bales of marijuana under the black tarp and that since they were approaching an elementary school and a more inhabited area, they believed they should disable the vehicle before people got hurt. “We were convinced at that time, or I was, and it was the consensus of the other two cockpit personnel that that was — it was a drug load,” Prince told Glenn Perry, an attorney working with Smith on the depositions.
One of the most disturbing revelations from the depositions is that Avila had no real-life training in shooting at moving targets from a helicopter. In his deposition, Avila admitted that he had only received classroom training.
“They all knew that this would have been the very first time that you had ever tried to use deadly force to disable a vehicle and terminate a pursuit,” Perry said, referring to the other two officers in the helicopter.
“Correct,” Avila said. The DPS marksman explained that he was shooting at the rear tires of the truck to avoid hitting anyone in the cab. “Because I wanted to make sure where I was aiming, and where I was hitting, for the safety of the driver.”
Bullets tore through Castro Estrada and Coj Cumar as Avila repeatedly took aim at the left rear tire and missed. Fragments from a .223-caliber round were extracted from Castro Estrada’s arm during the autopsy, a different caliber from the DPS service weapon Avila was allegedly using: a LaRue OBR with .308-caliber bullets.
Smith said he wonders whether the tactical officer was carrying his personal weapon as well as his service weapon, adding to the reckless Wild West nature of the shooting. “Did he have the .223 in his hands when he first started firing, then realized his mistake and switched over to his LaRue?” According to DPS policy, officers can carry their own weapons if they receive permission from their supervisors.
In his deposition, Avila said that he owned at least two weapons that fired .223-caliber bullets but had neither of them on the helicopter. Both weapons were tested for a ballistic match, but the results were inconclusive.
Despite the tragedy, Prince said that the shooting was warranted, even if there were people in the back of the truck.
“If you had had any concerns at all that there could have been a human being in the back of that truck under that tarp, would you have agreed to use deadly force to try to disable that vehicle?” Perry asked.
“Yes, sir,” Prince answered.
“You would have?”
“Yes, sir.”
“So I guess it really doesn’t make any difference whether there were people under the tarp or drugs under that tarp. Is that right?”
“That is true. … But we probably would not have picked the back left tire to shoot,” Prince said. “It would have gone to the front tire … if we knew there was people there.”
“The Politics of This State”
Smith was 30 years old when he took on the Guatemalan widows’ case in 2014. He said he plans to keep battling DPS’s lawyers in court until the end, which he worries could come soon.
Smith is suing the agency under the Texas Tort Claims Act, which provides exceptions to sovereign immunity in cases of negligence. “The predominant claim is that it was negligent for Miguel Avila and the other troopers to use a helicopter to rain down bullets on a truck in an effort to disable it,” he said. “Particularly when the underlying offense is an alleged traffic violation for making a right-hand turn without using the turn signal.”
If the lawsuit prevails in the court of appeals, Smith said, he expects that lawyers for DPS will file a petition for review, which means the case will be kicked up to the Texas Supreme Court, where it will be scrutinized by a conservative, elected panel of judges. DPS has steadfastly argued that the shooting was not negligent and that because of sovereign immunity, the Guatemalan widows have no legal right to sue. Chances are slim to none that the judges will rule against the police, he said: “It’s just the politics of this state.”
Henderson also believes that the lawsuit will most likely fail. “I wish the public had a better understanding of how bad the circumstances are … when it comes to police brutality and misconduct cases,” he said. “There are special rules carved out for law enforcement that don’t exist in other cases. DPS troopers were authorized to shoot vehicles. And while I think that’s a terrible law, it’s going to make it even harder to hold these officers accountable under the theory of negligence.”
After the deaths of Castro Estrada and Coj Cumar, border residents and civil rights groups placed two white wooden crosses at the side of the rural ranch road where they’d been shot. Betty Perez, a local rancher, participated in a candlelight vigil and protest there in 2012. In late July 2021, Perez and I drove down to Sevenmile Road to see if the crosses were still standing.
“I came down here for the protest because this is basically my backyard,” she said. “It’s just five miles from my ranch. There were probably 50 of us there at the protest.” She scanned the side of the caliche road for any sign of the crosses as she piloted her dust-coated Subaru.
“After you called, I was talking to a friend, and I said, ‘Remember that DPS helicopter shooting when those men died?’ And he said, ‘What? I don’t remember that!’” Perez shook her head. “I had to remind him of it. So much horrible stuff has happened since then,” she said, slowing the car to a stop. “The military buildup, all these guns down here. I’m more afraid of the police now than I am of any immigrant.”
She gestured with her hand toward a strip of overgrown grass on the side of the road. “They were there, I think,” she said of the crosses. “They’ve probably been gone a long time now. People forget.”
A man wears a face mark as he fishes near docked oil drilling platforms in 2020, in Port Aransas, Texas. (photo: Eric Gay/AP)
Under an executive order Biden issued shortly after taking office, the department reviewed the federal program that sells leases to drill for gas and oil on federal land and in federal waters.
The study’s damning key conclusion is that decades-old bureaucratic processes generate less revenue for the federal government than they should and that they fail to factor in the environmental harms of fossil fuel extraction.
“The review found a Federal oil and gas program that fails to provide a fair return to taxpayers, even before factoring in the resulting climate-related costs that must be borne by taxpayers; inadequately accounts for environmental harms to lands, waters, and other resources; fosters speculation by oil and gas companies to the detriment of competition and American consumers; extends leasing into low potential lands that may have competing higher value uses; and leaves communities out of important conversations about how they want their public lands and waters managed,” the report states.
But while some environmentalists greeted the news as a long-overdue first step toward reforming the program, which effectively subsidizes the production of fossil fuels that cause climate change, others expressed frustration that the 18-page report only mentions climate change twice.
“The report lays out everything we already know and have been saying for years. The federal oil and gas program is in dire need of reforms to ensure fairer returns to taxpayers and to ensure that industry cleans up its mess,” said Sara Cawley, legislative representative with the environmental organization Earthjustice, in a statement released on Monday.
“But in other ways,” Cawley added, “this report falls far short of the promised ‘comprehensive review,’ notably leaving out the climate consequences of continuing to lease public lands and waters to the oil and gas industry. In addition to ignoring the huge climate impacts from oil and gas production, this report failed to address other environmental impacts of oil and gas activities on communities and the critical regulatory and safety reforms needed to limit those impacts.”
The United States is the world’s largest producer of both oil and gas. It accounts for 15 percent of global crude oil production and approximately 24 percent of natural gas.
According to the Natural Resources Defense Council, oil and gas companies have active leases on 26 million acres of federal land and on 12 million acres of ocean managed by the federal government. In 2019, 23.6 percent of U.S. oil production and 11.2 percent of gas production came from federal lands and waters. Half of the federal land under lease and most of the offshore lease areas haven’t actually been drilled yet, meaning oil and gas companies could keep producing off of federal leases for years even if new leasing stopped completely.
In his 2020 presidential campaign, Biden promised to end federal fossil fuel leasing in order to hasten the transition from fossil fuels to clean energy, but the report stops short of calling for that, instead it only proposes programmatic reforms that would improve the return to taxpayers.
The single most straightforward change the report proposes is raising century-old royalty rates for on-shore oil and gas production that are far lower than current standards on private and state land. “The Mineral Leasing Act was passed in 1920 and set royalties at a minimum of 12.5 percent for oil and gas produced from public lands,” the DOI report explains. “Today, 100 years later, leases are still being sold using these low rates, which are out of step with modern times ... nearly all State and private lands require that operators pay a royalty rate higher than 12.5 percent.”
States with large oil and gas reserves typically charge a rate of at least 16.67 percent, as Montana, Utah and Wyoming do. Last year, a report from the nonprofit watchdog group Taxpayers for Common Sense estimated that “the federal government lost up to $12.4 billion in revenue from oil and gas drilling on federal lands from 2010 through 2019, because it continues to apply a grossly outdated royalty rate.”
There are other ways fossil fuel companies are undercharged, according to the report, including below-market land rental rates and a minimum bid in lease auctions, which hasn’t been raised from $2 per acre since it was set in 1987. The review also calls for more stringent requirements that bidders prove they have the wherewithal to actually capitalize on the lease. Currently, undercapitalized speculators buy leases at the low prices set by the federal government and flip them for an easy profit. They sometimes also attempt to exploit the fossil fuel reserves but run out of money, leaving orphaned wells for the government to clean up.
Environmentalists say another omission from the report concerns the cost of carbon emissions. Every time oil or gas is drilled, its greenhouse gas emissions cause harm to the rest of the world. Shouldn’t the cost of that damage be factored into the cost of selling the leases, they’ve asked. The Department of Interior didn’t address that question in its report, much less go all the way to recommending an end to fossil fuel leasing on the grounds that oil and gas must be left underground if the world is to avert catastrophic climate change.
Some in the environmental movement fear that means Biden is backing away from his campaign pledge.
“Releasing this completely inadequate report over a long holiday weekend is a shameful attempt to hide the fact that President Biden has no intention of fulfilling his promise to stop oil and gas drilling on our public lands,” said Food … Water Watch policy director Mitch Jones in a statement.
The Department of Interior told Yahoo News that it is still working on analyzing the effect of federal fossil leasing on climate change.
“In addition to seeking to restore balance to managing our public lands and waters, the report recommends a more transparent, inclusive, and just approach to leasing and permitting that provides meaningful opportunity for public engagement and Tribal consultation,” DOI spokesperson Tyler Cherry wrote in an email. “Analyses of the effects of greenhouse gas emissions are ongoing and will be incorporated in the Department’s planning and reviews as it moves forward with leasing consistent with court direction, including recent announcements by BOEM and BLM.”
The Biden administration is already being sued by Earthjustice for auctioning oil-drilling leases in the Gulf of Mexico earlier this month. The White House said it had no choice, due to a federal judge’s order that it complete the auction planned by the Trump administration. But this latest report will only serve to intensify calls for it to actually integrate addressing climate change into its land management policies.
“We expected much more, especially given the Biden administration’s deeply disappointing and legally avoidable Gulf lease sale,” Cawley’s statement concluded. “Interior must take decisive action to reduce climate-heating emissions from federal energy extraction and end new leasing on public lands and waters.”
Kellogg. (photo: Nati Harnik/AP)
After decades on the losing end, company workers are demanding a better deal. The cereal giant has other plans
That was a long time ago. Now, the investment only goes to certain people, like Kellogg CEO Steve Cahillane. He brings in nearly $12 million a year in compensation, nearly 280 times the company average.
The workers? They’ve time-traveled to William Blake’s dark-satanic-mills era of factory work, where a purposely understaffed labor force endures, according to union workers, 72- to 84-hour work weeks — not a typo — that includes mandated overtime and a point system that dings you if you dare beg off to go watch your son’s Little League game. (Kellogg’s claims its employees only work 52 to 56 hours a week and 90 percent of overtime is voluntary, a claim BCTGM workers hotly dispute.)
“The worst is when you work a 7-to-7 and they tell you to come back at 3 a.m. on a short turnaround,” says Omaha BCTGM president Daniel Osborn, a mechanic at the plant. “You work 20, 30 days in a row and you don’t know where work and your life ends and begins.”
In 2021, as a potential strike loomed, Kellogg’s stopped hiring workers when others retired or quit. The reasoning, the workers say, was twofold: It meant that the company would spend less on benefits and that there would be fewer workers to man picket lines in the case of a strike.
“There’s been times during Covid when we were 100 workers under what we should have,” says Osborn, a man with close cropped blond hair and a quiet disposition that runs counter to the image of the burly union leader. He is 47 and has worked for Kellogg’s for 18 years, often 12 hours a day, seven days a week.
In 2015, he gave more than just his time. Osborn was looking forward to a Colorado vacation when he was called into the heat and white noise of the factory floor to fix a high-speed engine lathe. With his right hand inside, the machine bucked and broke his index finger and his wrist in half. It took five surgeries to get him back to a semblance of whole.
That was the same year Kellogg forced through a wage cut that divided 1,400 workers into a caste system that benefited stockholders but devastated employees. Claiming that cereal sales were down, the company threatened to close down two factories if the union didn’t accept a two-tier pay system. Veteran workers would keep “legacy status” and their salaries and benefits, but new hires would, according to the union, pay $300 more a month for their health benefits and would be paid an hourly rate as much as a third less than their more-senior union brothers and sisters.
Here’s an example: A line packager in the first tier could make around $30 an hour, while newbies make $19.50 an hour dealing with the same dystopian working conditions. Over the course of a year, the new employee would make $30,000 to $40,000 less a year for the same job, depending on the amount of overtime. The two-tier system has become a standard tool used to destroy the working class in modern America, particularly in the auto industry. The union, fearful of losing half their jobs, conceded and ratified the contract.
The message to workers was a simple one that American laborers have been hearing for decades across the country: You will not enjoy the middle-class lifestyle that your parents did working on these very same machines. Well, unless you work 72 hours a week.
Kellogg’s did offer a fig leaf, promising that every time an old-tier worker retired, a new-tier worker would be advanced into the higher-paying tier, a one-for-one deal. But the company had bureaucratic ways to prevent that from happening, including classifying mechanics like Osborn outside the purview of the tier system. The exchange rate was closer to one promotion for every three retiring old-tier workers.
“The union agreed to a two-tiered system in 2015 to help address rising labor costs, which were out of sync with the market and the rest of our network,” Kellogg’s spokesperson Kris Bahner told me. “We paid a $15,000 signing bonus to each hourly cereal employee in exchange for these changes. We [have] presented a concept that provides immediate ‘graduation’ to legacy for all employees with four or more years of service.”
That’s not the way the workers see it.
“You sign on at a place like Kellogg’s, and you know they basically own your life,” says Osborn, flexing his repaired hand. “You decide it is OK because you do it to support your family and give them a good life.” He stares down at his constantly buzzing phone. “But it has to be a relationship where you’re valued, and the company doesn’t look to squeeze out every last drop of profit at your expense.”
Osborn’s buddy Jeff Jens has been listening and sighs under his breath. He is the prototypical American union worker, a tatted-up bear of a man who walked the picket line in a driving rainstorm last night, his clothes and skin soaked to the bone. He looks like he could overturn a Chevy Blazer with his bare hands, but he is a sweetheart concerned about his kids and his legacy. His family, including two uncles, has 150 years of work experience at Kellogg’s — 46 for his father.
“The whole reason I came in was because it was a family,” says Jens. “You felt good about working somewhere your dad and his brothers worked. You almost had to know somebody or have family there to get in. They treated you with decency.”
Osborn laughs. “It used to be that you’d get hundreds of applicants for six openings. Now, they’ll take you if you can fog a mirror, and that’s because of how they treat us.”
Still, it is 2021. There’s a labor shortage and Covid-era cereal sales are booming. The company just announced more than $4 billion in gross profits. If there was ever a time for workers to regain what has been lost, it is right now. Remarkably, Kellogg’s first offered a contract that made all new workers part of the lower tier with no chance of advancement.
Kellogg workers responded by striking on Oct. 5. Since then, the company has brought in strikebreakers that it has put up at the local Doubletree Hotel, paying them $30 an hour and giving them a $75 per diem. Alas, their dedication to their craft has been less than that of union members. Videos have emerged purporting to show fistfights on the factory floor amid rumors of scabs being sacked for indolence.
The idea that their Froot Loop lords would bargain in good faith quickly evaporated, with the union anticipating that Kellogg’s would just increase the importing of cereal from their non-union Mexico plants to make up for any domestic shortfall. Shortly after the strike began, management cut off their health care, and workers were forced to pay up to $2,980 in COBRA payments, something not even John Deere management dared pull during its recent strike. (I checked with Kellogg’s about whether health benefits had been eliminated. Bahner responded succinctly: “Correct.”)
Osborn has three kids and a wife, and so far, they’re rolling the dice without insurance. “I’m just hoping to ride it out and this gets settled. He tells me his adolescent daughter — who needs special medication for a preexisting condition — is having anxiety over the cost of her meds. He has to tell her repeatedly it will be OK.
That night, I meet Daniel outside the factory where union workers walk the picket line. Whether for safety or a torture device out of The Manchurian Candidate, Kellogg’s has illuminated the area with giant floodlights that gives the spot an eerie day-for-night feeling. Billy Bragg’s “There Is Power in a Union” blasts from a sound system. I talk to one old-timer, and he asks about other stories I’ve done. I mention a piece on Virgin magnate Richard Branson shooting himself into space. The man gives a joyless laugh. “We got a man going into space, and we got a company cutting off our insurance. This country is heading in a shit direction.”
A little later, I meet John Rosenthal Jr., a modern Alexey Stakanov, a mythically hardworking Soviet coal miner of the Stalin era. Rosenthal claims he worked over 350 days last year. (Another worker showed me his timecard; it was just a line of 84-hours, seven-day-a-week entries, for months on end.)
“You take one day off and your whole sleep schedule is screwed,” jokes Rosenthal. “I tell my wife on my day off we’ve got to keep me moving or I’m just going to pass out on the couch.”
He turns serious. “I do this so my wife can be a stay-home mom. Nowadays, to do that you have to work every day.” Rosenthal is a second-generation Kellogg’s worker, following his father into the plant. His dad still works there, when he is not getting chemo treatment that he now must pay for with his exorbitant COBRA insurance.
Sadly, fairness isn’t a component of American exceptionalism. For 30 years, politicians from both parties preached about the benefits of a global economy that to workers largely meant getting kicked in the groin repeatedly, taking lower wages as corporations threatened to send their jobs overseas. Now, Kellogg’s is making billions and — with the labor shortage — it is the first time that circumstances have favored labor in decades. The American labor movement has claimed it doesn’t want a bigger slice of the pie, it wants a bigger pie. It’s nice rhetoric, but here in Omaha the workers would settle for their slice of pie being upgraded to a regular piece from a child’s portion.
That isn’t Kellogg’s take. A few days before Thanksgiving, the company and union broke off negotiations claiming they were at an impasse. The company of “we invest in our people” went thermonuclear, announcing it would begin to hire permanent replacement workers, the ultimate fuck-you to labor. Hiring permanent replacement workers has been a harsh step that Congress has periodically contemplated making illegal but never had the votes to change. It begins the tit-for-tat phase of the strike with the union filing multiple charges against Kellogg’s with the National Labor Relations Board for bargaining in bad faith. If the NLRB upholds even one of the charges, Kellogg’s ability to legally replace union workers with permanent replacement workers is eliminated. Furthermore, the first plank of any future agreement between Kellogg’s and the BCTGM will certainly force the company to rehire all of its union workers.
Still, it is a frightening development. The Nebraska wind is picking up and winter snow is imminent as BCTGM workers face a Christmas without any presents under their trees. Back on the picket line, it’s near midnight. Nearby, an SUV breaks the night silence, honking its horn in support. John Rosenthal digs his hands deeper into his jacket trying to stay warm while his union brothers down energy drinks and chain-smoke the night away. He makes a joke about his kids freaking out because he is home so much. But immediately his smile fades.
“We’re just looking for something that’s fair,” says Rosenthal. He shrugs his shoulders and looks over at the factory that consumes over half of his waking hours.
“Something fair doesn’t seem like asking for too much.”
Xiomara Castro will become Honduras first female president and the first from the left since her husband was overthrown in a coup in 2009. (photo: Orlando Sierra/AFP)
Wildfires. (photo: Grist/DNY59/Getty Images)
The evidence is clear: Forests are shifting to scrublands across large swaths of the Western U.S.
“I kept watching and I was barely seeing any seedlings at all,” Veblen said.
One of his graduate students at the time, Monica Rother, who now leads her own lab at the University of North Carolina at Wilmington, took a closer look, formally sectioning off research plots and returning year after year to count little trees. More than a decade after the Walker Ranch Fire most of her plots had zero tree seedlings.
Now that the winter has cooled the 2021 fire season, scientists are looking at the big burn scars across the West with the grim understanding that, in some places, the pine and Douglas fir forests will not return.
The driving force here is that the rising global temperature is wiping out seedlings. In many spots around the U.S. West, summer temperatures are already high enough to cook young trees before they can develop thick protective bark. Others have become so dry that seedlings shrivel before their roots can grow deep enough to reach groundwater. Both circumstances can thwart forest regeneration. Mature trees can survive in these areas long after they stop reproducing. But when fires wipe out these forests and seedings can’t get a foothold, they are replaced with grasses and dense brush.
Climate change has already shifted biomes. Intense fires simply clear away the last vestiges of the old regime.
When Veblen told the Forest Service about his early observations, around 2003, officials shrugged off the concern. Back then, during President George W. Bush’s administration, the idea that climate change was already producing changes was still somewhat taboo. It would probably just take a few years for trees to get reestablished, the government foresters said.
But over the years, the evidence piled up. And new research has cemented the scientific consensus that climate change is making it much harder for forests of Western mountains to return after fires.
Kimberley Davis is a plant ecologist at the University of Montana and the lead author of an influential study on how climate change is altering forest regeneration after fire, published in the Proceedings of the National Academy of Sciences. In her research, she found site after site where new climatic conditions no longer supported the growth of young pines. Adult trees can survive in conditions that kill their seedlings, but they have no future: Like the humans in the science-fiction movie “Children of Men” they’ve outlived their ability to reproduce. With no seedlings, when a fire eventually passes through that is strong enough to wipe out mature trees, it means the woods are gone for good.
When trees fail to regenerate after a fire, new plants take their place. To generalize, in the northern Rocky Mountains, it’s a mix of grasses and shrubs of the genus ceanothus — like snowbrush. In parts of the Southwest, juniper and oak savannas replace pine forests. In New Mexico, thorny locusts often dominate. In northern California, its dense hip to head-high thickets of manzanita and ceanothus. The general trend: fewer forests, more shrublands.
Examples of this ecological shift abound. Twenty years have passed since the Valley Complex Fire burned down the mature forests in Bitterroot National Forest in Montana, and yet there are no signs of young trees returning to the big swaths of landscape. Sixteen years after the Peppin Fire in Lincoln National Forest in New Mexico, it appears the pines are gone for good in many places, replaced by scrubby Gambrel oaks that can survive in the hotter conditions. After the 2007 Moonlight Fire in Plumas National Forest, dense stands of chaparral whitethorn and greenleaf manzanita grew back, rather than trees.
“It’s already happening, it’s not just something we are modeling in the future,” Davis said. “We are definitely at a point where we are all noticing significant impacts of climate change in terms of lack of forest regeneration across the West.”
One study, published last year, found that if forested areas in the Rocky Mountains burned, just half would recover well. It’s generally the south facing slopes and the fringes, where woods meet the plains, that can no longer nurture young pine and fir trees, because those are the parts of forests with the highest temperatures, said Kyle Rodeman, the lead author of that paper, and a scientist studying forest recovery at Northern Arizona University. Southern slopes get more sun in the northern hemisphere, which makes them hotter and drier. And the low-elevation edges of forests mark the line where conditions become inhospitable for trees — with smaller plants in the hotter lowlands, and trees appearing at higher, cooler elevations. It only makes sense that these spots have been the first places forced over the tipping point, into conditions unsuitable for forests, as climate change has turned up the heat. As the years pass, those unsuitable conditions for forest creep uphill.
We’ve long known that it takes water and cool weather to support mountain pine forests. “In a way you would say, ‘Duh, what did you expect? Under warmer drier conditions you are going to get fewer forests,” Veblen said. But it took time to document, and back up the logic with data. At this point, he said, “there’s really no resistance to that idea anymore.”
Today, land managers are scrambling to slow the transformation in many places, by planting trees and killing shrubs. For instance, the Forest Service has proposed a plan to wipe out brush with herbicides in Plumas National Forest. There, climatic conditions would still allow young trees to survive, if they were not crowded out by fast growing shrubs, experts say. When fires enter forests every few years, they tend to burn gently, creeping along the ground and clearing out plants that compete with young trees, without killing the mature ones. But in a landscape dominated by brush, fires burn hot, wiping out the remaining trees and favoring the scrubby species that can quickly grow back. It looks like that’s exactly what happened when the 2021 Dixie Fire swept through the brushy areas created by the 2007 Moonlight Fire. By clearing the brush, the Forest Service hopes to give trees a chance to tip the ecosystem back into a self-sustaining forest.
These efforts to control habitats can succeed in areas teetering on the edge — where temperatures are still low enough to allow a few young pine trees to take root. But they don’t control the most important variable determining the fate of these forests: “The earlier we start dealing with the root problem, climate change, the better chance we have,” Veblen said. “If you want to keep these forests, keep fossil fuels in the ground.”
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