Scott's Blog


Read Scott's thoughts on important environmental issues in Minnesota, the United States, and worldwide.

New NLRB ruling and environmental law

Yesterday, in a long-anticipated ruling, the National Labor Relations Board (NLRB) held that companies that contract out with other companies to handle their staffing and employee relations can still be "joint employers" if they retain sufficient control over how the work gets done. This case involved Browning Ferris Industries (BFI), one of the big waste management players, which had contracted out with a company called Leadpoint to do all the hiring and firing, compensation and benefits for the staff at one of BFI's recycling plants.  BFI still established the work process and set the working hours. The Teamsters tried to organize the workforce, and sought to collectively bargain with both BFI and Leadpoint as "joint employers," but the regional NLRB office said that Leadpoint was the sole employer because they controlled pay and benefits.

The full Board reversed, and held that the two companies were indeed joint employers and both could be obligated to bargain with the union.

This is a big deal because the Board is recognizing the realities of today's workplaces and today's corporate gamesmanship. Under the old rule, the notion that the subcontractor Leadpoint truly controlled even pay and benefit levels was dubious at best. If Leadpoint paid more than BFI wanted, BFI would just end its contract with Leadpoint, Leadpoint would lay everyone off, and then a new subcontractor would hire everyone back at the rate BFI was willing to pay. That kind of thing happens all the time these days. And, where the implications of this ruling are really important are in all those situations where companies pretend they are just franchisors or contractors and don't control wages and working conditions at individual work sites, but the reality is that they do. For example, McDonald's. Another example, Uber.  

The reason this is important for environmental law is that it may focus attention again on the ways corporations evade environmental responsibilities with subsidiaries, subcontractors, and what should be treated as fraudulent transfers. A company will be on the hook for a cleanup, but will then transfer its assets away, leave the liability with a now virtually judgment-proof shell, and put taxpayers on the hook to clean up the mess.

So this new BFI decision is important not only for working people, but also for all areas of the law where we have allowed clever lawyers and accountants to insulate corporations from their responsibilities.

Clean Power Plan--those who benefit most are the fiercest opponents

It is often the case that the states and regions whose citizens will benefit the most from a government regulation are the same states and regions who are the most vocal opponents  The same is true for the Clean Power Plan. When you think about it, it makes sense that the most coal-dependent states will gain the most in public health benefits if coal's share of our energy economy drops. But of course, in our political system, costs to major domestic industries trump benefits to the public at large most of the time. For additional insight, see "Cost-Benefit Politics in U.S. Energy Policy," or check out Professor Farber's take on it

Clean Power Plan--lowering the bar, kicking the can down the road?

The new Clean Power Plan from the EPA has been rightly celebrated as the most significant step made by any Administration to cut greenhouse gas emissions. Yet there is a cloud around this silver lining. For many states, including Minnesota, policies already in place are likely to accomplish the Clean Power Plan's moderate goals, which are clearly not ambitious enough to put us on the track toward 80% reduction by 2050, the goal established in Minnesota's Next Generation Energy Act. In Minnesota, then, the focus on the Clean Power Plan threatens to give our state agencies the opportunity to do less. Bureaucrats and politicians would much rather say "we're blowing past the Clean Power Plan goals" than "we're still falling behind the Next Generation Energy Act goals."

This is a problem right now, because parts of the Dayton Administration will unfortunately use the less ambitious Clean Power Plan goals to justify deferring a decision on whether to retire Xcel Energy's Sherco 1 and 2 coal-burning generation units, the biggest sources of carbon pollution in Minnesota by far.

Xcel wants to kick the can down the road on Sherco to 2030 or beyond.  Dayton's Commerce Department so far is largely going along with that, saying only that the issue should perhaps be considered again in 2017. MCEA's analysis, on the other hand, shows that we can close Sherco 1 by 2020 and Sherco 2 by 2023 at no additional cost to ratepayers, but with enormous benefit to Minnesota's air quality.

Kicking the can down the road is not good enough, and should not be good enough for the Dayton Administration. MCEA and the top clean energy organizations in the state have proposed an alternative Clean Energy Plan that commits to a firm schedule for closing down the old Sherco units, which we believe is essential if Minnesota is to get back on track to meeting its NextGen Energy Act goals.

To learn more, consider attending a stakeholder workshop next Thursday, August 27, 2015 from 9:00 to 11:30 am at the Central Library, Doty Conference Room, 2nd Floor, 300 Nicollet Mall, Minneapolis.  MCEA lawyers and energy experts will be there to explain the proposal and answer questions.

Methane and landfills too

This week's announcement of new EPA rules to control methane and volatile organic compound (VOC) emissions focuses on oil and gas drilling, but it also includes landfills, which can be prodigious emitters as well.  Here is a summary of that part of EPA's new proposed rules.

New methane and VOC emission rules proposed by EPA

Yesterday the EPA proposed "new source" rules governing methane and "volatile organic compound" (VOC) emissions from oil and gas wells. This is a key component of the Administration's overall climate strategy. One of the issues with the shift from coal to natural gas has been the concern that fracking releases significant amounts of methane, which is a much more potent greenhouse gas than carbon dioxide, and the result is that many of the climate-related gains from moving away from coal get cancelled out. One of the responses to that has been that methane leaks are not about fracking per se, but are more about best practices for oil and gas drilling generally. Either way, if these rules go into effect, and we do cut methane emissions nearly in half, that will be extremely helpful to the overall climate change mitigation effort.

Heads planted firmly in the goop

Yesterday's main headline in the Star Tribune featured Fountain Lake near Albert Lea, one of many southern Minnesota lakes that has been torched by agricultural runoff. Another example of the instinctive argument from too many in the agriculture sector denying that there is a problem or that agriculture has anything to do with it. 

"Ag gag" law struck down as unconstitutional

A federal judge in Idaho recently struck down an Idaho statute prohibiting people from undercover videotaping of animal abuse in livestock facilities on First Amendment grounds.

These "ag gag"  bills pop up in the Minnesota Legislature regularly, and House Agriculture Finance chair Rod Hamilton is in the paper today defending them. Interestingly, Rep. Hamilton is employed by a livestock processing company accused of animal abuse.

Corn and greenhouse gas emissions

A recent study led by the U of M's Peter Turner found that nitrous oxide emissions from contaminated rivers have likely been grossly underestimated.  Nitrous oxide is about 300 times as powerful a greenhouse gas as carbon dioxide.  So modern corn production is not only contributing the bulk of the nitrate problem in our water, but it is contributing a much larger share of our greenhouse gas problem as well. A link to the study can be found within this Grist article, which also offers a nice summary of the issue.

More on the Gold King catastrophe

Two very good articles on the mine pollution disaster in Colorado, with lots of links to other reporting:

MinnPostA torrent of mustard-colored waste shows lasting risk of sulfide mining 

Daily Kos: "Catastrophe!" Screamed the Newspaper Headline

Tragedy in Colorado

More coverage of the mine waste disaster near Durango: "Environmental agency uncorks its own toxic water spill at Colorado mine."

The pollution is now heading into the San Juan River, and could well reach the Colorado just upstream of the Grand Canyon.  All from a mine that stopped producing in 1923.

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