Duking It Out Over FOIA and Grid Cybersecurity

The Freedom of Information Act (5 U.S.C. 552) was originally enacted in 1966, and has been amended a few times since. The U.S. Supreme Court has said that “[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). There are, however, nine exemptions, including three related specifically to law enforcement, under which the federal government can withhold information that would otherwise be disclosed under the FOIA.

At federal agencies today, and particularly at the Federal Energy Regulatory Commission, those exemptions from disclosure have been so broadly construed that one can say with reason that FOIA has been administratively repealed. Instead of starting with a policy of full disclosure, from which certain specific categories of information are carved out, federal agencies instead start with St. Peter’s maxim: they’d rather cut off their left hand than allow it to obtain information about their right. Imagine being at the British Admiralty circa 1906 and receiving a request from Kaiser Wilhelm for a complete set of plans for the H.M.S. Dreadnought. That will give you an idea of the view contemporary federal agencies take toward FOIA requests.

Like water in a state of nature, less interesting work in a bureaucracy always flows downhill, where it is handled by persons of lower seniority and even less authority. This leads to over-classification of agency materials as top secret and exempt from FOIA. After all, if you’ve been at your agency job for four years or less and your responsibilities include responding to FOIA requests, why would you release something and risk your superior’s ire, if not your job? Better to pick out an exemption or two from the FOIA menu and send back a response of

REQUEST DENIED

Of course FOIA provides for remedies to obtain disclosure, and those often work for large media companies and the like. But for the vast majority of Americans who lack the resources to commence a FOIA enforcement action in federal district court, those remedies are worse than useless. They’re a cynical joke played on the American people.

Now we have another FERC FOIA dust-up. The North American Electric Reliability Corporation (NERC) submitted to FERC a Notice of Penalty against an electric utility for 127 cybersecurity violations between 2015 and 2018. The company agreed to pay a record-setting $10 million fine its cybersecurity violations. According to some reports the utility is Duke Energy, though that hasn’t been officially confirmed. FERC doesn’t want to publicly release the name of the electric utility.

Why shouldn’t the public be able to know whether their utility is the one that’s risking the reliability of their electricity supply and distribution system because they’re unable to get their cybersecurity act together? These violations, and the $10 million fine, are the fault of the utility’s management, not its ratepayers. Shouldn’t the ratepayers be allowed to know whether their utility is going to try to pass this cost onto them through rates?

Public Citizen, a watchdog group, has demanded that FERC disclose the utility’s name. They have stated that

“Concealing the name of the recipient of the largest fine in history sends a confusing message to the public that large penalties do not come with full accountability,” said Tyson Slocum, director of Public Citizen’s energy program and author of the filing. “Future violators may be able to similarly hide behind the veil of anonymity. Moreover, keeping the public in the dark about the cybersecurity track record of our electric utilities may create a false sense of security and reduce the likelihood of more public awareness and vigilance needed to protect cybersecurity.”

The real problem is that bureaucracies like FERC do not want the curtain pulled back on anything they do, regardless of whether any exemption applies. Any unplanned exposure of their operations risks upsetting their messaging and tarnishing the public image they want to create. Every public performance by an agency has to be staged just so, or else, in this internet media-driven age, a public relations catastrophe could occur.

 

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Roger Stone Can’t Claim Ignorance of Social Media Messaging

Trump Adviser Roger Stone

Roger Stone, self-professed political dirty trickster and Republican campaign guru, posted an image of the federal judge overseeing his criminal case with the cross-hairs of a rifle scope superimposed over her face.

This is not a stupid mistake by some idiot who has no idea of what political or social media is, or what power it has. Stone claims to be the living embodiment of politically savvy messaging. I’m sure he charges correspondingly impressive fees to his clients.

About 15 years ago, white supremacist Matthew Hale was convicted and sentenced to 40 years in prison for a plot to kill federal judge Joan Lefkow. The plot to kill the judge failed, but her husband and mother were shot to death in their home.

Just last October, Cesar Sayoc, the so-called MAGA bomber, sent mail bombs to prominent Democrats who have been targets of Drumpf’s tweets.

Roger Stone is appearing before a federal court in a criminal case where he could face prison time. Stone created a picture of the judge on his case with an assassination theme. He then posted his assassination-themed picture of the judge online.

In an environment in which judges can become targets of assassins, Drumpf supporters mail bombs to his opponents, and the President of the United States himself encourages violence against journalists under a promise that he’d pay the legal bill (yeah, right), the court would be entirely justified in making an example out of Roger Stone.

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Amazon’s Bezos: An Average Kinda Guy for Long Island City

Amazon’s Jeff Bezos – An “Average” Guy

Last week Jeff Bezos, the richest man on Planet Earth with a reported $100 Billion in net worth, decided that Amazon would no longer consider building its Headquarters 2 Project (HQ2) in Long Island City, New York. Amazon had never made any commitment to build in New York, and in fact it’s still looking at locations in other states. But feelings of unrequited love have spurred critics on both the left and the right to complain. The right complains that the left is anti-business. For its part, the left is split: some complain about lost jobs (even though they didn’t exist yet), while others argue that the deal was a huge give-away and unnecessary to boot.

Based on public information, Amazon’s gross annual revenue for 2018 was $233 Billion, a 30.9% increase from 2017’s annual gross of $178 Billion. For our purposes, we’ll forget all about what Amazon may have earned, gross, in any prior year, and what it may have done with that money, whether pay it out in dividends, re-invest in the company, etc. We’ll give Amazon every benefit of the doubt by being conservative on its revenues, as well as conservative on what it was supposed to get from various New York public piggy banks.

Amazon canceled consideration of New York City as a home for its new HQ2 because of friction with various political players in NY who opposed the project. We’re told that opposition was due chiefly to the proposed economic incentives to Amazon that would be provided at public expense. So what was Amazon supposed to get in this deal? Reports over the last few days use a figure of $3.0 Billion, but according to news reports from last November, the real total appears closer to $2.6 Billion. Still a lot of money, but none of the current reports go into same detail as those from November. Based on the November reports, the gist of the deal was this:

• $1,200,000,000: Amazon was going to receive $1.2 Billion in NY State tax credits through the Excelsior Jobs Program if it created 25,000 net new jobs in New York State with an average salary of $150,000 per job by June 30, 2028. Without reviewing the actual documents, we can’t say whether this 25,000 job/$150,000 average salary requirement was a condition precedent to Amazon’s receipt of the tax credits, or whether those credits had some kind of best efforts fudge factor. Giving Amazon the benefit of the doubt, we’ll assume this requirement is a condition precedent.
• $505,000,000: New York State would give Amazon a grant of $505 Million to reimburse it for the cost of building its new office space in Long Island City. (Subtotal: $1,705,000,000).
• $325,000,000, netted to zero (-0-): Another reported cash grant consists of $325 Million from the Empire State Development Program. Again, without having seen authoritative documents, it’s not clear whether this $325 Million is part of, or in addition to, the $505 million grant mentioned above. Giving Amazon the benefit of the doubt, we’ll regard it as part of the $505 million grant, and discount it entirely. (Subtotal: still $1,705,000,000).
• $900,000,000: New York City, through its Relocation and Employment Assistance Program (REAP) would have added another $900 Million in grants. (Subtotal: $2,605,000,000).
• – $-0- : New York State and New York City officials had promised to either rehab or build new infrastructure and mass transit facilities that serve the area Amazon would occupy in Long Island City. This would be public money as well, though review of the news reports did not disclose any definite dollar amount or commitment. Because these projects, if completed, would benefit the public at large and not just Amazon and its proposed new HQ2, we’ll give Amazon the benefit of the doubt and disregard any public dollar commitment public transportation and infrastructure improvements.

The total estimate of public dollars to be spent for Amazon’s benefit is thus $2,605,000,000; or just call it $2.6 Billion. The punditocracy would have us believe that Amazon nixed its Long Island City plans because of the difficulty of obtaining from New York (state and city) tax and other incentives that amounted to just a little over one percent (1%) of its gross revenues for each of the years 2018 and 2017.

Unlikely, but we’ll run with it anyway.

Some proponents of the Amazon project argue that this really isn’t public money. That is absurd. Tax abatements, tax credits and deductions, and grants from government agencies are all sourced, whether directly or indirectly, from public money. A state tax credit is public money of the state: it reduces a tax otherwise payable to the state on a dollar-for-dollar basis. Even the most ardent supporters of Amazon’s project have to admit that there’s no such thing as a free lunch.

Let’s do a little quick math. As Mark Twain said, there are lies, damn lies and statistics, so let’s revisit Amazon’s promise to provide an “average salary” of $150,000 for 25,000 net new jobs. The pundits bemoaning New York’s loss of Amazon’s HQ2 take this to mean 25,000 jobs paying $150,000 each. But remember that old joke about the statistician who had his head in an oven and his feet in a freezer. When asked if he was okay he replied, “On average, I’m just fine.”

The federal minimum wage is currently $7.25 per hour. That minimum wage rate hasn’t been increased since 2009. If a minimum wage employee works a full year (52 weeks/year), he or she will gross $15,080 per year.

Bezos will soon marry a woman who will be his second wife. Bezos could hire his new spouse as CEO of the New York City Division of Amazon at a salary of $3,385,000,000 ( net new employees = 1). She could have her paychecks direct deposited to their joint checking account, should she so wish. As a practical matter, that money would be coming back directly to Bezos.

That leaves Bezos with another 24,999 new employees to hire. He could hire every single one of them at the federal minimum wage of $7.25 (earning just $15,080 per year). By doing this, Bezos meets his requirement to create 25,000 net new jobs at an “average” salary of $150,000 per year. In fact, under that employment scenario he’s exceeded that threshhold by about $480 (the average salary would be $150,479.40, to be exact).

Would that happen? Maybe not. Amazon would need some high-level and mid-level management employees and non-management supervisors, etc.

Still, you can put those numbers on your calculator and play with them any way you like for as long as you like, and you can come up with numerous distributions of 25,000 salaries that keeps the vast majority of Amazon’s prospective Long Island City employees at minimum wage while still enabling Bezos to claim $1.2 Billion in NY State tax credits.

Next time we’ll take a look at corporate welfare for Amazon.

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TVA to Decide the Fate of Paradise (3)

The Paradise 3 Coal Plant near Drakesboro, Kentucky

Today the Tennessee Valley Authority, the federally-chartered corporation that provides electricity to all or parts of seven southeastern states, will determine whether the Paradise 3 generating station near Drakesboro, KY and the Bull Run station in Clinton, Tennessee, both of which are coal-fired, will be closed. You might well ask why a coal-fired station would be named “Paradise.” If Adam and Eve had lived anywhere near the Paradise 3 station, as pictured above, they probably would have skipped that whole business with the serpent and just left on their own.

If the plants are to be closed, it won’t happen overnight. They’ll be phased out as part of a process that preserves grid reliability. President Drumpf has urged the TVA to keep the two plants open, which would help coal mining companies that contributed to his campaign. It would also help preserve some employment of coal miners, but any claim that keeping these two plants running is “bringing coal back” is absurd. The percentage of coal-fired generation has been on a steady downward march and, as explained in a recent post, that is not due to some alleged “war on coal.”

The reasons for shutting down these two plants shows the problems politicians encounter when their campaign claims to “dig coal” meet the real world. A report commissioned by TVA states that these two plants will have relatively high projected future maintenance costs and environmental compliance expenditures, high forced outage rates and are a “poor generation fit” for TVA’s future power demands.

Forget about air emissions for a moment. When coal is burned, it doesn’t just disappear. Just like the burned-out briquettes in the barbecue the morning after the party, coal leaves ashes behind; coal ash, to be specific. It’s a mess:

Coal Ash Pit

When it rains, water falls onto the open coal ash pit and seeps down through it, percolating into the ground below with bad effects on groundwater resources. When it’s dry, even a moderate wind can pick up coal ash and blow it over a wide area.

Coal-fired generation will be with us for some time yet, but over the long term it’s an 18th- and 19th-century technology that will go the way of the cross-bow, the walled city, and the eight-track tape.

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Of Democrats, Donatists and the Perils of Zero Tolerance

St. Augustine arguing with the Donatists

Virginia. Northam. Fairfax. You could almost be forgiven for expecting the phone to ring with the caller asking if you’d consider becoming the next Governor of Virginia. As The Clash put it back in the 80’s,

Should I stay or should I go?
If I go there will be trouble
And if I stay it will be double

The Democrats have chosen the path of zero tolerance, while the Republicans, led by an orange-hued exemplar of inhumanity and fraud, have occupied the territory of anything goes. Sadly for the country, both sides view any hint of moderation as going too far.

Zero tolerance sounds great and looks good on paper, but actual cases raise some tough issues. Humans, by nature, are imperfect, and their actions are often wrongful or just plain wrong. The controversies currently roiling the Democratic Party in Virginia have been triggered by the sexist, racist or even potentially criminal personal histories of certain incumbent Democratic politicians. Some scandals are just too big to tolerate. But how do we judge that?

A policy of zero tolerance can easily lead to absurd results because, by definition, it discards any notion of different degrees of culpability. Democrats would do well to remember that not all larceny is grand. The Republicans should be careful not to start laughing too hard or too soon because there are sure to be similar or worse stories that will become their own “damn spots” in the 2020 election cycle.

The Democrats are not the only organization to have dealt with this issue. If we could borrow Mr. Peabody’s Wayback Machine and set the dial to the the fourth century A.D., we’d see an uncanny similarity between the behavior of the Democrats today and the Donatists of that long-gone era.

What’s a Donatist? It’s not a person who likes or makes doughnuts.

Diocletian, the Emperor of Rome from about 284 A.D. to 305 A.D., was intent on restoring the Roman Empire to the glories of the second century A.D. Yes, even the ancients were afflicted with nostalgia. Not unlike some conservative politicians of the present day, Diocletian believed that the root cause of the reverses that had been suffered by the Empire were due to the loss of the traditional virtues of the Roman citizen: Roman men should serve the state in the military ranks, if not in the government; spouses should remain faithful to each other; and children should respect their parents and feed and house them in their old age. Most worrisome, however, was the perceived decline in the worship of, and sacrifice to, traditional Roman gods.

Sound familiar? It’s not known whether Diocletion had any MRGA (Make Rome Great Again) togas printed and distributed to his followers, but it wouldn’t be surprising.

Diocletian believed that one of the big causes of the decline in worship of traditional Roman deities was this Christianity business that got started in Judea. He needed to get rid of the Christianity cult, and he started the last great persecution of Christians in the Roman Empire. New edicts were issued. Christians could not sue in Roman courts; they could be sued, but could not defend themselves. Freed slaves who had become Christians were re-enslaved. Christians who refused to obey could be burned alive, or be fed to the lions in the local amphitheater for entertainment of the masses. (No ESPN then.) Most important for our purposes, though, Christians were required, on pain of death, to hand over all of their sacred books and scriptures for destruction.

Lions expressing dietary preferences.

Early Christian theology was far from uniform. In some areas Christians threw themselves into the flames rather than surrender their written scriptures, while in others, handing a few written texts over to a Roman magistrate was no big deal. Those who surrendered the scriptures were called traditors, from the Latin trado, tradere, meaning to hand over or deliver. The modern English term traitor is derived from traditor.

In North Africa, the Diocletian Persecution gave rise to Donatism. The Donatists held that true believers should have nothing whatsoever to do with any traditor bishop or priest. As is often the case with any religious principle, it quickly expanded far beyond its original scope and became a zero tolerance dogma: any sacrament administered by polluted hands was itself polluted and ineffective. For the Donatists, a priest or bishop living in sin was incapable of administering sacraments. Donatists denied the spiritual powers of clerics of whose morals they disapproved. Given the highly questionable condition of ecclesiastical morals in the later Roman Empire, non-Donatist prelates saw that this doctrine could destroy the entire structure of the priesthood. The flock ought not to sit in judgment on the pastor. Like any zero tolerance policy, in practice it meant that its enforcers would rather split the party than split the difference, as the saying goes.

On the Republican side of the aisle, zero tolerance takes a different form and means that compromise is outlawed. For Republicans, compromise means a capitulation, a betrayal of their cause, whether it’s a wall or tax cuts or anything else.

The Donatist doctrines never took root in the Christianity of continental Europe, though they continued in North Africa for another four centuries without any real resolution. Whether you were a heretic or not depended on whether your side was in the majority or the minority in your area. The controversy only went away when the Islamic wave swept westward from Arabia across the North African region.

And the rest is history….

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The Green New Deal

Rep. Alexandria Ocasio-Cortez (D-NY, 14th Dist.)

There’s a lot to digest in the Green New Deal Resolution introduced by New York Representative Ocasio-Cortez.

First, though, I have to hand it to Rep. Ocasio-Cortez. Being referred to just by your initials is a mark of high achievement in American politics. Exactly what it means can be debated, but there can be no doubt that it implies some degree of general recognition among the public. We had FDR. We had JFK. Then came LBJ. Eisenhower was called Ike, of course, but he never ascended to the heights DDE. That was probably better for him since those initials are uncomfortably close to DDT. Reagan was never RR. These instances could be multiplied.

Rep. Ocasio-Cortez has been in office for just over a month and she’s already earned her initials: AOC. Whether or not you like her or her views, she’s gained recognition, and some popularity, because she’s correctly viewed as putting the demos back in (little “d”) democracy. Democracy is not equivalent to populism, but that’s a discussion for another day.

Back to the Green New Deal. Section (2)(C) of the GND Resolution calls for meeting 100 percent of the power demand of the United States through “clean, renewable and zero-emission sources…” That could portend some problems for AOC’s supporters because “renewable” and “zero-emission” are not the same. As Voltaire said, “if you wish to debate with me, define your terms.”

Exelon views nuclear generation as zero-emission. Is nuclear generation “clean”? If you formerly lived near Three Mile Island, Chernobyl or Fukushima, your answer is probably a resounding “no!” Likewise, as people who live (or used to live) in those three places will tell you, nuclear power is zero-emission…until it isn’t.

That’s not to say that nuclear should not be part of a balanced power generation portfolio, but, as  I’ve discussed in the Sparkspread over the last several years, two major problems in nuclear generation have to be addressed: spent fuel disposition and regulatory capture. Dealing with those two issues will go a long way to clearing various energy-related poisons from the American political bloodstream. Unfortunately, there has been thus far insufficient political will to deal with either of these issues.

A ten-year schedule to move the U.S. to 100% renewable electricity generation is a laudable goal. But it will be far more ambitious than JFK’s end-of-the=decade moonshot goal of 1961.

If you want more renewable generation, you’ll need more transmission lines – new ones. Not everybody likes new transmission lines, especially when they come to close to their homes and farms, or affect the vistas of nature in America.

Renewables are generation resources, and while renewable generation forecasting has improved with improved meteorology, renewables are not dispatch resources. If a coal-fired or natural gas-fired station goes down, or if its access to the transmission grid is lost for some reason, that incident may occur at a moment when sunlight or wind conditions are insufficient to enable a renewable generating station to supply power to the system.

That is not to say that renewable generation should not be developed, or that it’s worse than coal or natural gas or nuclear, or that there should be no ambitious plan to substantially expand renewable generation over the next ten years. But every form of electricity generation, just like every other discrete product of human ingenuity, has its problems. I’m a big believer in making no small plans, but at the same time don’t get too far away from the known facts.

 

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