A Comment on the Aquila Back Forty Wetland Permit

AquilaWetlandMap

An Aquila Resources map outlines the wetlands that will be impaired by its open pit sulfide mine on the Menominee River.

Earlier this morning, I sent this comment on the Aquila Resources Back Forty Wetland Permit to the Michigan Department of Environmental Quality. Public comments may be submitted here until February 2nd.

To the MDEQ:

You have probably already received a number of comments on the Back Forty Mine wetland permit application from people who live out of state, as I do. Some of those opposed to sulfide mining on the Menominee River live on the Wisconsin side, just across or downstream from the proposed mine site. Others, across the country and around the world, are deeply concerned about the cumulative effects the current leasing, exploration, and sulfide mining boom around Lake Superior will have, and are alarmed to see federal and state regulatory agencies abdicating their responsibilities to the American public in order to do the bidding of foreign mining companies.

Denying the wetland permit is the only prudent and responsible course for MDEQ to take.

As the organization American Rivers noted when it placed the Menominee River on its list of “most endangered” rivers in 2017, the Aquila Resources Back Forty project poses a “significant threat” of acid mine drainage to the river, and to the “cultural and natural resources of the Upper Peninsula, Wisconsin, and the Great Lakes Region.” Allowing Aquila to destroy or compromise area wetlands to construct its mine will only heighten the risk of large scale environmental catastrophe.

The risk is compounded by both regulatory and scientific uncertainty. As you are well aware, the Menominee Tribe maintains that the MDEQ lacks authority to issue this permit, because under provisions of the Clean Water Act the Menominee River and its wetlands are federal waters. This question remains unsettled. In the meantime, a third party, independent review of Aquila’s wetland permit application found errors and inconsistencies regarding the company’s findings on groundwater drawdown and the mine’s feasibility analysis. The wetland permit application you are considering is either flawed, because the people who filed it are incompetent, or misleading, because they have something to hide.

Deceit might be Aquila’s best strategy at this point. The Back Forty project has no claim to social license — none. The Menominee and other Wisconsin tribes have been adamant in their opposition. Local residents are overwhelmingly opposed as well. Of the 90 people who had the opportunity to speak at the January 23rd public hearing in Stephenson, only 4 could muster an argument for the mine, mainly because they put stock in the vague promise of “jobs” made by mining proponents. The rest — 86 out of 90, or 95 percent — stood in opposition to the mine.

Even if Aquila is not deliberately misleading the MDEQ and the public, the Canadian company has demonstrated time and again that it is not a responsible steward of Michigan or Menominee lands. In archaeological surveys of the region, for instance, Aquila claims to have uncovered nothing of “historical significance.” That is telling. These surveys have found nothing because they fail, or refuse to see, the significant Menominee history and culture that is right in front of their eyes. As tribal members have made repeatedly clear, Menominee history, ancestry, and culture begin and end in the river, the land, and the forest. What is historically significant or meaningful is not merely a collection of artifacts; it is a way of life and a deep connection to place. The Back Forty Mine threatens to destroy that connection.

In sum, the wetland permit application is flawed, the company has no social license to operate, and allowing the Back Forty to go forward would violate the public trust.

Another Note on the Boundary Waters Reversal

Jorjani Calendar

A 25 July 2017 entry from Daniel Jorjani’s calendar shows a meeting with Antofagasta Plc on the Twin Metals project.

One point I hoped to get across in Monday’s post about the Boundary Waters reversal has to do with journalism, or, more broadly, with storytelling. Just to highlight: scandal-mongering that generates clicks doesn’t necessarily get at the more prosaic and more complex truth of the story, and may end up doing a disservice. In the case of the Boundary Waters reversal, it is tempting to focus on the story of Chilean billionaire Andronico Luksic Craig and his Washington, D.C. tenants, Ivanka Trump and Jared Kushner. Was Luksic Craig’s purchase of the mansion where Jared and Ivanka now live an opening bid? Was the reversal connected to the rental?

This story of the rich and famous still merits investigating, but it carries with it a whole set of ideas — exaggerated and somewhat cartoonish ideas — of what corruption looks like: foreign billionaires, mansions, nepotism, winks and nods (remember what Luksic Craig said about meeting Trump at the Patriots’ game: “lo saludé.” “I said ‘hi’”).  All of those elements are certainly in play here, and they are part of what makes this administration appear so unabashedly corrupt and downright villainous.

At the same time, the story of Luksic Craig and his D.C. tenants could turn out to be a red herring, or what nowadays people call a nothingburger or fake news. Besides, there’s another, more immediately credible story that’s just there for the telling. What it lacks in tabloid glamour it makes up for with evidence. It unfolds among the banalities of meeting rooms, conference calls, memos, and after work events. This is the story Jimmy Tobias pursues in an excellent piece in the Pacific Standard, which I had not read before writing my post (and which, after reading, I linked to in a postscript).

Tobias beat me to the punch on the FOIA request, and obtained Principal Deputy Solicitor Daniel Jorjani’s calendar from May through December of 2017. He identifies two meetings about the Twin Metals project. The first is on June 14, 2017, with Raya Treiser and Andy Spielman of WilmerHale, the law and lobbying firm, on behalf of Antofagasta Plc.

Spielman is the Chair of WilmerHale’s Energy, Environment and Natural Resources Practice, and his name appears on the calendar heading, so we know that this is a high priority matter for the lobbying firm and presumably for the Department of Interior. And Treiser comes directly from the Department of the Interior, where she served under President Obama. She helped to “streamline” permitting on large infrastructure projects, and worked on the reform of offshore drilling regulations and energy development in Alaska. Now, as her biography on the WilmerHale site informs us, she has “successfully leveraged her substantive knowledge and insight into government processes.”

The second meeting is directly with Antofagasta Plc: the Chilean mining company comes to the Department of Interior to discuss its Minnesota claim, and it appears the Department rolls out the red carpet. WilmerHale had done its work. In addition to Principal Deputy Solicitor Jorjani, thirteen administration officials are in attendance, representing the highest reaches of the Department of Interior, the Bureau of Land Management, and the Environmental and Natural Resources Division of the Department of Justice. As Tobias notes, no conservation groups were invited to discuss the reversal with the Department of Interior. This was a conversation for insiders only.

At the center of this story is not a mansion, but a revolving door (and if you are not familiar with Bill Moyers’ short video essay on the subject, you should be). This feature of the story becomes even more apparent when we look at a couple of other meetings on Deputy Solicitor Jorjani’s calendar that Tobias didn’t flag but are connected with the Boundary Waters reversal. One is a Friday, May 26 call with Rachel Jacobson of WilmerHale, regarding a “DC Bar Event”; this call or this event might well have provided an opportunity to tee up the Twin Metals issue. It is the first contact WilmerHale makes with Principal Deputy Solicitor Jorjani— and who should they choose for that task but Jacobson, who held Jorjani’s job of Principal Deputy Solicitor under the Obama administration.

Then on Thursday, September 7th, when work on the reversal memo is presumably well underway, there is an internal meeting on Twin Metals: Jorjani with Jack Haugrud, who was Acting Secretary of the Interior until Zinke’s appointment, and Joshua Campbell, an Advisor to the Office of the Solicitor. Campbell is profiled here, on Western Values Project “Department of Influence” site, documenting the revolving door between special interests and the Department of Interior.

In these meetings, the public interest does not even come into play.

Postscript: Today, as I was writing this post, the Washington Post reported that the Forest Service will cancel a planned environmental impact study and instead conduct an abbreviated review of the Obama-era proposal to withdraw the Superior National Forest lands near the Boundary Waters from minerals exploration for up to 20 years. The story also appears in the Star Tribune. Things are moving fast now, and pressure is mounting.

Is Corruption at Interior Putting the Boundary Waters At Risk?


On the afternoon of Friday, December 22nd, with Congress in recess and most Americans already starting their holiday celebrations, the Department of the Interior issued a 19-page legal memorandum reversing hard-won, eleventh-hour Obama-era protections for the Boundary Waters Canoe Area Wilderness in northern Minnesota. Signed by Interior’s Principal Deputy Solicitor Daniel Jorjani, Memo M-37049 allows Twin Metals, a wholly-owned subsidiary of the Chilean conglomerate Antofagasta Plc, to renew its leases of Superior National Forest lands where it proposes to mine copper, nickel, and other minerals for the next 100 years.

Even one year of mining would scar the land, destroy wetlands, wreck the forest and fill it with industrial noise, and pollute the water. And this kind of mining — sulfide mining — always risks major environmental catastrophe, long after a mine is closed and the land reclaimed. After a brief reprieve, the Twin Metals project is again threatening this unique public wilderness area, along with the thriving tourist and outdoor economy that has grown up around it.

The reversal was immediately met with allegations of corrupt dealing. In a statement calling the move by Interior “shameful,” Minnesota Governor Mark Dayton cried foul.

A December 22nd headline in the Wall Street Journal offered what appeared to be a straightforward explanation: cronyism. “Trump Administration to Grant Mining Leases That Will Benefit Landlord of President’s Daughter Ivanka Trump.” But Chilean billionaire Andronico Luksic Craig, whose family controls Antofagasta Plc, and who only after Trump’s election purchased the Washington, D.C. mansion Ivanka Trump and Jared Kushner rent for $15,000 a month, claims never to have met his tenants, and says he met Donald Trump only once, at a New England Patriots game.

It’s unclear whether Luksic Craig’s denials can be taken at face value and whether they are enough to dispel the notion that the reversal was made directly to benefit Antofagasta or the Luksic family. What prompted the action? Who directed it? Who contributed to the memo, and who reviewed it? What conversations did Interior Secretary Ryan Zinke, Deputy Solicitor Jorjani, and other administrators have about the reversal, and with whom?

The public deserves clear answers to these questions, and last week, I submitted a FOIA request to the Solicitor’s Office at the Department of the Interior, to see if I might gain some insight into the process behind Memo M-37049. At the same time, it’s worth noting that these are not the only questions worth asking. Luksic Craig and his Washington, DC mansion may make good headlines, tabloid fodder, and Twitter snark, and there is no ignoring the whiff of impropriety about his real-estate dealings with the president’s daughter and son-in-law, who also happen to be senior White House advisors. But that’s not the whole story here. A scandal involving Luksic-Craig and his tenants, or some direct dirty dealing between Antofagasta and Interior, might eventually come to light, but the prospect of such a scandal might also serve to distract us from other, large-scale corruption that continues to put the Boundary Waters — and other public lands and waters — at serious risk.

Put the reversal in context. Consider, for example, the Executive Order, entitled “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals,” that was issued just two days before the Boundary Waters reversal, and which, like the Interior memo, sets the stage for exploitation of mineral resources on public lands. The EO appeared to be the policy outcome of a U.S. Geological Survey of the country’s critical minerals resources published on December 19th; but Trump’s December 20th order was years, not one day, in the making.

The EO revives Obama-era legislative battles over so-called strategic and critical minerals and declares victory by executive fiat. Back in 2013, pro-mining measures introduced in both the House (HR 761) and the Senate (S 1600) promised to “streamline” the permitting process for multinational companies mining on federal lands, like Superior National Forest. The Obama administration opposed them on the grounds that they would allow mining companies to circumvent environmental review. Proponents of HR 761 called it cutting red tape; the resolution actually tried to shut the public out of the process. It touted jobs, but, as critics pointed out, provided no real strategy for creating them; and it hawked anti-Chinese hysteria of the kind that candidate Trump regularly advanced. (Tellingly, House Republicans rejected a motion that would have barred export to China of strategic and critical minerals produced under the HR 761 permit, in tacit acknowledgment that China drives global demand for copper and nickel.) Coming just two days after this EO, the Boundary Waters reversal looks less like a one-off favor to a Chilean billionaire, and more like a coordinated move in a broader campaign.

This subversion of public process is not just the dirty dealing of a few bad actors. It’s also the consequence of weakened institutions; and institutional sabotage — or what Steve Bannon pretentiously called the deconstruction of the administrative state — is the precursor to large-scale corruption. Scott Pruitt might still be the poster boy for putting the fox in charge of the henhouse, but Ryan Zinke appears to be pursuing a similar brief at Interior. Though his bungling of the offshore drilling announcement made him appear incompetent, he is making big changes to favor big mining. The Secretary has made it one of his agency’s top ten priorities to “ensure access to mineral resources” and committed to minimizing “conservation objectives” that interfere with extractive industrial development. His plan to shrink Bears Ears followed a map drawn by a uranium mining company. At Grand Staircase-Escalante and Gold Butte National Monuments, Zinke has virtually surrendered vast swaths of public lands to extractive industry.

The Boundary Waters reversal, too, looks like the work of institutional saboteurs. It settles a lawsuit against the Department of the Interior by conceding that the government should not have discretion over public lands when commercial interests are at stake. Its author, Deputy Solicitor Jorjani, did a brief stint at Interior during George W. Bush’s second term, but it was his high profile job as Executive Director of the Koch Institute that distinguished him as the right man for Ryan Zinke’s Interior. As Polluter Watch, a project of Greenpeace, notes, Jorjani was the Koch Institute’s very first hire, and among the five most highly compensated employees at the Charles Koch Foundation. Now, along with Scott Cameron and Benjamin Keel, Daniel Jorjani works with the team at Interior charged with “reviewing rules their previous employers tried to weaken or kill,” according to reporting by the New York Times and Pro Publica. Similar deregulation teams, “connected to private sector groups that interacted with or were regulated by their current agencies,” were formed at all administrative agencies. The teams put public institutions at the service of powerful patrons, subordinating public protections to private interests.

This capture and sabotage of government agencies compounds and multiplies risk, removing public safeguards and compromising appointed guardians. In the case of the Boundary Waters, the risk of irreversible damage and environmental catastrophe would extend far beyond the mining location, because mining in Superior National Forest would also significantly intensify the cumulative effects of the recent boom in leasing, exploration, and drilling throughout the Lake Superior watershed.

All around the greatest of the Great Lakes, the industrial footprint of sulfide mining operations is expanding rapidly. Just to the southwest of the Boundary Waters, for example, Polymet, a company that has never operated a mine before, proposes building an open pit copper and nickel mine that will require water treatment and tailings dam maintenance “in perpetuity” — that means forever. Meanwhile, Scott Pruitt is dismantling federal rules requiring hardrock mining companies to take financial responsibility for cleanup.

State regulatory agencies are poorly equipped to oversee these new projects. They often fail to give the public a meaningful voice in permitting, or obtain the required prior consent from the region’s Indigenous nations. For their part, many state politicians are racing to deregulate, or at least accommodate, the mining companies. Just this past October, Wisconsin republicans repealed the state’s Prove it First law, which required copper, nickel and gold miners to prove that they could operate and close a sulfide mine without producing acid mine drainage. (They never proved it.) In Michigan, where Canadian mining companies are moving aggressively into the Upper Peninsula, State Senator Tom Casperson has just proposed giving mining companies and other representatives of industry “disproportionate clout” in the review of environmental rules.

Obviously this all goes way beyond doling out favors to billionaire friends or cronies at Mar-A-Lago, and it didn’t start when the Trumps came to town. Until it is called out, voted out, and rooted out, corruption at this scale – coordinated, institutionalized, systemic – will make a mockery of rule-making and oversight, and put our public lands, as well as our public life, at risk.

Postscript: This January 10th article by Jimmy Tobias in the Pacific Standard takes a careful look at Daniel Jorjani’s calendar, which was obtained through a records request, and identifies two meetings with representatives of the Twin Metals mining project: a June 14, 2017 meeting with Raya Treiser and Andy Spielman of WilmerHale on behalf of Twin Metals, and a July 25th meeting with Antofagasta Plc. I discuss these meetings in this follow up post.

The Last Ask — A Look Back At Obama’s Parting Request, One Year Ago Today

It came as no surprise that an outgoing president would make the obligatory noises about “the peaceful transfer of power from one freely elected president to the next,” as President Obama did in his final speech, delivered in Chicago one year ago today. It was a theme used to quell fears and stifle protest, to give Trump “a chance to govern,” as both President Obama and Vice President Biden put it after the election, and it was offered as the reason former presidents and other politicians would overcome their appreciable dismay at the election’s outcome and attend the inauguration ceremony on the 20th.

Remember? You could not turn on a television, open a newspaper, or click on a mainstream news site in mid-January of 2017 without being told that on inauguration day we were going to witness power’s peaceful transfer. Very few people making these presentations went much further, at least publicly, to distinguish succession from transition, or talk in a serious way about power, how it is peacefully transferred, or to raise the questions of legitimacy and political authority that attend the transfer of power.

Those questions were, however, hanging in the air, like the dark clouds that would gather over the Mall on inauguration day, and over the past year, with the Mueller investigation and the current president’s daily demonstrations of unfitness for office, they have only grown more urgent and important. Considerations of power that were once the preserve of political theorists are now millions of people’s daily, top-of-mind concerns — as they should have been all along.

Obama’s Chicago speech did little to dispel the doubts and fears people had, and still have, about his successor; and it did not directly address the big question on nearly everyone’s mind that day, and every day since the 2016 election: what is to be done? After the abortive and misguided recount effort in November, the shameful but predictable acquiescence of the electoral college in December, and the first signs of trouble on the Russian front, the hope in early January was that the president would say or do something (what?) to change the course events had taken, or he would make some kind — any kind! — of intervention or call to action.

But this is precisely what Obama did not do. He talked about the forces threatening American democracy (income inequality, racial division, political polarization) which had brought us to this ugly juncture. He celebrated “the power of ordinary Americans” to bring about change, “to get involved, get engaged, and come together to demand it,” and the “power” (the word echoes throughout the speech) “our participation, and the choices we make” give to the Constitution. All this talk about the power of the people might have amounted to a kind of preemptive bid, made before the upcoming official ceremony transferred executive power to the loser of the popular vote. But the president never made that bid explicit, and turned deliberately away from asking people to take action.

In fact, when Obama presented the peaceful transfer of power as a “hallmark of our democracy,” and the remark elicited boos and shouts of “No!” — cries of resistance, threats of upheaval — he quieted them (“no, no, no, no, no”). By the fifth refusal, the crowd had backed down. What else could he have done? What would have happened had he assented, publicly, to that No!? Or if he had simply stepped back from the podium and let the tide of emotion roll over the crowd?

Over the past year I have often thought about how much hung in the balance at that moment, and how with a gentle reprimand the president took the crowd right back into the flow of his speech. He stumbled just a little after all those impromptu “nos,” but recovered balance by using his index finger to guide him through the phrase on the prompter: “the peaceful transfer of power.” Regaining his composure, he kept the crowd in check – and they applauded him. (We cannot imagine his successor doing the same, or even trying; it is much easier to imagine him inciting a riot.) He said he was stepping down to rejoin us as a citizen, but he had not yet let go of the reins. By the end of the speech, when the president issued his final charge or made what he called his “final ask,” the audience was roaring:

My fellow Americans, it has been the honor of my life to serve you. I won’t stop. In fact, I will be right there with you, as a citizen, for all my remaining days.
But for now whether you are young or whether you are young at heart, I do have one final ask of you as your president — the same thing I asked when you took a chance on me eight years ago.
I am asking you to believe. Not in my ability to bring about change — but in yours.
I am asking you to hold fast to that faith written into our founding documents; that idea whispered by slaves and abolitionists; that spirit sung by immigrants and homesteaders and those who marched for justice; that creed reaffirmed by those who planted flags from foreign battlefields to the surface of the moon; a creed at the core of every American whose story is not yet written:
Yes, we can.

The delivery was a little flatter than it had been in previous years. But who could not have been impressed, at the very least, by the rhetorical consistency the president had managed to achieve over the course of two terms in office? History rarely allows anyone — let alone a president — this measure of consistency, and the election in November of 2016 had marked nothing less than a violent historical rupture. This final ask didn’t acknowledge the cataclysm. It returned, instead, to familiar themes, central to Obama’s own biography, and situated the eight years of Obama’s presidency on the arc, or what he called “the long sweep,” of history that bends toward justice. This last ask was also a tell — one last public demonstration of President Obama’s leadership style. It took the form of a soft directive.

One year on, however, it’s difficult to say where this parting request, and the end of Obama’s presidency, left us. Was this last ask anything more than a feel-good exhortation? The president asked us not to do something, but simply to believe in our ability to do something. That might have been as far as he could go, there on that public platform, with emotions still raw from the election; and of course there’s a decent argument to be made that taking ourselves seriously as historical actors, people with the “ability” to bring about change, might be essential to disposing us to do anything at all.

At the same time, “Yes, we can” does not necessarily mean we will, or we ought, or even that we are doing what we can. There is a good distance to travel from believing in oneself as a person capable of doing to the doing itself. Setting intentions, planning projects, coordinating with others, anticipating consequences — all that still only takes us to the edge of action, as the Community Organizer in Chief must know. The great risk of political action comes when we apply power, when we move from can to will. Asking people to believe they can act, but not asking them to do anything in particular, might keep them temporarily from incurring that risk and rushing into the breach, but it also makes action seem like a distant possibility, not an urgent necessity.

We should hardly have expected the president to call for resistance, even if he shared the sense that something — but what, exactly? — had to be done. What he promised instead was redemption. The two could not be less different. If redemption assures us that We Shall Overcome, Someday, resistance plants its feet firmly in the present and declares, We Shall Not Be Moved. Resistance is mounted out of necessity. Strikes, sit downs, shutdowns, blockades, riots, raids — these actions were not always or primarily animated by some great faith in just outcomes, though that faith may have arisen in the course of the fight or helped sustain the fighters. People have made many gains by refusing and resisting power’s encroachments, by saying No, You Cannot long before they were able to believe in Yes, We Can. In many cases, things just become so intolerable, the long train of abuses and usurpations, as the Declaration has it, become so unbearable, that ordinary people feel they must stand their ground and resist.

We are living in that kind of moment. The current political crisis demands more than faith. We have to get to work. We should do so with the understanding that resistance, as the very word suggests, will help us push back against the forces intent on destroying the American democratic order, but it is not the extent or end of our power. It is, rather, the limit of theirs. This distinction matters, even though we are still in the thick of the fray. It invites us to think about near- and long-term commitments, and the nature of our power.

Our power is not at all like the power of command that was transferred — I won’t say peacefully, given all the damage that has already been done  — from one office holder to the other last January. It’s another kind of power. It’s the power we confer upon each other, not through official ceremonies but through the rituals of everyday life; it’s power we hold together, not just as individual rights holders with claims and grievances, but in the first person plural, as a “we.”

We realize and renew our power when we gather or assemble publicly. We may not have the power to issue directives or orders, but as the president reminded us, we can make demands – of those who hold political power (by voting, marching, practicing civil disobedience, and so on) and, just as importantly, of each other. We can deliberate what to do, coordinate efforts, and hold each other mutually accountable. There’s power in all of that – some power, maybe not enough all by itself to get us to the other side of this crisis, but some; and we have not done nearly enough to develop it, test its limits or discover its possibilities. (Instead, we have built and continue to prop up organizations and institutions that require its surrender.) Ultimately, it’s the power we need to govern ourselves responsibly and vigilantly, after we have put an end to current abuses and usurpations.

What should we do? This wasn’t the question for the outgoing president to put to us, but one for us to put to ourselves, and in this form: in the first person plural, and with that modal verb should (or ought) to highlight obligations and responsibilities, or right action. There’s not one answer to this question, or an end to its deliberation; nor will there be one solution to the crisis, such as the Mueller investigation, a medical diagnosis, the emoluments clause, the 25th Amendment. None of those things alone will do it, because “it” goes (way) beyond removing an abusive and corrupt authoritarian and his cronies from power. “ It” is up to us, because ultimately it comes down to reclaiming and realizing self-governance.

Every refusal, however small, to yield to authoritarian attention-stealing, rule-breaking and administrative sabotage will help safeguard our authority to govern ourselves, just as every act of decency and respect, no matter how small, will count as a victory against the moral coarsening we have undergone over the past year. Obama himself made this last point a couple of weeks ago in an end-of-year, schmaltzy Twitter thread of “stories that remind us what’s best about America” and demonstrate that “each of us can make a difference, and all of us ought to try.” Yes, we ought.

MCRC v. EPA at the Sixth Circuit

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“Well, if you took all these papers,” said EPA counsel Ellen J. Durkee, referring to the various proposals put forward for CR 595, “what you’d have is their proposal in June, their proposal in July, their proposal in October, their proposal in November, their proposal in, you know, different — twice in December…. really what’s needed is they have to say…what is the proposal that they consider their application at this point.” A good review of the various proposals for the Eagle Mine haul route can be found here.

In remarks before the Sixth Circuit Court of Appeals on Wednesday, Mark Miller of the Pacific Legal Foundation waved the flag of “cooperative federalism,” complained that the Environmental Protection Agency has “gone way beyond the powers that Congress gave them,” and even, at one point, raised the familiar spectre of an anti-mining conspiracy at the EPA and the Army Corps of Engineers.

They did not want a permit here from before. In the pre-application process, there was a meeting, among the parties — not among Marquette County Road Commission, they were not invited — but the government said we are not going to approve this road project. This was a well-known proposed road project from a mine to a mill, and the EPA and the Corps wanted none of it. So that’s why it was futile factually.

Miller has elaborated on these arguments in the Wall Street Journal and elsewhere. As I have suggested in previous posts on Marquette County Road Commission v. EPA, grandstanding arguments like these are intended to raise the profile of this dispute and make it about much more than a haul road. They have been used, repeatedly, to connect the Road Commission’s case with a larger, coordinated effort — a right-wing, dark-money political project — to sideline federal regulators in Michigan and weaken enforcement of the Clean Water Act; stifle local environmental watchdogs; and arrogate the authority and power to direct economic development in the Upper Peninsula to a set of undisclosed actors.

But on Tuesday, those arguments didn’t count for much in Miller’s presentation before the Sixth Circuit panel. At the center of the dispute is still the question whether EPA’s objections to CR 595 constitute “final agency action,” as the Road Commission claims, or if they are an “interlocutory step” (in which case, the Road Commission can still take the EPA’s objections under advisement and go back to the Corps with a proposal).

Miller claimed right off the bat, in the very first sentence of his argument, that EPA’s objections were tantamount to a “veto.” I’ve written about this argument before. On Tuesday, the judges wanted to know what exactly Miller meant by that word. “You keep saying the EPA vetoed the application for the permit,” asked one of the judges just four minutes into the proceedings. “What do you mean by that?” Ten minutes later, another Judge indicated she was still not satisfied on this point:

JUDGE: What makes it — you keep using the word veto.
MILLER: Yes, your honor.
JUDGE: But it was really objections, right?
MILLER: Your honor I think that’s a distinction without a difference because effectively here the EPA has twice said, “no, DEQ, this permit you’re ready to issue is not good enough for us.” And the reasons the EPA was giving were not within its powers to give. Then the EPA knew it was taking advantage of the statute to say well now it’s going to bounce to the Corps.

That there is no “difference” between objections and vetoes is critical to Miller’s argument for futility, which claims it would be a “farce” for the Road Commission to go back to the Corps.

When it came to her turn, Ellen Durkee, arguing for the EPA and the Army Corps, pursued the point:

I’d like to speak to this issue of this continued use of the word “veto,” because I think that that is, seems to be the critical characterization for the plaintiff’s argument here. A veto means that you cannot get a permit. In [Section] 404 [of the Clean Water Act] itself, there’s a distinction between what happens in 404j with EPA objections and a true veto, and you know they — in this case, the EPA objection gives the state opportunity to take action. And then when the state, as it did here — there’s an impasse, because they didn’t take action within the statutory time, it simply shifts the permitting authority. That is not a veto. The Corps may look at this and say we think it’s satisfactory. EPA, you know, they may come up with the provisions that they need to satisfy that, the objections, in which case they could still get a permit. What [the Road Commission] simply did was stop the process and decide not to continue.

And the word “veto” was still begging questions at the end of the proceeding, when Judge Helene N. White went back to Miller.

JUDGE; Let me just ask you this question. Once the EPA made its objections, the DEQ still had three options, correct?
MILLER: Yes your honor.
JUDGE: And they were grant, deny, or do nothing.
MILLER: In this case the DEQ threw its hands up because they could never — if they granted the permit, the landowner would have nowhere to go because the EPA made it clear it was not going to sign off on it. So they deny it and then transfer– they threw their hands up because the reasons the EPA gave were improper under the statute.
[Crosstalk.]
MILLER: Yes, your honor.
JUDGE: Ok. Did they have three options? Grant, deny, or do nothing?
MILLER: Your honor, they had the options, but ultimately once the EPA gives arbitrary and capricious objections they really had no choice.
JUDGE: But they could have said, they could have denied the permit, right? They could have said we are honoring the objections and we deny the permit.
MILLER: Right and they didn’t, your honor, respectfully they didn’t.

You can listen to the whole proceeding here, or read my (imperfect) transcript of the proceeding.

Six Questions about Asking and Sophia AI

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The company that makes Sophia, Hanson Robotics, has become adept at linking different, highly-specific algorithms like image recognition and speech transcription in a way that mimics what humans might be doing when we hear a question and formulate a response.
qz.com

Sophia AI’s mimicry of “what humans might be doing when we hear a question and formulate a response” is mostly “theatrics,” Hanson Robotics CTO Ben Goertzel openly admits. That is probably why Sophia AI has so far found her most receptive audiences on TV talk shows and in corporate theater, where she won’t have to undergo too much scrutiny. But with the launch of singularityNET, which promises to put “Sophia’s entire mind…on the network,” Hanson says that “soon…the whole world will be able to talk to her.”

I would offer that talking “to” Sophia AI — or using Sophia’s chatbot function — is still a long way from conversation in any meaningful sense of the word, because it does not involve talking with a second person. This inconvenient truth about Sophia AI has not prevented the Saudi government from naming Sophia the first “robot citizen” of the Kingdom (and the grim irony of “a robot simulation of a woman [enjoying] freedoms that flesh-and-blood women in Saudi Arabia do not” was not lost on the Washington Post); nor has it prevented tabloids from screeching about Sophia stating she would like to have a family.

If personhood is setting the bar too high, I’m content to consider merely how Sophia AI handles asking. This would involve some of the considerations I’ve been exploring in my posts on The Asking Project: what we “might be doing” (as the writer in Quartz puts it) when we ask or hear a question; what’s involved, and what’s at stake, when we address others with a request or demand; and how these and other interrogative activities might be involved in our (moral) status as persons.

For starters, here are half a dozen questions about asking and Sophia AI that occurred to me after watching her video performances. I suspect there is a clear answer to the first, and the remaining five require some extended discussion.

1. What syntactic, grammatical or other cues (e.g., intonation) does Sophia AI use to recognize a question, and distinguish it from a declarative statement?

2. Can Sophia AI distinguish a request from a demand? A demand from an order? If so, how is this done? If not, what does this shortcoming indicate?

3. Will Sophia AI ever refuse to comply with a request? Leave a demand unmet? Defy an order? If not, how should these incapacities limit the role of Sophia or any AI?

4. Could a demand ever create in Sophia AI a sense of obligation? If so, what might this “sense” entail? Can we speak coherently of AI rights, or even place limits on AI’s role, without first developing this sense?

5. Will Sophia AI ever be capable of deliberating with others and reaching consensus or agreement?

6. What would be required for Sophia AI to deliberate internally? To be capable of asking herself?

About that shift in consciousness we so urgently need

Upon seeing these poll results, a friend commented that most people who voted for “shift in consciousness” probably think that others, and not they themselves, have yet to make the shift. If he is right, the “shift” vote comes from people who think of themselves as already having crossed over to the other side. But have they — have we? 

Just what “consciousness” in this case means, or what the “shift” might require of us, remains unclear; and one weakness of this poll (it has many, as Joanna Boehnert and others were right to point out) is that it does not specify what that shift might involve.

I’ve seen people toss the phrase around, and included it here hoping to get a better sense of what they mean by it. Are we talking about widespread public awareness of climate risk, or the knowledge that human activity has caused the climate to change, or the conviction that we can — and must — do something about it? Are we talking about hope? The defeat of climate despair? A new view of the world and our place in it? 

No matter how we may choose to define the shift, it would seem that we have to continue to root out denial, as John Rehm suggested. To be effective, any “shift in consciousness” would at the very least require that people take responsibility. 

That in itself presents a formidable task, especially here in the United States, where an entire political party is dedicated to climate change denial. But it’s also a problem all over the place, everywhere we turn, if we think about how many of our everyday actions involve denial or willful blindness, and how easily our acts can contribute to “a set of acts” that together will cause harm (to borrow Parfit’s phrase). This is why, as Orla De Díez remarked, we have to design to make it “easier for people to behave more sustainably.” We can’t wait for some great awakening.

Acts and Sets of Acts

This passage in Derek Parfit’s Reasons and Persons (1984) deserves calling out, not least because it sets the stage for the arguments against climate change despair I reviewed in a previous post.

In small communities, it is a plausible claim that we cannot have harmed others if there is no one with an obvious complaint, or ground for resenting what we have done.

Until this century, most of mankind lived in small communities. What each did could affect only a few others. But conditions have now changed. Each of us can now, in countless ways, affect countless other people. We can have real though small effects on thousands or millions of people. When these effects are widely dispersed, they may be either trivial, or imperceptible. It now makes a great difference whether we continue to believe that we cannot have greatly harmed or benefited others unless there are people with obvious grounds for resentment or gratitude. While we continue to believe this, even if we care about effects on others, we may fail to solve many serious Prisoner’s Dilemmas. For the sake of small benefits to ourselves, or our families, each of us may deny others much greater total benefits, or impose on others much greater total harms. We may think this permissible because the effects on the others will either be trivial or imperceptible. If this is what we think, what we do will often be much worse for all of us.

If we cared sufficiently about effects on others, and changed our moral view, we would solve such problems. It is not enough to ask, ‘Will my act harm other people?’ Even if the answer is No, my act may still be wrong, because of its effects. The effects that it will have when it is considered on its own may not be its only relevant effects. I should ask, ‘Will my act be one of a set of acts that will together harm other people?’ The answer may be Yes. And the harm to others may be great. If this is so, I may be acting very wrongly…. We must accept this view if our concern for others is to yield solutions to most of the many Prisoner’s Dilemmas that we face: most of the many cases where, if each of us rather than none of us does what will be better for himself — or for his family, or those he loves — this will be worse, and often much worse, for everyone.

Mozambique, Michigan, and the SEC Complaint Against Rio Tinto

Chinde_Rusting_boats

Rusting boats at the port of Chinde, where Rio Tinto proposed to barge Riversdale coal via the Zambezi River.

Yesterday, the Securities and Exchange Commission brought a complaint in New York City against Rio Tinto, charging Tom Albanese, the former CEO of Rio Tinto, and Guy Elliott, his Chief Financial Officer, with fraud. According to the complaint, Albanese and Elliott actively misled the Rio Tinto board, audit committee, auditors, and the investing public about their acquisition of the Riversdale coal business in Mozambique in 2011.

The fraud that Albanese and Elliott are accused of perpetrating looks awfully familiar to those who have followed the development of Eagle Mine and the controversy over County Road 595. Having noticed the parallel between Mozambique and Michigan back in 2013, when Tom Albanese was forced to step down, I now have to wonder whether prosecutors will take the company’s representations around the Eagle Mine into account when building their case.

In Mozambique, they told investors, coal would be transported by barge to the Indian Ocean port of Chinde. Although their technical advisors “highlighted the ‘showstopping’ risks” associated with the barging proposals before the acquisition, Albanese and Elliott blundered recklessly ahead. Then eight months later, the Mozambique government denied Rio Tinto a permit to transport the coal by barge down the Zambezi River. Suddenly, the coal business they had acquired for $3.7 billion appeared to be worth a negative $680 million. According to the SEC’s complaint, Albanese and Elliott “concealed and glossed over” the fact that they had no viable haul route for the 30 million tons per year they projected in their business plans, and misled investors as they raised $5.5 billion in US debt offerings.

In that very same period, Rio Tinto was also promoting Eagle Mine to investors and promising economic renewal in the Upper Peninsula, though they had not yet secured a transportation route — a haul route — for Eagle’s sulfide ore. In Michigan, it appears, the company took the same cavalier attitude toward planning and risk that the SEC complaint says got them into trouble in Mozambique.

Way back in 2005, John Cherry, who was then a Kennecott Minerals project manager and is now President and CEO of the Polymet project in Minnesota, characterized Eagle as a “direct ship” operation, “meaning that the rock would not be processed on site, thereby avoiding the storage of highly toxic debris left over, called tailings.” Presumably this is what Michigan DEQ’s Robert McCann had in mind in 2007, when he told The Blade that Kennecott’s permit “would require them to keep the ores underground, put them in covered rail cars, and ship them to Ontario for processing”; the Marquette Monthly told roughly the same story that year, only now there were trucks in the picture: “ore would be transported by truck and rail to a processing site in Ontario.” This seems to have been nothing more than a cover story.

Everything changed in 2008, when Rio Tinto bought the Humboldt Mill. Those permit requirements the DEQ’s McCann touted back in 2005? They were quickly abandoned. Covered rail cars come into the picture only after the ore is crushed, ground into a slurry, floated and rendered into concentrate at Humboldt Mill. A glossy 2010 company publication promoting Eagle Mine includes not a single word about how Rio Tinto and Kennecott plan to travel the 30 kilometers from mine to mill: “Happily, processing of the nickel and copper can take place in Humboldt, around 30 kilometres [sic] away, at a previously abandoned iron ore plant.” By 2011, the company had “considered more than a half dozen transportation routes” from mine to mill, according to a Marquette Mining Journal article by John Pepin published in February of that year, but they still had no viable haul route.

A good prosecutor with a rigorous and thorough discovery process would probably be able to determine whether the evasions and misrepresentations perpetuated on the public over the Eagle Mine haul route also amounted to fraud, or were part of a larger pattern of deliberately misleading statements. It’s clear Rio Tinto never came clean — and perhaps never really had a firm plan — on mine to mill transport at Eagle before it sold the works to Lundin Mining in June of 2013 and decamped. As long as regulators in Michigan continued to be more accommodating than those in Mozambique, the company seems to have been content to let the people of Marquette County fight out the haul route issue among themselves.

A Note on Stone’s “Should Trees Have Standing?”

A report in the New York Times the other day about the Federal District Court case naming the Colorado River as plaintiff led me to Christopher D. Stone’s 1972 Southern California Law Review article, “Should Trees Have Standing?” Justice Douglas drew on Stone’s arguments to formulate his dissent in Sierra Club v. Morton, and since that time the essay has been widely influential, a classic that helped define a field.

For Stone, a river or a lake, a mountain or a forest, a species or the biosphere can have roughly the same status as other “legal incompetents.” A human guardian or, as we might say nowadays, a protector brings a complaint for a natural entity that has suffered some injury. The case is brought “at the behest of” the river or mountain, without having first to prove injury to the guardian or some third party (e.g., a fishing guide whose business has suffered as the result of stream pollution); and the natural entity itself would be the beneficiary of an award or remedy ordered by the court. So, for instance, a judgment against those who have polluted a stream might direct them to undo the damage done to its waters, mitigate erosion of its banks and depletion of its plant life, restock its fish, and so on. The stream would have a “right” to be made whole again.

Stone recognizes that his proposal “is bound to sound odd or frightening of laughable,” but that, he notes, has been true of any movement to confer rights on rightless “things”:

There will be resistance to giving the thing “rights” until it can be seen and valued for itself; yet it is hard to see it and value it for itself until we can bring ourselves to give it “rights” — which is almost inevitably going to sound inconceivable to a large group of people.

Stone’s thinking can seem way ahead of its time — and ours (even if the writing here is sometimes redolent of Southern California in the early 1970s). This is especially true toward the end of the piece, where Stone moves from making strictly jural arguments for the standing of rivers, trees, and other natural entities to broader observations about the “shift from the view that nature exists for men”:

…the time is already upon us when we may have to consider subordinating some human claims to those of the environment per se. Consider, for example, the disputes over protecting wilderness areas from development that would make them accessible to greater numbers of people. I myself feel disingenuous rationalizing the environmental protectionist’s position in terms of a utilitarian calculus, even one that takes future generations into account, and plays fast and loose with its definition of “good.” Those who favor development have the stronger argument — they at least hold the protectionist to a standstill — from the point of advancing the greatest good of the greatest number of people. And the same is true regarding arguments to preserve useless species of animals, as in [the case of sea urchins endangered by a nuclear power plant.] One can say that we never know what is going to prove useful at some future time. In order to protect ourselves, therefore, we ought to be conservative now in our treatment of nature. I agree. But when conservationists argue this way to the exclusion of other arguments, or find themselves speaking in terms of “recreational interests” so continuously as to play up to, and reinforce, homocentrist perspectives, there is something sad about the spectacle. One feels that the arguments lack even their proponent’s convictions. I expect they want to say something less egotistic and more emphatic but the prevailing and sanctioned modes of explanation in our society are not quite ready for it. In this vein, there must have been abolitonists who put their case in terms of getting more work out of the Blacks. Holdsworth says of the early English Jew that while he was “regarded as a species of res nullius … [H]e was valuable for his acquisitive capacity; and for that reason the crown took him under its protection.” (Even today, businessmen are put in the position of insisting that their decent but probably profitless acts will “help our company’s reputation and be good for profits.”)

For my part, I would prefer a frank avowal that even making adjustments for esthetic improvements, what I am proposing is going to cost “us,” i.e., reduce our standard of living as measured in terms of our present values.

We may still not be “ready for it,” as Stone puts it; and, he goes on to say, there might be a more “fundamental problem” with asking human beings to put their own immediate self-interest aside and act on ethical principle, or to limit our rights in order to respect the rights of others:

Insofar as the proposal is not just an elaborate legal fiction, but really comes down in the last analysis to a compromise of our interests for theirs, why should we adopt it? “What is in it for ‘us’?”

This is a question I am prepared to answer, but only after permitting myself some observations about how odd the question is. It asks for me to justify my position in the very anthropocentric hedonist terms that I am proposing we modify. One is inclined to respond by a counter: “couldn’t you (as a white) raise the same questions about compromising your preferred rights status with Blacks?”; or “couldn’t you (as a man) raise the same question about compromising your preferred rights status with women?” Such counters, unfortunately, seem no more responsive than the question itself. (They have a nagging ring of “yours too” about them.) What the exchange actually points up is a fundamental problem regarding the nature of philosophical argument. Recall that Socrates, whom we remember as an opponent of hedonistic thought, confutes Thrasymachus by arguing that immorality makes one miserably unhappy! Kant, whose moral philosophy was based upon the categorical imperative (“Woe to him who creeps through the serpent windings of Utilitarianism”) finds himself justifying, e.g., promise keeping and truth telling, on the most prudential-one might almost say, commercial-grounds. This “philosophic irony” (as Professor [S. Morris] Engel calls it) may owe to there being something unique about ethical argument. “Ethics cannot be put into words”, Wittgenstein puts it; such matters “make themselves manifest.” On the other hand, perhaps the truth is that in any argument which aims at persuading a human being to action (on ethical or any other bases), “logic” is only an instrument for illuminating positions, at best, and in the last analysis it is psycho-logical [sic] appeals to the listener’s self-interest that hold sway, however ”principled” the rhetoric may be.

That logic may have its limits and ethical argument its attendant ironies should not deter us. “The strongest case can be made from the perspective of human advantage,” Stone writes; and after reviewing that case, he goes on to suggest that protecting the environment will actually raise our standard of living, if not in terms of our present values, then (this point deserves emphasis) in terms of new and more durable values.

Stone is even prepared to argue that “a radical new conception of man’s relationship to the rest of nature would not only be a step towards solving the material planetary problems” (and the problems Stone identifies here, in 1972, are still very much with us and more urgent than ever before: melting polar ice caps, dying oceans, serious threats to water). “There are strong reasons for such a changed consciousness [Stone admits that he is uncomfortable with the term] from the point of making us far better humans.” Recognizing the rights of those whose standing once seemed “unthinkable,” to borrow Stone’s phrase, surely has.