14 May 23
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Supreme Court Justices, alone in our system, are not truly regulated by anyone other than themselves.
The argument that Justices aren’t bound by the Code of Conduct derives from the idea that the lower federal courts were created by Congress, while the Supreme Court was mandated by the Constitution. In 2011, when ethical questions were already swirling around Thomas’s friendship with Crow—and the Justice’s failure to disclose income that his wife, Virginia, had been paid by the Heritage Foundation, a conservative think tank, and by Hillsdale College, a Christian institution—Chief Justice John Roberts pointedly claimed that when Congress set up the Judicial Conference, a century ago, it was for “the courts it had created,” and so it “does not supervise the Supreme Court.”
Congress, however, has enacted ethics laws for federal officials, including the Justices. Among other things, they require the financial disclosure of gifts; prohibit the receipt of “anything of value” from someone who has business before the Court; and call for Justices to recuse themselves when their “impartiality might reasonably be questioned.” Roberts acknowledged the laws in his statement, but said that “the Court has never addressed whether Congress may impose those requirements on the Supreme Court.” (He claimed that “the Justices nevertheless comply,” though compliance has been far from perfect.) If the Justices were to address the question, it seems possible that they’d find that applying those laws to Justices violates the separation of powers. The upshot of all this reveals the true scandal: Supreme Court Justices, alone in our system, are not truly regulated by anyone other than themselves.
Roberts has held to his line since the Thomas revelations. Last month, he declined, in writing, an invitation to testify at a Senate Judiciary Committee hearing on “Supreme Court Ethics Reform,” citing “the importance of preserving judicial independence.” He attached a statement, signed by all nine Justices, reciting the ethical principles that they “voluntarily” follow—a rare show of unanimity on this Court.
Federal judgeships on the Supreme Court and on the lower courts that Congress created under Article III of the Constitution include life tenure, and lawyers choose that career path knowing that their earnings, though significantly higher than most Americans’, will be limited compared with those offered by more lucrative avenues open to them. In 2007, Roberts said that Congress’s failure to sufficiently raise judicial salaries was “a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary.” This year, the Justices’ salaries are less than three hundred thousand dollars, and judges generally cannot be compensated for side activities other than teaching or writing books. But many who pursue a judicial career may have inherited wealth, or amassed it, or married into it, and so lead lives not drastically less comfortable than their peers in private practice.
Thomas was born into poverty, and has spent nearly all his career in government jobs. In 2001, the earliest year for which records are available, a majority of the Justices reported assets in the millions to the tens of millions of dollars; he reported assets of hundreds of thousands. According to Bloomberg, more recent financial disclosures have indicated that at least six Justices are multimillionaires, with Roberts the wealthiest. Thomas appears to remain one of the least wealthy, though new reporting has revealed that he failed to disclose even more of his wife’s earnings, including, in 2012, payments for “consulting” arranged by their friend Leonard Leo—an influential leader of campaigns to install conservative judges—from an organization that filed a Supreme Court amicus brief in a landmark voting-rights case later that year.
Other Justices, of course, have enjoyed perks, which they have reported. In 2018, Ruth Bader Ginsburg, then one of the wealthiest Justices, disclosed that the billionaire Morris Kahn had funded a stay in Jordan and in Israel, where she’d gone to receive a lifetime-achievement award. Between 2004 and 2020, Stephen Breyer, another wealthy Justice, disclosed that he took several trips that were paid for by the Pritzker family (for some of these, he was serving as a juror for the Pritzker Architecture Prize), which has contributed more than twenty million dollars to Democratic groups.
The patronage cast of the benefits that Crow provided Thomas stands out. The rules allow expensive gifts, if disclosed. Still, disclosure itself doesn’t alleviate the public unease at a Justice’s receiving such benefits. This is so even if they appear unlikely to influence how a Justice votes. Indeed, it might have been more troubling to see expensive gifts given to Anthony Kennedy, whose vote was often in play in high-profile and politically charged cases. For Thomas, whose positions have been consistently the most conservative on the Court for three decades, the gifts, and the payments to his wife, could be seen as something akin to gratuities for how he would have performed the job anyway.
The only Supreme Court Justice ever to resign in an ethics scandal was Abe Fortas, in 1969. He had accepted today’s equivalent of a hundred and sixty-five thousand dollars as a retainer fee from a financier friend who was eventually convicted of selling unregistered stock; Fortas returned the fee and denied any wrongdoing. Our standards for public officials have declined, as demonstrated by Donald Trump’s continuing popularity. But the current moment is an opportunity to move beyond being scandalized by one Justice. If rules for Justices are understood as not binding, it compromises the idea that no officials are above the law. The Court should not be the sole lawmaker, judge, and enforcer regarding its members’ conduct, in ethics or in any other matter.
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A prisoner. (photo: Peter Macdiarmid/Guardian UK)
The prosecution's case seemed clear-cut: On July 7, 1998, Miller grabbed a .45-caliber pistol and fatally shot her husband, a local sheriff's deputy named Denver Miller, as he slept in bed at their home in Franklinton, La. Then she lied to police, blaming burglars, all because she wanted to have an affair with another man.
Still, there was uncertainty in the jury box. Yes, she blamed burglars before ultimately confessing to authorities. But Miller says it was because she was ashamed to admit that her husband was regularly violent with her. They were arguing when it happened, and Miller says he pointed a gun and fired first. Then she shot him in self-defense, she testified at trial.
"I can't begin to tell you how hard it is when you love someone — even if people don't understand why you love them — to know that you're responsible for their death. People don't understand that," Miller said in a recent interview, a quiver in her voice. "And there are so many women out there that nobody believes them, and I just ask people to look deep down inside, because nobody really knows what they would do if they were put in certain situations."
Ultimately, the jury split: 10 to convict, two not guilty. In most states, that would have been a mistrial. But in 1999, the year Miller was convicted, Louisiana was one of two states where a person could still be convicted by a non-unanimous jury; Oregon was the other. At 31 years old, the mother of four was sentenced to life in prison without parole.
The U.S. Supreme Court outlawed split-jury verdicts for people accused of serious crimes in the landmark 2020 ruling Ramos v. Louisiana, righting a historical wrong propelled more than a century ago by white supremacy and xenophobic fervor. But the decision only applied to open cases and convictions that were under appeal at the time of the ruling. The justices left it to Oregon and Louisiana to decide whether to apply the decision retroactively and give inmates like Miller a second chance.
Today, the two states are on sharply different paths. In Oregon, the state's Supreme Court recently said these cases must be given a new look, while in Louisiana, only a handful of prosecutors have agreed to revisit past convictions decided by split juries — or what critics call "Jim Crow juries."
It's a divide that has left hundreds of prisoners at the mercy of a two-tier judicial system that has disproportionately affected minorities. Each was convicted under an unconstitutional law that defense attorneys — and even some prosecutors — acknowledge may have sent innocent people to prison. But only some inmates will see their cases reconsidered.
This muddled legal landscape is fueling a deep sense of anxiety on each side of the debate, even as the biggest legal challenges surrounding non-unanimous convictions appear settled. Those who oppose revisiting old cases worry about retraumatizing victims and the added strain on prosecutors at a moment when violent crime rates are on the rise. Reform advocates say failure to act on behalf of people who were unconstitutionally convicted will only further erode faith in the justice system.
"It doesn't go away until you address it," says Hardell Ward, an attorney with the Promise of Justice Initiative, a Louisiana-based nonprofit that has led the push to revisit non-unanimous jury convictions. "This is not something that can be swept under the rug; it's not something you can wait on."
The laws were shaped by hate
The laws that enshrined the split-jury system into the legal fabric of Louisiana and Oregon didn't happen by accident.
After the Supreme Court ruled that Blacks could not be excluded from juries, Louisiana held a constitutional convention in 1898 to, in the words of one attendee, "establish the supremacy of the white race in this State to the extent to which it could be legally and constitutionally done."
To do so, framers of the new constitution drafted a document that required only 9 of 12 jurors to convict. If one, two or three Black residents made it onto a jury, their votes could effectively be canceled out by white jurors. (In 1973, the constitution was amended to require agreement from 10 jurors.)
In Oregon, the split-jury system sprang from a 1933 homicide in which the assailant, Jacob Silverman, was Jewish. The victim was Protestant. At trial, 11 of 12 jurors wanted to convict Silverman of murder, but a lone holdout refused to join the majority. After hours of deliberation, the jury compromised and convicted Silverman on the lesser charge of manslaughter.
The lesser verdict fueled outrage across the state, as local newspapers channeled racist and xenophobic attitudes to blame the outcome on immigrant jurors. One paper, The Morning Oregonian, opined that "Americans have learned, with some pain, that many peoples in the world are unfit for democratic institutions, lacking the traditions of the English-speaking peoples." Other pieces bemoaned "mixed-blood" jurors.
The next year, voters amended the state constitution — only 10 of 12 jurors would be needed to convict.
In each state, the implications for African Americans in particular have been profound. In 2018, an analysis by The Advocate newspaper in Louisiana found that 40% of trial convictions in the state came over the objection of at least one holdout. When the defendant was Black, that number rose to 43%. It fell to 33% for defendants who were white.
The analysis further revealed that Black defendants were regularly judged by juries that are whiter than the communities they live in. That's significant because even though jurors, regardless of their race, vote guilty together in a wide majority of convictions, Black jurors were often more likely to cast a dissenting vote than whites, the analysis found.
In Oregon, research by Aliza Kaplan, a defense attorney, found that since the U.S. Supreme Court ruled non-unanimous verdicts unconstitutional, close to 20% of petitions for appeal have come from Black inmates, even though African Americans make up less than 3% of the state's population.
"When you look at a rule like non-unanimous juries in both states, what you see is just a constant failing and an intentional assault on people of color," says Kaplan, the director of the Criminal Justice Reform Clinic at Lewis & Clark Law School. "And both of our systems, in very similar and different ways over more than 100 years, have played that out in different ways."
In Louisiana, critics see "discretionary justice"
In the face of that history, Louisiana voters decided to take action. Five years ago, they amended the state constitution once again to change the laws around split-jury verdicts.
For criminal justice advocates, it was an important victory, as it meant unanimity would be required for jury verdicts. But there was a catch: The referendum did not apply to cases from before 2019 — an issue that only got more awkward when the Supreme Court ruled split-jury verdicts unconstitutional and said states would have to settle for themselves whether to apply the ruling retroactively.
By last October, Louisiana had its answer: The state's top court struck down retroactivity.
The ruling has meant decisions about individual cases from before 2019 now fall to local prosecutors like Jason Williams, the district attorney for Orleans Parish.
Williams, who was elected in 2020, has vowed to examine every non-unanimous verdict under his jurisdiction — roughly 350 cases, more than any other parish in the state.
"This city, New Orleans, Orleans Parish, as we call it, has really been ground zero for mass incarceration and the mass production of defective convictions which have largely affected mostly Black men, certainly mostly Black people," says Williams.
The work, Williams says, is often misunderstood. "We're not suggesting that [jurors] were racist," he says. "But the fact that the institution at the time discounted two of those voices on that jury meant that the process itself was not a fair process and was a Jim Crow era process."
So far, he says his office has reviewed about half the backlog. Most cases involved someone who did, in fact, commit a crime, he acknowledges, and the majority of those inmates have been resentenced and are still in prison.
However, Williams' office discovered that many sentences did not fit the facts of the case. About 25% of the time, prosecutors have chosen to reduce an overly harsh sentence, resulting in less prison time. In another 65% of cases reviewed, prosecutors agreed to vacate part of a conviction in exchange for a guilty plea to the next lesser charge. In roughly 10% of cases, the office says it either sent it back for a retrial or vacated the sentence and dismissed the case because it became clear the person did not commit the crime.
"You have to go back and reckon with the sins of the past if you want the people of your state and of your city to believe and trust in the system," Williams says.
Unlike Williams, though, most Louisiana prosecutors have resisted calls to revisit cases and pushed back on a proposed legislative solution.
One proposal by state Rep. Randal Gaines would have created a state board to help adjudicate cases for anyone still in prison due to a split-jury verdict, but the measure died last spring after a breakdown in negotiations.
Some of the biggest pushback came from the Louisiana District Attorneys Association, which has fought calls to apply the Ramos ruling retroactively, partly because of the strain it would put on resources.
The Louisiana District Attorneys Association did not return multiple requests for comment, but the group's executive director, Loren Lampert, has previously stressed the importance of reassuring "victims and survivors of the integrity and finality of the crimes against the community."
For now, it's far from clear how much appetite there will be for change. Gaines calls the split-jury system "mired in racism," and he has reintroduced legislation to fix a process he sees as unsustainable. Decisions about individual cases are being left to the discretion of individual prosecutors, he says, "and discretionary justice is not always justice."
Second chances in Oregon
Back in Oregon, Brandon Gillespie is home for the first time in more than 15 years.
In 2007, Gillespie was convicted for trying to rob the Purple Parrot convenience store. It all happened at a time when his life was in shambles. At 21, he was unemployed, living in his father's shed and struggling with alcohol and pain pills.
Over three days at trial, prosecutors presented their case: a bungled robbery; a foot chase with a customer who bolted from the store; a series of errant gunshots. On the most serious charge, attempted aggravated murder, the jury deadlocked 10-2. He was sentenced to 27 years.
"I had no idea that it could be non-unanimous," Gillespie says. "I mean, just from watching movies and shows and all, you know, CSI and whatever, Law and Order, I just figured that everybody had to come to an agreement to convict me."
His release in March, a little more than 11 years ahead of schedule, followed a ruling by the Oregon Supreme Court in December that granted anyone convicted by a split-jury verdict the right to have their case reexamined.
For hundreds of Oregon inmates, the decision means prosecutors must now decide whether to pursue a new trial, cut a plea deal or dismiss charges altogether. In Gillespie's case, he accepted a plea in which prosecutors dropped all but two of the charges, including the attempted aggravated murder charge. Rather than remain in prison until 2034, he was sent home on three years' parole.
Now that he's out, he's determined to make good on his second chance. He's hoping to make a future for himself as an investor, after years of study in prison. But he's also trying to stay mindful of all the people who helped win his release and says he is determined to pay it forward.
"Maybe I could change somebody's life out there," Gillespie says. "[If] I could stop one act of somebody maybe thinking about going and doing a shooting, I could tell them, 'Look, I've been in that circumstance,' and I maybe talk somebody down off of something like that. It would make it all the worthwhile for me."
Worries still abound
While reform advocates have cheered the latest developments in Oregon, many crime victims are feeling dread. In testimony before the state legislature last year, witnesses told lawmakers in sometimes painful detail that allowing prosecutors to revisit convictions would needlessly retraumatize them.
In one exchange, a sexual assault survivor spoke about the 11-1 verdict that sent the man who attacked her and her sisters to prison for 18 years.
"No amount of time served will ever account for the trauma he has inflicted on us," she said.
One of the biggest concerns among victims rights advocates is a lack of funding to meet basic obligations brought on by the Oregon Supreme Court's ruling. For example, finding and contacting victims and their families to notify them once a decision has been made to retry a case, strike a plea deal or vacate a sentence.
"The system is not particularly victim friendly," says Rosemary Brewer, executive director of the Oregon Crime Victims Law Center. "What we're looking at is a system that is going to take a traumatized population and tell them that they have to go through it all over again. And frankly, we don't really have the resources to deal with that level of traumatization."
A new bill now before the legislature would provide the Oregon Justice Department $6 million to help work through the backlog of old cases, including money for victims services.
Aid for victims is not the only concern, though.
Reform advocates like Kaplan from Lewis & Clark say the process has been too slow, "especially for people who are in prison."
Part of the challenge, she says, is that some prosecutors are taking too long to decide whether to retry old cases. At the same time, there are inmates who may not be aware that they were even convicted by a non-unanimous jury and need legal aid to help their cases move forward. But the state is facing a shortage of defense attorneys, which is only adding to the frustration.
The office of Attorney General Ellen Rosenblum declined multiple requests for comment, but in a statement following the Oregon Supreme Court's decision Rosenblum said she was "committed to eradicating inequities and ensuring fairness and impartiality in the delivery of justice in our state."
There's also the issue of what to do about people like Tacuma Jackson — people who have served their time but still have a non-unanimous conviction on their record.
In 2021, Jackson was granted early release by then-Gov. Kate Brown, but his conviction still follows him. He's had to heal relationships with his children strained by his incarceration, and he initially struggled to find work, since background checks would alert potential employers to his past. For a while, he slept in his car.
"I was making so many sacrifices thinking to myself, 'Man, how am I going to survive out in the streets? How am I going to live?" Jackson says.
Two years since his release, he's managed to turn things around and is now deeply involved in his Portland community. He does restorative justice work and serves on the Black Advisory Business Council for his local Chamber of Commerce. He mentors others reentering society after prison, and he recently purchased a scooter rental franchise called Hopp.
But even though his sentence was vacated, he must still report to a parole officer and says he has to check in with him anytime he wants to leave the state.
"I'm still being bound with this ball and chain and these tethers and I'm trying to figure out what is going on," says Jackson. "It's like, Oh you won, but you haven't won yet."
"What makes us different from people in other states?"
From her prison cell in Louisiana, Miller watched as the Supreme Court ruled split-jury verdicts unconstitutional, only to see Louisiana's top court say the decision would not apply retroactively to cases like hers.
"I still have a hard time understanding how if it's unconstitutional now for a jury to convict somebody ... but now you can't do that, what makes me different than other people?" she says. "What makes us different from people in other states?"
If her case were to be reconsidered, she's optimistic the outcome might be different. In an affidavit submitted five years after Miller's conviction, the jury foreman said that had he and other jurors known about several key pieces of information that failed to come up at trial, they "would not have found Jill Miller guilty of the charge of second degree murder."
The first was the destruction of the couple's mattress, which according to affidavits from two people involved in its removal, contained two bullet holes on the side that was not stained with Denver Miller's blood. At trial, Miller testified that her husband shot his gun twice into their mattress near where she lay before she grabbed another gun and fired back.
The foreman said jurors also did not know about a police report that was changed to remove mention that Denver Miller "seemed to be intoxicated" when officers went to the family home to investigate a burglary about six hours before the shooting. Nor did they know about a psychologist's report concluding that Miller exhibited classic signs of battered woman syndrome.
But there are no guarantees. So for now, Miller keeps on with her daily routine. She wakes at 5:30 each morning, listens to a daily audio reading of the Bible and then heads to the prison library, where she works as a legal adviser for other inmates.
There are times, Miller says, when she gets tired of fighting. But she finds strength in a favorite Bible passage — "I can do all things through Christ, who strengthens me" — the women she works with and the hope she can one day reunite with her children.
"All I really wanted to do was be a mom, and I haven't been able to do that," she says.
Almost 25 years into her sentence, Miller is a grandmother now. She gets to speak with some of her grandchildren by phone from time to time, and when she lets herself dream about a life outside of prison, that's where her mind goes.
"I want to be able to have a small place and an open door for my grandchildren," she says. "There's so many things that I've never done — and I might be a little too old to do now — but I can see it through my grandchildren."
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President Trump, left, and Russian President Vladimir Putin. (photo: Pablo Martinez Monsivais/AP)
A novel approach to holding Russia accountable for atrocities in Ukraine could ensure that lies and mass murder do not go unpunished
Historically, the powerful would try to censor and suppress the facts. The Nazis tried to keep the truth about their atrocities hidden. The Soviet leadership would howl with embarrassment when dissidents passed information about conditions in the gulag to the outside world. Richard Nixon was brought down after the facts of his bugging his political opponents, and his ensuing cover-up, were brought to light.
But what happens when the powerful stop being scared of the truth, indeed flaunt their disregard for it – as we see in the behaviour of Russia’s Vladimir Putin and America’s Donald Trump? Why has shame disappeared and why does impunity reign? Are we now helpless to hold the powerful to account?
In the US last week, Trump was again lying “bigly” and brazenly. At a televised CNN town hall event, the journalist Katie Collins tried to rein him in with ropes of evidence and rational argument but he just revelled in rejecting any truth or logic. According to Trump, the presidential election that he lost in 2020 was “rigged”, despite there being no proof for any such claims; the reporter E Jean Carroll, whom a civil jury found Trump guilty of defaming and sexually abusing, was just a “whack job”; when Collins pulled him up over the classified documents that Trump had removed from the White House, he dismissed her as a “nasty person”. The audience in New Hampshire, full of Trump fans, whooped and cheered. Instead of being “held to account” with the truth, Trump had a field day showing how he didn’t give a hoot about it. Why do his supporters enjoy this so much?
There is, first of all, a powerful relief that comes from throwing off the weight of facts, the constraints of glum reality.
Facts are generally unpleasant things, but they are useful for politicians who are trying to establish some sort of proof that their big policy is working.
But Trump had no stable policies: he can be righter than right, and then pivot left when it suits him. Ever since Florida governor Ron DeSantis, his rival to head the Republican party, has tried to show he is more conservative than Trump – and most Americans – on issues such as abortion, Trump has made himself look more liberal.
Nor has Trump any ideals that you could shame him into having betrayed. Instead, he appeals to a sense of pure resentment, where throwing off all forms of authority and responsibility – the authority of logic, ideals, rational policies, the “elites” – is what makes him attractive to people.
In a democracy such as the US, however, reality can take revenge. Trump’s rejection of the facts about Covid cost him the 2020 election. Every month, more court cases pile up against him: most seriously, for (allegedly) trying to force officials in Georgia to count more votes in his favour in 2020. Fox News, the Trump-supporting television network that has knowingly peddled conspiracy theories supporting his claims of a “rigged” election, has just paid out $787m (£633m) to the company it accused of falsifying votes.
Putin has fewer restraints. Unlike previous warmongering dictators, he doesn’t even try to hide his atrocities and intent to commit genocide in Ukraine. Putin and his propagandists speak openly about their desire to destroy Ukrainian identity and sovereignty, of abducting Ukrainian children and forcibly re-educating them. The Russian army shells maternity hospitals, obliterates civilian infrastructure and entire cities. Putin wants to show he can mass murder openly, and there is nothing anyone can do about it. He wants to open a chasm between truth and justice so the connection between the two is utterly ruptured.
But the Russian invasion of Ukraine could also be a turning point: Putin’s plague of impunity is starting to be confronted by innovative initiatives great and small.
Since the war started, I’ve been working with journalists and lawyers at the Reckoning Project to help “quicken” justice around atrocities. Lawyers and journalists don’t often work together – but in this case we are both on the same side. Teams of Ukrainian reporters trained in international human rights law are gathering evidence of atrocities on the ground through testimonies from victims. We then create media content based on this evidence for “the court of public opinion”, while our legal team develops cases. Usually, war crimes cases come long after a conflict ends; in this war, however, we need to construct them as it rages.
But when we think about justice we need to go beyond old-fashioned cases of war crimes, where a general or politician is brought to trial. While that is obviously important, waiting for it can take a long time. Moreover, some of the Putin elite are only too proud to be accused of atrocities: it shows their loyalty to the leader. We need to broaden our concept of how justice can be achieved.
One of the more innovative ideas floated recently comes from Ilona Khmeleva, of the Economic Security Council of Ukraine, and the British law firm McCue Jury. They propose an economic justice tribunal. This will adjudicate on how to seize the international assets of the Russian state and its oligarchs, and distribute them to specific victims of Russian aggression.
I would add (billion-dollar) fines against western companies and enablers that continue to support Putin’s war machine despite sanctions. Such a tribunal would both give tangible compensation to victims and undermine the corrupt, global system that Putin has created and whose existence he uses to prove how entrenched his power is. Putin’s domestic propaganda is always trumpeting how many supporters it has across the world: from Viktor Orbán in Hungary to Trump in the US. President Joe Biden had tried to isolate us, the argument goes, but he’s too weak and everyone needs our oil, gas and metals.
Polls in Russia show that Russians tend to believe anyone who is in authority: truth is not a value in itself, but a subset of power. As one recent poll by the Open Minds Institute concludes, Russians tend towards “belief that the government is right, solely because it is the government and it has power”. If Putin can show he is powerful, through impunity globally and victory on the battlefield, then he is “believed”. Defeat him on the battlefield, undermine his system in the courts, and his power to define reality will slip. It’s not just truth that leads to justice, it’s justice that leads to truth.
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Between 6,000 and 12,000 children were exposed to drinking water with high levels of lead in Flint, Michigan. (photo: John Walker/The Fresno Bee)
The Flint water crisis began nine years ago. Despite initially drawing huge headlines and promises to fix the city’s poisoned drinking supply, no one responsible for the crisis has gone to jail, and residents say water still isn’t fully drinkable.
And nearly a decade later, no one who knowingly attacked your mind, body, and spirit is in prison.
Not the low-level office lackey who wasn’t really involved but could have sounded the alarm; not the middle-manager government bureaucrat who looked the other way knowing people would die; not even the high-level sacrificial lamb who didn’t mastermind the scheme, but was chosen by the big poo-bahs to be violently tossed under the bus. And definitely not the key players who actively executed, and then covered up, the crime.
Adding insult to poisonous injury, despite assurances from the government who poisoned you, and a compliant media that has all but abandoned you in favor of regurgitating what the government criminals tell them, you’re still actively being attacked by the water your state and city are pumping through your taps and showerheads.
Flint, Michigan residents need not imagine this dystopian hellscape. They’ve been living it for nine years today.
Or, to be exact, 3,287 days.
Despite the Flint water crisis still being an active, urgent crisis for the people in Flint, for the majority of Americans, the crisis ceased registering as one five years ago. Back in 2018, then governor Rick Snyder — who had thus far avoided accountability by feigning ignorance and the nobody-told-me mantra — declared Flint’s water “restored” and back to “safe” pre-2014 crisis levels.
As Status Coup broke that same year, this was a deadly lie. Snyder’s government, specifically his environmental department, had manipulated Flint’s water-testing data, literally flushing away the evidence of high water lead levels in order to artificially produce lower data and declare the city’s water safe. When approached by Status Coup, the Environmental Protection Agency (EPA) actually acknowledged that the governor’s environmental department had violated federal regulations by sending officials into residents’ homes and running their water for several minutes before collecting water samples (and telling residents to do so themselves when they did the testing on their own). This was a blatant violation of the lead and copper rule, the EPA’s gold standard for water testing.
“Falsifying a federal and state regulatory compliance test: that is a crime,” legendary environmental consumer advocate Erin Brockovich told Status Coup about the manipulated testing in 2018. In light of the falsified tests, which Brockovich called “cheating,” she called for Snyder’s environmental department’s testing to be flushed down the toilet:
The sample set is representative of at least some not testing properly, and therefore the entire sample set should be invalidated. Without proper training and compliance, one must assume all of the samples are not valid.
So, of course the agency tasked with protecting the United States’ environment and public health acted upon this scandalous information, right?
Wrong. The EPA did worse than nothing. It echoed the criminally fraudulent testing, passed off by Governor Snyder as Flint’s “Mission Accomplished,” and lent its rubber stamp to the lie that Flint’s water was safe.
But five years after Flint’s water was declared “restored,” one only has to spend some time in the embattled, impoverished Rust Belt city — or just speak with enough residents — to know that nearly a decade later, Flint’s water is still contaminated.
“My water has a sewer smell off and on . . . and black shiny stuff coming out in the water,” Flint resident Joelena Freeman told Status Coup. “It’s gross and we have no idea what it is or what it could be doing to us. But we have no choice but to shower in it and hope for the best. I mean, dang, it’s a rotten way to live day to day and for this long.”
Melissa Mays, a Flint mother of three who became the lead plaintiff against Governor Snyder and the state of Michigan in the 2017 settlement that awarded the city $97 million toward lead service-line replacement, also made clear that the city’s water is in no way safe.
“My water smells like straight pond because it’s TTHM testing time again so no chlorine [in the water],” Mays said. Her chlorine reference is in regard to water testing underway looking at total trihalomethane (TTHM) levels in Flint’s water. TTHMs are disinfection byproducts that, at elevated levels, can cause cancer, and were found to far exceed safe health levels in Flint in 2014.
Mays, along with other activists, has been fighting for justice and clean water for eight years now. Very little has changed, but Mays told Status Coup that giving up is not an option:
If we give up, this damaged, corroded, unstable infrastructure will continue to crumble and innocent people will suffer in Flint and every city out there that can and will end up just like us if justice isn’t done. It should not take 9 years to replace the mains, service lines & interior plumbing destroyed by those in power. We cannot and will not give up.
Just as problematic as Flint’s water, Michigan’s political and so-called justice system has become just as toxic, ultimately revictimizing Flint residents all over again.
“Flint was poisoned for privatization, and profit, and the fight continues,” Mays continued. “Waking up every day knowing that we have to fight for the basic human right to safe water and we’re sick because of it is exhausting.”
For years, Flint residents had hoped that its state attorney general’s office would fight like hell and win some form of justice for them. Instead, nearly a decade later, it’s beginning to look highly unlikely that any government official or culpable player that caused their suffering will see prison time.
Prosecutors who led an initial three-year Flint water criminal investigation, launched in 2016, were building momentum. After yearlong pretrials against the head of the state health department and the state’s chief medical executive, a judge had bound both over to face jury trials for involuntary manslaughter charges.
The special prosecutor who presided over those cases and the entire criminal investigation, Todd Flood, was also building a case against Governor Snyder himself — for involuntary manslaughter. As yours truly broke in the Intercept in 2021, part of the case being built against Snyder was based on phone calls prosecutors obtained — showing a flurry of phone calls over two days in October 2014 between Snyder, his chief of staff, and the state health department director — at the same time as cases of the deadly waterborne Legionnaires’ disease were surging in Flint. The sequence and high volume of the calls led prosecutors to conclude that Snyder and his lieutenants were attempting to cover up the outbreak.
“This evidence shows the Governor, his administration, Director Lyon, and the MHA [Michigan Health and Hospital Association] knew about this outbreak of Legionnaires’ in October 2014, and were interested in keeping the information from going public,” then special prosecutor Flood wrote in a subpoena draft.
The original prosecution team was not stopping at Snyder. As I broke in the Guardian in 2022, other prosecutors and investigators were close to filing sprawling racketeering, or RICO, charges against the masterminds of a criminally fraudulent financial scheme that served as the dark underbelly sparking the water crisis. Other key defendants were beginning to cooperate with prosecutors, signaling their willingness to “flip” on top officials within the Snyder administration, which prosecutors believed would help them gather the evidence needed to charge Snyder himself.
And then Dana Nessel walked through the sttorney general’s office.
Nessel, who all but condemned the aforementioned investigation as a candidate for attorney general — attacking Flood and criticizing what she perceived as the investigation’s lack of results — entered office in 2019 and cleaned house. She fired Flood, chief investigator and former Detroit FBI chief Andy Arena, and most of the original team of prosecutors and investigators. She claimed, with little evidence, that the team had fumbled the ball, failing to secure millions of key documents while messing up procedural steps that would ultimately jeopardize convictions. Nessel appointed her solicitor general Fadwa Hammoud and Wayne County prosecutor Kym Worthy to essentially restart the entire investigation from scratch.
Both went to Flint in 2019 and spoke in front of residents, decrying what they criticized as mistakes of the original investigation team and promising them that justice was only being “delayed.”
Four years later, Nessel’s team has all but lit the investigation, and any possible justice for Flint, on fire. Rather than getting into the long, thorny weeds, here is the gist of the disastrous, restarted second investigation launched by Nessel and her handpicked prosecutors. Much of the below comes from high-level sources familiar with both the original and second investigation.
Step 1: Nessel’s prosecutors choose not to receive an in-person debrief from the chief investigator they fired.
Step 2: Nessel’s prosecutors all but ignore an in-depth transition memo provided to them outlining the widespread financial fraud scheme that caused the Flint water crisis.
Step 3: Nessel’s prosecutors meet with government officials inquiring into the financial fraud case that had already been built by the original investigation. Sources told Status Coup that Nessel’s prosecutors “clearly don’t know the basics” of the case.
Step 4: In June 2019, Nessel dismisses charges against eight key state and city officials — including the two top health officials a judge has ruled must face jury trials for voluntary manslaughter. Along with the serious involuntary manslaughter charges being tossed, financial fraud charges related to the KWA pipeline bond fraud are also dismissed. At the time, she assured Flint residents that the dismissals would not preempt her from recharging those same officials.
Step 5: Nessel’s prosecutors forego the public pretrials approach that the original Flint prosecution team used, instead opting to bring its evidence through a secretive, one-man grand jury process (i.e. a judge). The process is not often used in Michigan.
Step 6: In January 2021, Nessel’s office charges Governor Snyder with two counts of misdemeanor willful neglect of duty, charges with a maximum prison sentence of one year and fine of $1,000. Status Coup’s reporting indicates that the pre-Nessel investigation was building a much more serious case against Snyder for involuntary manslaughter (which has been confirmed by two other Michigan reporters).
Along with Snyder, Nessel’s prosecutors charge eight other state and city officials — including Snyder’s top adviser Richard Baird and former press secretary Jarrod Agen. As I broke for VICE News and Detroit Metro Times in 2020, Baird, known as Snyder’s right-hand man and “fixer,” offered sick Flint residents payoffs in exchange for their silence.
Former Flint emergency managers Darnell Earley and Gerald Ambrose, who were originally charged by special prosecutor Flood for alleged financial fraud related to the KWA bond deal, but had those charges dismissed in 2019 by Nessel, are recharged. But Nessel’s team does not bring back the financial fraud charges against them; the two are charged only with felony misconduct in office.
Step 7: Attorneys for Snyder and other defendants ask the courts to dismiss charges, pointing to the fact that Nessel’s prosecutors did not use a “taint” team — a group of independent attorneys not involved with the case to comb through the evidence and remove anything protected by attorney-client privilege — as part of their gathering of evidence. Attorneys also call for dismissal of charges based on Nessel using a one-man grand jury to file the indictments against Snyder and others, a move that defendants’ attorneys claim violated Michigan’s constitution.
Step 8: In 2022, in a seven to zero ruling, the Michigan Supreme Court rules that Nessel’s prosecutors violated the state constitution by using a one-man grand jury to bring criminal indictments against Snyder and eight other defendants. As a result, charges against Governor Snyder and seven other defendants were dismissed.
Step 9: Nessel’s prosecutors appeal — and lose. As of today, the nine-year anniversary, Nessel’s prosecution team claims that the investigation is still “ongoing” and that there is a path to getting charges refiled and defendants in front of a jury.
Unfortunately, for the poisoned residents of Flint, I wouldn’t hold my breath.
Sources indicate that the statute of limitations, which is six years for most felonies in Michigan, has already run out for most of the criminal charges against state and city officials. The only remaining charges that would still potentially be in play are involuntary manslaughter (with a ten-year statute of limitations).
The attorney general’s office did not respond to Status Coup’s request for comment on how the investigation is still ongoing if the charges against Snyder and other defendants have been thrown out by the Michigan Supreme Court and they’ve lost their appeal.
With the odds of justice for Flint residents dwindling, and residents still complaining about water they insist is contaminated, Flint has become one of the most prominent environmental calamities in American history to be quietly erased from the public and media consciousness.
But Flint is still suffering. Or, as the late Flint resident Tony Palladeno once told me, “This place ain’t safe, it’s not safe at all. We got a pistol in our mouth everyday — it’s called tap water.”
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An employee checks the chamber of an assault-style rifle at a shooting range. (photo: Jewel Samad/AFP)
Conservatives have cultivated a negative and hyper-individualistic view of human nature
As seen in many other mass killings in America, the apparent terrorist's weapon of choice was an AR-15 assault-style rifle. The AR-15 and its variants are literally weapons of war designed for maximum and efficient killing at close to mid-range distances.
How did the Republican Party, "conservatives", and other gun fetishists and ammosexuals respond to the tragedy in Allen, Texas? Their usual talking points about "gun rights" and "freedom" again show that they value guns more than human rights, safety, and human life – even if such values demand sacrificing America's children to the gun god Moloch.
On Saturday, former Fox "News" propagandist Megyn Kelly recited these fictions and fantasies on Twitter:
Serious q for gun control advocates: you've failed to effect change. Pls face it. You can't do it, thx to the 2A. We're all well aware you don't like that fact, but fact it is. What's next? Must we just stay here sad, concerned, lamenting? Could we possibly talk OTHER SOLUTIONS?
Mental health interventions (smthg real, not the BS we now do), greater willingness to lock ppl up (w/protocols in place for civil libs) who are deemed to be threats, fortification of soft targets, coordination of media response to not lionize shooters, etc.
On Tuesday, during an appearance on Fox "News", Republican Rep. Marsha Blackburn made the ridiculous suggestion that an armed posse of "grandparents" would be a viable solution to America's plague of mass shootings:
"To have this grant pool and to allow local school systems and local law enforcement to work together to bring in veterans and retired law enforcement to serve as a security officer at a school — they know how to use weapons….They know to de-escalate situations. I've talked to a lot of them. They like this idea. They are grandparents like we are — my husband and I are grandparents — and they want to be there to help protect children."
Fact 1: Criminologists and other experts have shown that the presence of armed guards do not substantially influence the decision by mass shooters about what schools to attack.
Fact 2: As seen in the horrific mass murder at a school in Uvalde, Texas, a heavily armed police force cowered, refusing to enter a school because they were in terror of one killer who was armed with an AR-15 assault-style rifle.
Instead of advocating for reasonable and effective gun control policies in response to the mass shooting in Allen, Texas, a law has been proposed to expand training for school children in first aid, triage, and other skills as though they are miniature combat medics.
At TODAY! Danielle Campoamor reports:
Since 2020, Texas law has mandated that schools offer students as young as seventh graders lessons in "battlefield trauma care," where children learn how to apply tourniquets and chest seals in class.
"The first (bill) was in light of the shooting at Santa Fe, to provide support to middle- and high-school-age kids ... and to help them feel confident that they could help their friends who might be suffering from a bleeding situation," Barry Haenisch, executive director with the Texas Association of Community Schools, an organization that represents small, mid-sized and rural public school districts in Texas, tells TODAY.com.
Now, lawmakers have introduced a state bill that would expand the classes to include kids as young as third graders.
The bill is sparking controversy as the nation prepares to mark one year since the deadly Robb Elementary school shooting in Uvalde, Texas, and after three small children were shot and killed inside a private Christian school in Nashville, Tennessee.
"I just see third graders as babies," Haenisch says. "I would need somebody (to) show me how they could be composed enough, even if they were well-trained and knew exactly what to do, to carry it (out)."
House Bill 1147, which regulates mandatory "bleeding control stations" in Texas schools, would require districts or charter schools to offer annual "instruction on the use of a bleeding control station."
The bill also outlines what instruments children as young as 8 would learn to use at the stations, including "tourniquets approved for use in battlefield trauma care by the armed forces," chest seals and bleeding-control bandages.
Parents must opt into the battlefield trauma care instruction and provide written permission for their children to attend the sessions.
After the mass shooting in Nashville where 6 people were killed, including 3 children, at a school, Republican state Rep. William Lamberth asked students who were protesting gun violence,"If there is a firearm out there that you're comfortable being shot with, please show me which one it is".
When asked by reporters about school violence and his own child's safety in the aftermath of the Nashville massacre, Republican Rep. Republican Representative Tim Burchett dismissively replied that he doesn't send his daughter to public school "Well, we homeschool her".
The New Republic adds this additional context:
Despite Burchett's cynicism, there are a number of actual government policies that would decrease gun violence, like enhanced background checks. The Tennessee representative, however, voted against a bill expanding background checks on gun sales in 2021.
On his supposed Christian values, Burchett was one of 62 Republicans who found a way to vote against a bill that aimed to support hate crime victims. He also voted against reauthorizing the Violence Against Women Act that helps prevent and respond to domestic violence, sexual assault, dating violence, and stalking. Not to be mistaken as someone who actually cares about achieving national harmony, Burchett did support efforts to overturn the 2020 election results.
Republicans in Congress are now wearing lapel pins that resemble AR-15 assault rifles. Their claim is that these lapel pins symbolize support for "gun rights". In reality, these AR-15 lapel pins are an attempt to mock victims of gun violence and those others who want effective gun control laws.
The choice to wear gun pendants is also a none too subtle threat of violence against Democrats and other Americans who refuse to submit to the Republican fascists and MAGA movement.
When Republicans, "conservatives", and other gun fetishists engage in such behavior after a mass shooting and/or in response to discussions of gun violence as a public health crisis more generally, too many Democrats, liberals, progressives, and others who want a humane society, respond by being shocked and aghast. In all, what is a broken record of disbelief and amazement that the Republicans and the "gun rights lobby" would act in such a way when faced with more dead bodies and maimed people and ruined lives.
Such reactions reflect how too many people (in the political class and news media as well as everyday Americans) who exist outside of the right-wing echo chamber and closed episteme (be it "red state America" or the "MAGAverse" or the "Trumpocene") have delusionally and naively convinced themselves that the Republican Party and "conservative" movement's callous indifference towards gun violence is at best a gaffe or mistake, and at worse a character flaw or something that can be corrected through education and correct information.
In reality, the right-wing's (literal) death embrace of guns (and resulting gun violence) represents something far worse and more dangerous for American democracy and normal society: these beliefs and policies are a type of political philosophy and theory of human nature and society where violence is incorrectly believed to be everywhere, unavoidable, and thus we should come to accept it as normal. And moreover, that violence is an unavoidable and "natural" way of resolving political disputes, conflicts, and other questions. This is the beating heart and foundation of fascism and other illiberal politics.
In total, the right views "society" as being a type of Hobbesian state of nature, something Darwinian, "ruled by survival of the fittest" where life is "nasty, brutish and short." In that world, the Republicans and other "conservatives" and members of the right wing are determined to be the winners no matter what.
Such a political vision and theory of society and human nature actually gives the Republicans and other "conservatives", neofascists and assorted malign actors a perverse incentive to create the circumstances where violence and other forms of social disorder and insecurity predominate. Why? A need for "safety and security" pulls people into the orbit of the fascist-authoritarian movement, party, and Great Leader.
As expressed by most rank-and-file members of the American right wing, such a crude belief in the primacy of violence and a negative and hyper-individualistic view of human nature and behavior is not an ideology as most political theorists and philosophers would strictly define it. But as a practical matter such beliefs and behavior, especially as understood and developed by right-wing elites, have a huge impact on not just guns, but politics and society more broadly.
As William Kleinknecht, Nancy MacLean, Wendy Brown, Sheldon Wolin, Chris Hedges, Thom Hartmann, Lisa Duggan and many others have extensively detailed such anti-human beliefs (as part of a larger culture of cruelty) take the form of ending democracy, destroying the social safety net, and fully deregulating the market so that big business and the richest Americans can act with impunity as they hoard even more wealth and income, prey upon the commons, gut democracy, destroy the environment, and shorten the lives of the public – especially those human beings they view as "disposable" or "surplus."
A belief in a "winner takes all" society also means that attempts to lessen social inequality and injustice as part of an attempt to expand democracy are viewed as anathema, the exact opposite of the type of the fully hierarchal society the right-wing and "conservatives" are trying to create.
As part of that revolutionary project, America's public education system and schools have become a literal battlefield during the last few decades with the rise of the neoliberal gangster capitalist regime in the Reagan era because they are, ideally, democratic spaces where good citizens are created and there is safety from violence and other antisocial behavior and the larger culture of cruelty.
Republicans reject gun control because that would deprive them of the ability to use violence, fear and intimidation to achieve their political and wider societal goals as they dominate and oppress their "enemies," meaning Democrats, liberals, progressives, Black and brown people, the LGBTQ community, feminists, atheists, "non-Christians", Muslims, unions, and any other targeted groups and individuals deemed to be the Other and "the enemy".
The Jan. 6 coup attempt and the rise in right-wing terrorism, hate crimes, other political violence, and mass shootings (as seen in Allen, Texas last week) during the Age of Trump and beyond are not coincidental to the American neofascist project but instead are central to it.
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Demonstrators take part in a protest marking the National Day Against Femicide in Santiago in December. (photo: Iván Alvarado/Reuters)
To her friends and family in the Chilean capital of Santiago, 25-year old Silvana Garrido was a radiant, happy and beautiful woman full of life and love for her three-year-old daughter.
"From the first instance, her family and closest friends believed it was a femicide perpetrated by her partner," says Francisca Millán Zapata of AML Women's Defence, who represented Ms Garrido's family in court.
Ms Millán Zapata says that the police and prosecutors did not take the concerns of Ms Garrido's family and friends seriously, instead opting to believe the version of events put forward by the victim's ex-partner, Fernando Flores.
The family had to "fight ruthlessly" for four years to achieve justice, she says. But in April 2023, Fernando Flores was found guilty of pushing her to her death from her 23rd-floor apartment. He was sentenced to life in prison.
The crime was classified as a femicide, which under Chilean law is defined as the murder of a woman by her partner or former partner.
Not only did Fernando Flores get a tougher sentence because the murder was ruled a femicide, but under Chile's new Reparation Law for Victims of Femicide, Ms Garrido's daughter will qualify for financial support.
The girl, who is seven now, is eligible to receive a monthly state allowance of 160,000 Chilean pesos ($200; £160) until she is 18 years old.
The law was passed in April, and is one of the most comprehensive legal measures in Latin America to support relatives in a region with some of the highest femicide rates in the world.
Danitza Pérez Cáceres, the executive director of Abofem, a Chilean network of female lawyers that specialise in gender rights cases, says the reparation law sets an important precedent in Latin America.
"This is the first [which provides for] a permanent state allowance for the affected child," she explains - but warns it remains to be seen how it works in practice.
Chile's Minister of Women and Gender Equity, Antonia Orellana, says that the law was brought in to lend support to children whose mothers have been killed by their partners, leaving the child with no mother and a violent father behind bars.
Minister Orellana says the aim is to go further than just providing financial aid - and to recognise violence as a structural problem.
She insists that the problem is wider than the approach which the justice system has typically taken in femicide cases, focussing on "a victim and an aggressor".
According to Minister Orellana, the core focus of the law is to protect children's wellbeing and to break the cycle of violence, which can see children of aggressors turn into violent adults.
"The most effective measure in the long-term is avoiding the intergenerational transmission of violence," she argues.
As well as an allowance for the children of murdered women, the law also grants employment protection to survivors of attempted or frustrated femicides.
And under the new provisions, family members are offered priority access to social services, such as psychological counselling and support.
Ms Orellana hopes that lawmakers will also pass a bill aimed at preventing femicides and abuse. The Right For A Life Without Violence law, which is backed by the Ministry of Women, seeks to strengthen the institutional support offered to women to help them escape violent circumstances.
She believes that the number of femicides can be reduced, but in her view gender-based violence is a global challenge - not restricted to Latin America.
In the meantime, the monthly allowance which the daughter of femicide victim Silvana Garrido will now receive is welcomed by her family.
The girl is being looked after by her grandmother and her aunt, Brenda Garrido - the two women who led the fight for justice for Silvana Garrido.
"It's a support. Even though with today's inflation it's not that much, it does help," Brenda Garrido says.
"The institutions failed my sister, the state failed her, we said it [her death] wasn't suicide and they didn't listen. So I think this is something good for my family."
Silvana Garrido's Instagram page is open to the public and has become a space of memory and activism for femicide victims.
Before her death, Silvana Garrido had posted dozens of selfies with her daughter, laughing at the app's humorous filters, with heart emojis dotted across each image.
Brenda Garrido smiles when she thinks of her sister: "She was full of joy, and was the best mum in the world."
"Her daughter is just like her, they are like two peas in a pod."
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Pollution from a factory. (photo: Science Focus)
The rules could reduce carbon emissions but also extend some fossil fuel infrastructure, leaving some communities to continue reckoning with air pollution.
That dichotomy — a result of the administration’s complicated bet on carbon capture and hydrogen technologies — could leave some communities to continue reckoning with air pollution and other localized impacts from some coal and natural gas power plants, even as the nation gets nearer to its climate goals.
As many national environmental organizations like the Sierra Club touted the rulemaking’s potential to reduce emissions, some local environmental justice leaders expressed mostly concern about what it could mean for their communities.
“It’s extending the life of fossil gas plants and will increase air pollution in disadvantaged communities,” said Juan Jhong Chung, a policy director of the Michigan Environmental Justice Coalition. “Those policies will lead to sacrifice zones. A lot of the burdens are localized and the benefits go to whiter wealthier communities.”
The rulemaking, which the Environmental Protection Agency announced Thursday, could broaden fault lines within the environmental community as the administration tries to stay between lines drawn by the Supreme Court and still achieve its climate ambitions.
The draft of the regulations will now undergo a monthslong public process before it is finalized. Once implemented, the regulations will almost certainly face legal challenges from industry groups and states led by Republican attorneys general.
The proposed rules would require nearly all of the United States’ coal and large gas plants to reduce or capture about 90% of their carbon dioxide emissions by 2038.
The EPA designed the rule to conform to the Supreme Court’s June decision in the West Virginia v. EPA case. The court said the EPA could not use provisions of the Clean Air Act to make utilities shift away from coal-fired power plants and move to generating power with wind, solar and other cleaner sources of energy.
But it left other options intact within the law, including requiring pollution limits like the ones the EPA proposed Thursday, which would force gas and coal plants to capture and store carbon pollution. Gas plants could also co-fire with hydrogen, meaning they would use a cleaner fuel for at least part of their generation.
Environmental attorneys said the EPA tailored its new regulations to fit within the Supreme Court’s ruling.
“What you can do is the traditional approach: to set pollution standards that reflect numerical emission limits that can be achieved by affecting pollution controls on individual plants,” said David Doniger, an attorney and senior strategic director of the climate and clean energy program at the Natural Resources Defense Council, which supports the rulemaking.
If the rules are enacted, some power companies might choose to retrofit their plants with carbon capture and storage technology, which has not been implemented or proven to be effective at a broad scale. Others might choose to retire coal and gas plants and invest in renewables like wind and solar, a trend already happening as these technologies decrease in cost.
“It will be up to companies to decide which plants they’ll operate for a long time and at a high rate,” Doniger said. “This rule is intended to sort of backstop the business as usual, make sure it happens and go further and faster.”
The Inflation Reduction Act included subsidies that apply to carbon capture and storage technology and hydrogen technologies, which could make those technologies cheaper and help bolster the EPA’s case that it’s not overly burdensome for companies to regulate their emissions.
Doniger said he thought the rulemaking would hold up to court scrutiny.
The rulemaking doesn’t cover all power plants equally. Some smaller power plants and those used only when demand is extremely high — called peaking units — wouldn’t be subject to the same stringent standards. That’s been of concern to some environmental advocates.
“Those peaker plants are the ones closest to environmental justice communities, Black and brown communities, communities of color,” Jhong Chung said, adding that carbon capture and hydrogen were unproven solutions. “We will see more cases of respiratory illnesses here” in Detroit.
Some small gas plants could actually run more often as companies shift how they supply energy to conform to the rulemaking if it’s enacted, Doniger said. That could produce more local air pollution from nitrogen oxides — or NOx — from small gas plants.
Doniger said the NRDC was eager to work with communities to find solutions and said the EPA would need to pay close attention to those kinds of pollution impacts.
“There are things EPA can do to strengthen pollution controls on categories of sources if we’ll have extra emissions of NOx on small gas plants because they run more,” Doniger said.
Environmental advocacy groups that are proponents of the rule, like the NRDC, think the rulemaking will ultimately shift power companies away from coal and natural gas, while giving those businesses choices during the transition.
But some environmental advocates say the Biden administration is falling short and giving an unnecessary lifeline to the fossil fuel industry.
“The rule continues to provide a pathway for fossil fuel plants to operate indefinitely at a time when we need to transition dramatically from fossil fuel plants to renewable energy plants,” said Jason Rylander, a senior attorney at the Center for Biological Diversity, who would prefer the administration pursue a nationwide cap on carbon emissions through a separate legal mechanism within the Clean Air Act.
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