Saturday, November 8, 2008

It's time to privatize marriage!

The provision added to the State Constitution by Proposition 8 was deceptively simple:

SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.

But it is not at all simple. It is time to make marriage a private affair.

"Marriage" has two complex components, a religious component and a civil law component. To understand the difference between the religious component and the civil component, consider this. A couple could be "married" by the Pope on the steps of the largest Catholic church in the country and the marriage would not be legally valid in any state without a license issued by a government clerk. Yet in many places, a marriage ceremony performed by such a clerk pursuant a license issued by that clerk would be valid anywhere else in this country. The validity of a "marriage" in America is all about a government license and nothing about the beliefs of the couple involved.

It wasn't always this way. Prior to the Civil War, Americans would have been startled at the idea that they would have to get the government’s permission to get married. Our Founding Fathers had no understanding of marriage in that context. Americans must remember that marriage license laws were introduced in America mostly to prevent blacks from marrying whites, in other words to write into law racial discrimination based on beliefs of the sincere American majority.

And so it came about that in our legal federation marriage must be licensed by the government. When two people accept a state marriage license, they authorize the state to define a "contractual agreement" between them. This is the most bizarre legal entanglement ever foisted on a naive population. Most Americans who marry have no idea what is in the terms of the contract they sign. Unlike most contractual agreements people enter into, a majority of the legislature of the state in which the couple reside can rewrite a portion or all of that contract, without the consent of the couple. Further, unlike most contractual agreements, the terms of the contract change the moment the people involved relocate their residence to another state.

It is true that most religions have some form of marriage ceremony and many use terms like "sacrament" or assign a context of "sacred duty" to marriage. Within the religious context marriage historically relates to sexuality and procreation. And the dominant religions in this country adhere to doctrine the precludes gay marriage.

But whatever religious context within which one may consider marriage, "real Americans" know that religious context has no place being incorporated into any law.

The problem isn't just that Proposition 8 precludes gays from getting married. The problem is that entire legal structure related to marriage legalizes discrimination. The crux of the problem is that single persons (including couples who cannot get a marriage license) do not have the same status under the law that a state marriage license grants to those who can get one.

The 14th Amendment to the U.S. Constitution clearly states: "No State shall...deny to any person within its jurisdiction the equal protection of the laws." Proposition 8 clearly denies some persons the equal protection of the law by expanding the discrimination inherent in marriage license laws. We could discuss the concept of "civil unions." But such a conversation is relevant only if you believe in applying the legal doctrine of "separate but equal" whenever "equal protection of the law" is inconvenient for the majority within one American state.

My beliefs and your beliefs about marriage shouldn't be the basis of a legal structure creating different classes of people. Apparently, around 1867 many people who sincerely believed that blacks and whites should not marry instituted marriage license laws. Today marriage license laws exist that prevent gays from marrying because the majority of people sincerely believe gays should not be allowed to marry.

Many do still believe marriage license laws exist to protect children or women. But that is belied by the fact that we do not prohibit parents of children under the age of 18 from getting a divorce. Nor do we require women to marry to conceive children through artificial insemination. The majority of married women today do earn a living, and divorce laws offer little economic protection to either party. We most certainly do not require consenting adults to be married to engage in sexual activity.

It is time for California (and the rest of the nation) to eliminate from its statutes all references to any form of the word "marriage", and to "spouse", "husband", and "wife" or any term equivalent to those terms. The law must be silent on marriage as there is no way that the use of the term could not create a "suspect class" of favored people.

To paraphrase the U.S. Supreme Court: To separate [legally unmarried people] from others of similar age and qualifications solely because of their [marital status] generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.

It's time to privatize marriage, to make it a private affair between people, not subject to government interference.

Wednesday, November 5, 2008

Obama's win is not a mandate for liberal social policy - consider California's Prop 8

Based on the 2008 election results in California, Obama's win is in no way a mandate for liberal social policy. Two issues that were on the California ballot were social policy issues:
  • Proposition 4 which would have required parental notification before a teen could get an abortion and which was defeated by the voters;
  • Proposition 8 which placed in the state constitution a provision effectively banning gay marriage.
In nine counties casting a majority for Obama, voters also approved requiring notification of parents in advance of any teen abortion. In six counties casting a majority for McCain, voters were against the notification measure. These 15 counties seem to indicate a discrepancy between attitudes on social policy and reasons for voting for a presidential candidate. In itself, this would not be surprising. After all, the issues most affecting how people voted for President - the economy and national security - do not indicate attitudes on any single social policy issue.

So how does one explain the differences between the two maps on social issues, Prop 4 Abortion Notification (top right) and Prop 8 Gay Marriage Ban (bottom right)?

First, consider the voting pattern on Proposition 22 passed in 2000 which created a statute defining marriage as between a man and a woman and which the State Supreme Court overturned as violating the state constitution. As you can see from the map bottom left, Prop 22 was defeated in only a few of the most liberal California counties. It was clear from that vote that even in the generally liberal counties the electorate was probably two decades away from supporting gay marriage.

Now, consider the voting pattern on the 2008 measure, Proposition 8. While the measure was defeated in many of the traditionally liberal counties representing a gain for the gay community, in fact Prop 8 passed in Los Angeles County, Imperial County, Solano County, and Sacramento County.

Why did that happen? We have no polling data on these ballot issues at this time. So all one can do is speculate based upon other considerations. Generally the Hispanic and Black communities are thought to be more conservative on the issue of gay marriage due to cultural and religious background. And while the same cultural and religious background might favor anti-abortion laws such as Pro 4, the abortion notification issue is decidedly a women's issue that would tend to cause many somewhat socially conservative women to vote against it while still voting for Prop 8.

Though the high turnout in the Black and Hispanic communities in other states probably got Obama elected, the high turnout in California did nothing towards getting him elected and may have led to Proposition 8 winning.

While Obama's win might generally be considered a good thing in the gay community nationally, in California it likely was a disaster for the efforts of the gay community to gain the right to marriage. In 2000, California voters approved a simple initiative statute stating the marriage would be defined as between a man and a woman. The California Supreme Court ruled that the statute violated the California Constitution. In 2008 the California voters approved an initiative amending the California Constitution to again declare that marriage is between a man and a woman.

Hence, one can conclude that Obama's win does not represent a general voter mandate for liberal social policies.

Thursday, August 28, 2008

Stop Local Stations from Becoming "Pay-TV"

Based on the recent news that NBC is to start charging its local affiliates for network shows and that the local stations are planning to charge cable and satellite providers as much as 200% more for carrying their signals, I wrote the following letter to Senator Barbara Boxer who is on the Senate Commerce Committee:
Beginning last November I wrote a series of blogs that nobody read on the radical changes occurring in the TV industry. Basically I pointed out that the local broadcast TV industry in 2008 is exactly where the radio industry was in 1948.

The only difference is that we have such a myriad of federal regulations protecting local TV stations to the detriment of the public that they may not adapt effectively until it's too late and we, the public, have lost any chance at meaningful local TV.

It now appears that their primary attempt to adapt is to collect higher fees (as much as 200% higher) from cable and satellite carriers which will be passed on to us, the viewing public. In effect, they are attempting through a back door to become "pay TV" since fewer than 20% of homes are without cable or satellite services.

And with NBC announcing they will be charging the locals for network programming, it could be said that the networks are also becoming "pay TV" through the back door.

It's time for the Senate Commerce Committee to hold hearings on this attempt to turn broadcast television into "pay TV."

Wednesday, July 23, 2008

FERC Ponders Allowing Public Input, Environmental Review of Proposal for Electrical Generators in Whale Route

It was one year ago that my article entitled "Limited Time Only - Act now to own your piece of the ocean off the Mendocino Coast" (posted below) was published. This week the alliance of Northern California coast commercial and recreational fishing associations known as Fishermen Interested in Safe Hydrokinetics (FISH) has announced that the Federal Energy Regulatory Commission (FERC) is extending its time to consider the FISH committee request for public participation and environmental analysis in developing federal licensing regulations for nascent wave energy generation projects.

In other words, FERC has to think about whether and how it would allow public participation and environmental analysis before issuing permits allowing PG&E and Chevron to place electrical generators and a grid in the Gray Whale Migration Route. More than 200 hydrokinetic projects have been proposed across the United States as a solution to environmental issues. Two wave energy projects are currently proposed for the coast off Mendocino County and one in Humboldt County, in one of the most flourishng marine areas on the West Coast. Seven are off the Oregon coast, including Lincoln County

Offshore from Mendocino County PG&E's proposal covers 68 square miles. Chevron's proposal is for a premilinary study. If implemented the proposals would require significant exclusion zones and would be located along the Gray Whale migration route. (See map above)

The City and County of San Francisco filed an initial statement in opposition to FERC even processing these applications because of lack of staff . In it's statement, the San Francisco argued:
While specifically not referring to this application, San Francisco believes the risk of sparking a 'gold rush' by ill prepared applicants with ill-conceived projects is too high and the drain on Commission resources in reviewing such applications would be too great.
But the process has moved on.

As in all such complex regulatory processes, before the potentially effected public could wrap its collective head around the meaning of the proposals, FERC established rules regarding the process which essentially precluded public involvement in the process. As one writer noted:
This pejorative May 21, 2008 FERC ruling rejects requests of FISH, Fort Bragg, Mendocino County and local stakeholders’ to rehear their right to participate in this wave energy development project. It is noted since onset of the Mendocino wave energy agenda, FERC and PG&E continue to swiftly move toward their goals while intentionally blocking all local, public participation. As wave energy development projects on the U.S. coasts progress, Americans are discovering that FERC’s convoluted wave energy licensing process is ill-defined, biased and discriminates against public participation.
As I noted in my article a year ago,
If you...want to get in on the action, you'd better hurry as FERC is likely to fast track these applications to approval before 2009 when a new President takes office.
What the County of Mendocino, the City of Fort Bragg, the Recreational Fishing Alliance, and Lincoln County, Oregon discovered is that FERC really didn't plan to hear from them. So they've joined the FISH Committee’s request for a rehearing of FERC's policies. According to a report by Recreational Fishing Alliance West Coast Region Director:
Potential negative impacts on marine life from wave buoys include electromagnetic pollution and interference with migratory finfish, whale entanglements and altering the bottom structure of the seabeds. Turbine devices submerged in rivers, bays and estuaries could entrain juvenile fish.

"We take this issue very seriously and, if necessary, intend to vigorously pursue our legal options," said John Innes, board member of the North Coast Fishing Association. "We are not opposed to renewable energy, we only want to make sure we know what the impacts will be to fish and other marine life before we sign off on these projects. Considering that wave energy is in its infancy, it is extremely important to have proper controls and regulations in place to prevent non-recoverable detrimental effects on our ocean environment."
If you are concerned, its better late then never to get involved.

Limited Time Only - Act now to own your piece of the Pacific Ocean off the Mendocino Coast

Yes, folks, act now! Your friends at the Federal Energy Regulatory Commission (FERC) will give you piece of the Pacific Ocean. All you have to do is file an application to reserve your piece of the ocean. Chevron and PG&E have filed applications creating potential rights that constitute a claim over the ocean surface, similar to staking a mining claim. If they "mine" these "claims," the necessary structures would occupy the surface to the exclusion of others, including whales.

The California Energy Commission web site has some information on wave energy leading one to believe that this State Commission might be involved. But Bob Aldrich of the California Energy Commission's Media and Public Communications Office stated: "We do not have any “experts” to speak of on wave energy at the Commission. I wrote the page, which was created based on information from a number of places." He also reflected a naive view: "You may also need Coastal Commission approval for such a wave energy device.

In fact, the filings are with the Federal Energy Regulatory Commission, the people who allowed California to be ripped off by energy companies a few years ago. Thus the claims are likely to be outside the regulatory scope of State of California agencies such as the Coastal Commission. Legal challenges would inevitably end up in the Bush Supreme Court which has already established its sympathies against state regulation.
PG&E is seeking to have two 40-megawatt wave farms up and running off the state's north coasts within a few years, according to documents it has filed with the Federal Energy Regulatory Commission, or FERC.

The Mendocino County wave farm will be located off Fort Bragg in open ocean a half mile to 4.5 miles offshore. A 68-square-mile area will be assessed. PG&E essentially will turn the zone into a wave-energy testing ground, spending up to $3 million to try out various technologies from up to four manufacturers. "A number of different device concepts are being pursued by independent device manufacturers, and there is no industry consensus at this time on the optimal energy conversion technology," PG&E execs wrote in an application for a preliminary permit for the project. "The initial ... devices to be used will be selected from device manufacturers who have sufficiently mature technologies available for deployment."

On July 2, Chevron California Renewable Energy, Inc. filed a preliminary permit application with the FERC. The Town of Mendocino would be dead center in the claim area, although wave energy plants are not normally visible from shore. It would avoid the Van Damme State Marine Area. The large study area is framed in order to locate a smaller project area. That larger area is a rectangle that runs from three miles offshore to less than a mile from shore, from Point Cabrillo to a spot halfway between the mouth of Little River and Albion.

Like PG&E, Chevron plans to evaluate alternative designs and locations of wave energy conversion devices.

"These devices would be combined in arrays for demonstration scale or commercial scale power production," Chevron said in a July 5 letter to local government agencies.

Wave energy technology is moving from the idea stage to the practical at breakneck speed.

Chevron's proposal is nearly identical to PG&E's, including a competition among manufacturers and technologies, which could make the Mendocino Coast the world's leading spot for wave energy research, at least as the world stands now. Wave energy plants proposed all over the world generally come with a single technology.

PG&E is in preliminary discussions with Ocean Power Technologies of New Jersey, the U.K's Ocean Power Delivery and Ireland's Finavera Renewables. While wave energy technologies vary, they essentially involve a device that floats on the ocean's surface and that harnesses the power produced by the surf to drive a turbine that generates greenhouse gas-free electricity. PG&E will deploy multiple wave-energy devices in an array moored to the ocean's floor and connected to the shore by a transmission cable.

Chevron, however, has picked a company and a technology to start with The Pelamis which resembles a chain of bobbing giant redwood trees or wriggling giant sea serpents. Waves jostle the links between Pelamis sections, pushing hydraulic rams to provide the energy.

Chevron estimates the power range from a tiny 2 megawatts to 60 megawatts, about twice as much as needed to power the entire coast. The PG&E plan hopes for 40 megawatts.

Chevron is making substantial investments in alternative energy. Although the Chevron company has California in its name, all the mailing addresses are in Houston, Texas.

Chevron would connect the power via undersea cable to an unnamed PG&E substation. Chevron promises public meetings and "extensive public process."

On August 14, 2006, Roger Bedard, Ocean Energy Leader, Electric Power Research Institute (EPRI), gave a presentation to the Fort Bragg City Council about the benefits of wave energy which, according to minutes of the meeting, included the following points:
• Wave energy is clean with no pollution or emission of greenhouse gases.
• It is a sustainable and renewable source with high power density and creates working class jobs.
• This new technology, with proper maintenance, will be one of the most benign energy-producing
technologies around.
• He described three of the dozens of different types wave energy devices made today.
• Fort Bragg is considered a possible site for wave energy because it has the infrastructure: an
outflow pipe from the former mill site with an easement; a PG&E substation nearby on Walnut
Street; and a harbor with machine shops and docks that could possibly provide device deployment.
• Other fishing communities have formed a port liaison project where engineers and scientists get
together with fishermen and crabbers and come up with a solution for the greater good.
• National Oceanic & Atmospheric Administration (NOAA) reimburses fishermen for their time spent
on the project.
• Hal LaFlash, Director Renewable Energy Policy & Planning, PG&E, stated that PG&E is working
toward 20% renewable energy by 2010.
The minutes of that meeting show some signs of discussion:
The following was noted in response to question from the public:
• The effect of tsunamis is very small as the devices are located about three miles offshore.
• The Coast Guard, which must approve installation of the plant, has rules about beacons,
transponders and lights. Wave machines are also indicated on their charts.
• Wave energy devices are modular and installed in small increments. If there are no unforeseen
effects, another modular can be installed.
• Typically waves that reach the shore are reduced by 10%.
• Ocean Beach was not a viable site because it would have been very costly to upgrade power from
the west side of San Francisco to the east.
• Three California communities – Morro Bay, Eureka, and Fort Bragg will be considered as potential
sites September 20, by PG&E, the California Energy Commission, and the Public Energy
• It costs $100 million to $150 million to build a plant which employs about 30 people full time.
Independent developers invest in wave energy plants.
• Government subsidizes the first plants to get the market going. Production tax credits are offered.
• There is no history on how long units last because the technology is so new; however, they are
designed to last 20 years.
• The mooring is similar to mooring a ship with anchors, clump weights, and cables.
• LaFlash added that PG&E has an open solicitation for renewable energy.
• The on-shore facility might be at PG&E’s Walnut Street site depending on voltage.

The following was noted by Council during discussion of this item:
• Councilmember Melo suggested that research be done on the Fort Bragg Local Coastal Plan, in
particular Environmentally Sensitive Habitat Area restrictions. The easement for the wastewater
treatment plant goes out 600’. He believes that outfall was blasted into the bedrock, not buried in
sediments. He stated that he supports finding out more about this.
• Councilmember Hammerstrom said that he appreciates the depths of answers from Bedard and the
fact that he also admits when he does not know the answer. He asked if the site could be relocated
from time to time to distribute its effects. Bedard replied that it could be done, but there would be
cost impacts. It would have to be a really good reason to move it.
The President and CEO EPRI is Steven R. Specker, a PhD in nuclear engineering, whose primary work background was with General Electric's nuclear power division. The company's Strategic Vision is described on its web site as follows:
The Electricity Technology Roadmap initiative began in 1997. Although spearheaded by EPRI, over 200 organizations contributed to the framing of this vision and the development of an initial report in 1999. It was organized around five Destinations that are critical milestones on the path toward achieving a sustainable global energy economy by 2050. The five Destinations are:
(1) Strengthening the Power Delivery Infrastructure
(2) Enabling the Digital Society
(3) Boosting Economic Productivity and Prosperity
(4) Resolving the Energy/Environment Conflict
(5) Managing the Global Sustainability Challenge
One of its related reports is entitled Limiting Challenges Report #12: Ecological Asset Management which in its Preface contains the following paragraphs:
Eco-asset management harnesses market forces to preserve, enhance, restore, and create the natural capital life itself depends upon. In this report, eco-asset management is described within the context of the societal objectives defined by the Electricity Technology Roadmap, a collaborative exploration of the future of the global electricity enterprise. Eco-asset management is characterized as a market-based approach with promise for maximizing the productivity of natural resources to promote economic vitality, protect environmental and public health, improve the human condition, and accelerate global progress toward a sustainable future.

For companies in the energy, agriculture, mining, timber, real estate, land management, and other resource-based sectors, eco-asset management oilers significant opportunities for increasing revenues, reducing compliance costs, eliminating liabilities, and managing risks. Improving environmental quality, protecting public health, and demonstrating corporate citizenship represent additional—and substantial—benefits. For government agencies and other stakeholders, market-based approaches promise solutions for achieving environmental goals more efficiently and at lower cost, as well as for addressing complex challenges such as climate change, water shortages, and biodiversity loss.
The Institution of Engineering and Technology, a British research organization, noted the following about wave energy in a "fact file" publication entitled Environmental Effects of Electricity Generation: Renewable Sources:
Wave Energy

There are, basically, two types of wave energy device. The first utilises the essentially up and down movement of the sea’s surface and is usually located well away from a shore-line where the average power of some 50kW per metre of wave front. The other type utilises the action of the waves on the sea-shore. Clearly, which of these devices is used has a considerable effect on the type of environmental impact of wave technology.

Off-shore devices have received the most attention in the UK and will therefore be considered first. As wave energy devices extract energy from motion, the water surface behind the device is essentially calm. There is, therefore, a reduction in the sea’s action on the seashore, and hence an effect on its ecology. How effective this change is depends on how far offshore the device is moored and how long it is. The devices themselves could be a navigation hazard, particularly if they broke their anchors. Seals and predatory sea birds may also be attracted to the devices. Although the actual method of energy extraction, the conversion of this energy into electricity, and its subsequent transmission to population centres have not been agreed, it is already clear that the cabling ashore and the siting of transmission facilities, in what would generally be areas of high scenic value, would cause the greatest environmental concern about potential wave energy exploitation. The impact of transmission facilities is, in fact, common to many types of renewable energy sources.
What hasn't been discussed is that the Mendocino County proposals would place electrical generation and transmission facilities electromagnetic fields in or near the Pacific Coast whale migration routes. It would likely take a decade after full installation to know the real effects.

Are we really ready to do this? If you are and want to get in on the action, you'd better hurry as FERC is likely to fast track these applications to approval before 2009 when a new President takes office.

Originally published July 27, 2007 and republished August 1, 2007.