Category Archives: Public health

Taking the low road: Alabama judge invites dismembering abortion rights

Judge Edward Earl Carnes of the Eleventh Circuit U.S. Court of Appeals, in Alabama, wrote up a “Kavanaugh case”–dripping with loaded words and clearly inviting the U.S. Supreme Court, once bulked up with Judge Kavanaugh, to overrule the Eleventh Circuit and ultimately to take apart, piece by piece, 45 years of abortion rights in the United States. Carnes has accumulated a highly controversial record on civil rights.

The Eleventh Circuit case concerns whether Alabama can so severely restrict use of a dilation and evacuation procedure, formerly called dilation and extraction, as to effectively ban it in second-trimester abortions. Citing precedents from the Supreme Court, the three judges from the Eleventh Circuit agreed with a district court decision that Alabama cannot do so.

The opinion written by Judge Carnes reeks with religious prejudice and vicious sarcasm. From the State of Alabama arguments, Carnes adopted the pejorative term “dismemberment abortion” instead of the medical term “dilation and evacuation procedure” and adopted the religiously prejudiced term “unborn child” instead of the medical term “fetus.”

Then Judge Carnes tried to ridicule prior decisions from the U.S. Supreme Court. For example, citing Stenberg v. Carhart [530 U.S. 914, 2000] and supposedly summarizing the recent, challenged Alabama law, he wrote on pages 3 and 4, “Killing an unborn child and then dismembering it is permitted; killing an unborn child by dismembering it is not.”

In citing the prior Supreme Court case, Judge Carnes quoted only from a dissent in the case, written by the late Justice Scalia, criticizing what Scalia called “the Court’s inclination to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.” Carnes is clearly charting a course for dismembering abortion rights, extending from Roe v. Wade [410 U.S. 113, 1973].

– Craig Bolon, Brookline, MA, August 22, 2018


West Alabama Women’s Center et al. v. Williamson et al., U.S. Court of Appeals for the Eleventh Circuit, Case no. 17-15208, August 22, 2018

John Eidsmoe, Foundation condemns inhumanity of Eleventh Circuit decision striking down Alabama ban on intact D&E abortions, Foundation for Moral Law (Montgomery, AL), August 22, 2018

Stephanie Akin, Anti-abortion group doubles down on Kavanaugh after he told Susan Collins Roe is ‘settled law’, Roll Call (Washington, DC), August 21, 2018

Unattributed editorial, The red-state war on abortion rights, Boston Globe, April 23, 2018

Winds of change: limits on marijuana

At the federal and state election of November, 2016, Massachusetts voters approved Question 4 by a 54-46 percent margin, legalizing marijuana for all uses. Opposition concentrated in the middle and outer Boston suburbs and on Cape Cod. Otherwise support spread across the state. Majorities voted Yes in 260 cities and towns with combined population of 4.7 million (72 percent of state population according to the 2010 census). Majorities voted No in 91 communities with combined population of 1.8 million (28 percent).

Voting to legalize marijuana did not mean accepting marijuana as a local business. Over the next year and a half, 156 Massachusetts cities and towns with combined population of 2.7 million (42 percent of state population) enacted moratoriums on marijuana shops. Some communities enacted outright bans, and some also banned or restricted other types of marijuana business. Most moratoriums were set to expire between June 30, 2018, and June 30, 2019.

Despite warnings from the state’s attorney general about enacting a moratorium extending into 2019, eight towns did so: Abington, Mansfield, Douglas, Rochester, Berlin, New Marlborough, New Braintree and Florida (listed by decreasing populations). Majorities in all but Mansfield had voted Yes on Question 4.

Bans on marijuana shops: As of late June, 2018, 76 Massachusetts cities and towns with combined population of 1.4 million (22 percent of the state population) had enacted permanent bans on marijuana shops. Most were communities where majorities of voters had voted No on Question 4. In those communities, town meetings and city councils could enact bans. Elsewhere voters had to approve.

In 18 Massachusetts communities where majorities of voters in a state election had supported Question 4, voters in local elections banned marijuana shops: Milford, Stoughton, Concord, South Hadley, Southbridge, Bellingham, Auburn, Whitman, East Bridgewater, Holliston, Medway, Acushnet, Hull, Southwick, Freetown, Merrimac, Barre and Mount Washington (listed by decreasing populations).

Hazards: Although milder than those produced by cocaine, amphetamines and narcotics, addictions to marijuana are well known. Craving, tolerance, withdrawal symptoms, adverse reactions, cognitive and behavioral impairments and mood disorders tend to increase with frequency and amount of marijuana use. A range of psychological dependence shades into addiction, similar in some ways to dependencies on alcohol and tobacco and to compulsive gambling.

Marijuana users who begin as teenagers or in early adulthood incur risks of lasting harm. As with other addictive regimes, some people are not attracted to marijuana, and some avoid addiction despite exposure. There is controversy over degrees of risk and amounts of harm, and there is currently no reliable way to predict individuals becoming addicted or suffering lasting harm.

Trends and publicity: Rejection of local marijuana business has been notably firm and fairly cohesive among Boston’s middle and outer suburbs. From Boxford and Chelmsford to the northwest, curving through Weston and Northborough to the west, Foxborough and Raynham to the southwest, and Braintree and Duxbury to the southeast, towns banned marijuana shops outright. Some banned all marijuana business.

Those are communities where many live who grew up in the founding high-tech surges. Most such workplaces were located in the suburbs spreading outward from Route 128, so those are also the communities where much of the workforce went. Family values remain strong and upwardly mobile. There is low tolerance for needless risk to sons and daughters from parents who reached success in their careers. As one speaker at a town meeting put it, “We are a community that builds ball fields and parks.”

In contrast, the Boston Globe–New England’s best known news medium–has been patronizing marijuana partisans, often focusing on interests seeking a faster pace of development. Reporter Dan Adams carved out a niche writing items favorable to marijuana interests that rarely mention other outlooks. While there is an occasional contrary view written by someone else, it tends to get lost in the parade for marijuana. Chasing profits instead of candor, Globe managers foster public and reader disservice.

– Craig Bolon, Brookline, MA, July 2, 2018


Massachusetts city and town actions on marijuana shops, Brookline Beacon, July, 2018 (notes majorities voting to legalize marijuana or not, via Question 4 in 2016)

Ally Jarmanning and Daigo Fujiwara, Where marijuana stores can and can’t open in Massachusetts, WBUR (Boston, MA), June 28, 2018 (presents data through an interactive map)

Dan Adams, Attorney General Maura Healey’s ruling could slow Massachusetts marijuana industry, Boston Globe, June 25, 2018

Steven Hoffman, Which Massachusetts towns won’t allow marijuana sales?, WBZ (CBS Boston), June 22, 2018 (tabulates data from the Massachusetts Municipal Association)

Timothy Naimi, Why marijuana policies in Massachusetts aren’t strict enough, Boston Globe, June 20, 2018

Dan Adams and Margeaux Sippell, Recreational marijuana companies face bans, moratoriums in cities and towns, Boston Globe, March 17, 2018

Zoe Mathews, North Andover bans commercial marijuana, North Andover (MA) Eagle-Tribune, January 30, 2018

Massachusetts ballot question 4: legalize marijuana, Boston Globe, November 16, 2016 (includes interactive map showing voting by cities and towns)

Massachusetts marijuana legalization, Question 4, Encyclopedia of American Politics (Ballotpedia), November, 2016

Kevin Sabet, Madeline Meier responds to latest IQ and marijuana studies, Smart Approaches to Marijuana (Alexandria, VA), January 19, 2016

Madeline H. Meier, Avshalom Caspi et al., Persistent cannabis users show neuropsychological decline from childhood to midlife, Proceedings of the U.S. National Academies of Science 109(40):E2657-2664, 2012

Alain Dervaux, Cannabis use and dependence, Presse Médicale 41(12):1233-1240, 2012 (in French)

Alan J. Budney, Roger Roffman et al., Marijuana dependence and treatment, Addiction Science and Clinical Practice 4(1):4–16, 2007

Craig Bolon, Marijuana business: trends in Oregon, Brookline Beacon, May 29, 2018

Craig Bolon, Against neighborhoods: Brookline zoning for marijuana, Brookline Beacon, May 12, 2018

Craig Bolon, Medical marijuana in Brookline: will there be a site?, Brookline Beacon, December 7, 2014

Marijuana business: trends in Oregon

Oregon has the most experience of any U.S. state with commercial marijuana. For many years before legalization, starting as early as the 1950s, surveys of Oregon found more marijuana use and cultivation than in any other western state. Mild climate and moderate rainfall in the Willamette Valley, which produces widely known orchard fruits and wines, also favored covert marijuana farming.

In 1973, Oregon became the first state to decriminalize small amounts of marijuana: up to an ounce. By the 1980s, marijuana had become the state’s most valuable crop. In 1998, Oregon became the second state to legalize and regulate medical marijuana. In 2014, Oregon became the third state to legalize and regulate recreational marijuana, following Colorado and Washington two years before.

Product trends: Quality and strength of marijuana in the United States evolved after early restrictions, starting with federal and state laws during the 1930s. Bulk “bricks” of a pound or two–common through the 1970s–were often smuggled from Central and South America. Strength was generally low. Delta-9-tetrahydrocannabinol (THC), the main euphoric, measured a few percent by weight in a mix of dried leaves, flowers and stems. Sinsemilla from only unfertilized flower buds–without seeds, leaves or stems–was unusual and costly.

Popular grades of commercial marijuana

Grade A seedless, no large leaves or stems, 15 percent THC or higher
Grade B some leaves, few seeds, around 10 percent THC
Grade C largely leaves, seeds and stems, 5 percent THC or lower

Source: RAND reports

Processed marijuana began to capture U.S. trade during the 1980s and became a focus of consumer appeal. However, grade A sinsemilla needs greenhouses to protect against insects and fungus–optimized for light, temperature, moisture and nutrients. During decades of marijuana cultivation as a covert crop in Oregon, most producers look to have worked small, open-field plantings. Locally grown, grade B products overtook grade C imports and so far survive against industrialized, grade A products.

Business trends: When presented the option of a legalized and regulated business in 2015, experienced Oregon growers mainly adapted and expanded open-field plantings, an annual crop cycle harvested in early fall. Out of about 2,000 producer licenses approved and in process, as of May, 2018, nearly two-thirds were for locations in only four of the 29 Oregon counties: Clackamas, Jackson, Josephine and Lane. They span lowlands east of the Coast Range mountains around Interstate 5, running from Portland south through Salem and Eugene to Medford. That is where about three-quarters of the state’s residents live.

The first of the annual harvests after legalization, in 2016, shrank because of heavy rain, cold weather and hailstorms. The next year, nearly ideal weather provided a huge crop. The Oregon agency licensing marijuana operations has not published production and sales summaries. However, news writers claiming to have seen internal data say producers reported sales for 2017 of around 350,000 pounds against producer inventory, unsold in February, 2018, of more than a million pounds.

Within a few months after the harvest, wholesale prices collapsed. Grade B product formerly selling at over $1,500 a pound was reported dumped at $100 a pound or less, when costs of production ranged above $200 a pound. Some growers say they are converting smokable marijuana into more stable extracts, hoping to sell medical and edible products. Retail shops that bought at last year’s prices are being whipsawed by competitors who waited and bought at fire-sale prices. Half the workers in the Oregon marijuana industry may be out of jobs. Desperate business owners are increasing covert exports to other states that legalization was expected to retard.

– Craig Bolon, Brookline, MA, May 29, 2018


Suzanne Roig, Overproduction of marijuana floods Oregon markets, Bend (OR) Bulletin, May 26, 2018

Matt Stangel and Katie Shepherd, Oregon grew more cannabis than customers can smoke, Willamette Week (Portland, OR), April 18, 2018

Robert C. Clarke and Mojave Richmond, Cups, labs and terps, Cannabis Business Times (Cleveland, OH), April 4, 2018

Oregon Liquor Control needs cannabis monitoring and security systems, Audits Division, Oregon Secretary of State, February, 2018 (7 MB, 41 pp)

Pete Danko, A reckoning has arrived for Oregon’s overgrown cannabis industry, Portland (OR) Business Journal, January 10, 2018

Marijuana License Applications, Oregon Liquor Control Commission, 2018

Mahmoud A. ElSohly, Zlatko Mehmedic, Susan Foster, Chandrani Gon, Suman Chandra and James C. Church, Changes in cannabis potency over the last two decades in the United States, Biological Psychiatry 79(7):613–619, 2016

Omar Sacirbey, Growing high-quality cannabis in a greenhouse, Marijuana Business Daily (Denver, CO), September, 2016

Jerry Kieran, Measuring yield, Cannabis Business Times (Cleveland, OH), September, 2016

Daniel Cressey, The cannabis experiment, Nature 524(7565):280–283, August 29, 2015

Eric L. Sevigny, Is today’s marijuana more potent simply because it’s fresher?, Drug Testing and Analysis 5(1):62-67, 2013

THC content of sinsemilla and Mexican commercial-grade marijuana, Appendin B in Beau Kilmer, Jonathan P. Caulkins, Brittany M. Bond and Peter H. Reuter: Reducing Drug Trafficking Revenues and Violence in Mexico, RAND Drug Policy Research Center (Santa Monica, CA), 2010

Jonathan P. Caulkins, Estimated cost of production for legalized cannabis, RAND Drug Policy Research Center (Santa Monica, CA), 2010

Keith Stroup, America’s no. 1 crop: marijuana, High Times (New York, NY), April, 1986

Against neighborhoods: Brookline zoning for marijuana

This month–likely on Thursday, May 24–Brookline’s Town Meeting will vote on a risk-laden approach to marijuana zoning and licensing. A complex surface hides disorganized, hypocritical, neighborhood-hostile efforts. Two meetings on Thursday, May 10 showed confusions and lapses of community spirit: a review for some Town Meeting Members and a regular Advisory Committee meeting, both held at Town Hall.

Recreational marijuana regulation: At the 2018 Annual Town Meeting starting May 22, under Articles 17 through 22 Brookline could allow up to four retail shops selling recreational marijuana and up to four marijuana cafes. The Planning Board and the Planning staff, supported so far by three of the five Select Board members, propose to allow the recreational marijuana shops in Local Business zones as well as in General Business zones.

Brookline has five main General Business zones. They are mostly well separated from residential areas and schools: Commonwealth Avenue, Coolidge Corner, Brookline Village, Washington Square and the west end of Route 9 near the Chestnut Hill Mall. There are smaller ones near the north end of Harvard Street, bordered by Allston, and near the east end of Route 9, bordered by the Riverway.

There are seven main Local Business zones. Many thread through residential areas and near schools: the shopping center near Putterham Circle in South Brookline, the northern part of Harvard Street between Devotion School and Verndale Street, the middle part of Harvard Street between Pierce School and Marion Street, the northern part of Cypress Street near Washington Street, the middle part of Cypress Street near the High School and Route 9, the southern part of Cypress Street near Kendall Street, the east end of Beacon Street between St. Mary’s and Carlton Streets, and land near the west end of Beacon Street around Sutherland Road.

Threatened neighborhoods: Proposed zoning for marijuana includes so-called “buffer zones” extending 500 feet out from schoolyard boundaries. Marijuana shops are not allowed inside “buffer zones.” The maps that follow identify some of Brookline’s threatened neighborhoods–showing parts of Local Business zones outside “buffer zones.” Colored in bright blue are Local Business areas where marijuana shops would be allowed. “Buffer zones” around schools are cross-hatched.

Threatened neighborhoods near Harvard Street

HarvardStreetNeighborhoods

Source: Brookline Planning Department

 
 
Threatened neighborhoods near Cypress Street

CypressStreetNeighborhoods

Source: Brookline Planning Department

 
 
Threatened neighborhoods near Putterham Circle

PutterhamtNeighborhoods

Source: Brookline Planning Department

Information from Town Hall: Planning staff held a late-afternoon information session at Town Hall on May 10, sought by Precinct 5 Town Meeting Members. The two staff were Francisco Torres and Ashley Clark–hired in part to develop and promote plans for marijuana. They have fairly short spans of experience in Brookline, and they smile a lot.

At the Town Hall session were Betsy DeWitt–formerly a Select Board member–plus Phyllis O’Leary, Wendy Machmuller, Rob Daves, Andy Olins, Hugh Mattison and newly elected Cindy Drake from Precinct 5, John Bassett from Precinct 6, Craig Bolon from Precinct 8 and Regina Frawley from Precinct 16.

Precinct 5 Town Meeting Members generally opposed medical marijuana at the former Brookline Bank on the corner of Route 9, High Street and Washington Street. They spoke about keeping marijuana shops out of the Local Business zones on Cypress Street. Betsy DeWitt saw high profits from marijuana shops pushing out ordinary local business.

Planning has proposed no standards that support ordinary local businesses. Their proposals for zoning and licensing amount to a “first in the door” approach to zoning permits and business licenses. However, they propose no system to regulate how the timing of applications would be recognized. That could leave Brookline exposed to long and potentially costly “due process” lawsuits, claiming that results from its informal approach had been arbitrary and capricious.

Advisory Committee hostile to neighborhoods: Many of the 24 out of 30 Advisory Committee members at the evening meeting on May 10 seemed hostile toward Brookline neighborhoods. Because around 60 percent of Brookline voters opted to legalize marijuana, they claimed recreational marijuana shops could be sited without considering impacts on neighborhoods. Fisher Hill resident Clifford Brown of Precinct 14 led a charge for more marijuana revenue, while several others on the committee chimed in.

Critically examined, some claims about huge local revenues turn out to be fragrant BS when not flagrant lies. The budding marijuana industry had its friends at (the General) Court when Chapter 55 of the Acts of 2017 was being written: the ironically titled “act to ensure safe access to marijuana.” The access is particularly “safe” for marijuana dealers. Much of the potential local revenues come from so-called “community impact fees” that can be included in city and town contracts with marijuana dealers. However, when the revenue party is over after five (5) years, it’s done and gone–while all the problems the community may find continue indefinitely. According to Chapter 94G, Section 3(d) of the General Laws, as amended by the 2017 act:

“…a host community may include a community impact fee for the host community; provided, however, that the community impact fee shall be reasonably related to the costs imposed upon the municipality by the operation of the marijuana establishment or medical marijuana treatment center and shall not amount to more than 3 per cent of the gross sales of the marijuana establishment or medical marijuana treatment center or be effective for longer than 5 years….” [emphasis added]

Voters blindsided: Many of the Brookline voters who opted to legalize marijuana had been informed by the cautious, two-year process to zone and license medical marijuana. Medical marijuana dispensaries are not allowed in Local Business zones. The only current one is on Route 9. Hardly anybody would have expected “full speed ahead” and “open floodgates” for recreational marijuana–the approach from Brookline Planning, welcoming both marijuana shops and cafes to the Local Business zones threading through residential neighborhoods and near schools.

At Advisory Committee on May 10, vocal majorities rejected a motion to exclude marijuana shops from Local Business zones. They supported another motion to allow marijuana cafes. Hypocrites would continue to ban medical marijuana sales from Local Business zones, and they support a new ban on marijuana treatment centers. The outlook of hypocrites seems to be that medical marijuana would not yield as much in licensing fees and local taxes as recreational marijuana–so medical marijuana should be banned.

Those supporting neighborhoods by voting to exclude recreational marijuana shops from Local Business zones were committee members Harry Friedman, David-Marc Goldstein, Angela Hyatt, Alisa Jonas, Steve Kanes, Fred Levitan and Lee Selwyn. Thumbing noses at neighborhoods by voting the other way were Ben Birnbaum, Clifford Brown, Carol Caro, Lea Cohen, John Doggett, Janet Gelbart, Neil Gordon, Janice Kahn, Bobbie Knable, David Lescohier, Pamela Lodish, Shaari Mittel, Michael Sandman, Kim Smith, Charles Swartz and Christine Westphal. Committee chair Sean Lynn-Jones did not vote. Vice-chair Carla Benka and members Dennis Doughty, Kelly Hardebeck, Amy Hummel, Mariah Nobrega and Susan Roberts were absent.

Preventing needless burdens: The NETA medical marijuana dispensary on Route 9 is already in negotiations for one of the potential licenses as a recreational marijuana shop. Its success would leave only three licenses available. There are six more General Business zones to provide sites, leaving no need to burden neighborhoods near Local Business zones. A simple amendment to Article 17 at the 2018 Annual Town Meeting can keep recreational marijuana shops out of Local Business zones.

VOTED: To amend the motion under Article 17 so as to change “Use 29A, Storefront Marijuana Retailers” from “SP *1,2″ to “No” for L (local business) districts.

As of May 17, an equivalent motion is being proposed by Neil Wishinsky (chair of the Select Board) together with Betsy DeWitt, a Precinct 5 Town Meeting Member (TMM-5), Cynthia Drake (TMM-5), Scott Gladstone (TMM-16), Angela Hyatt (TMM-5) and Kate Silbaugh (TMM-1). After several years of experience with recreational marijuana shops in General Business zones, Brookline could review the results and see whether it might make sense to allow them in other places.

– Craig Bolon, Brookline, MA, May 12, 2018, updated May 17, 2018


Recreational marijuana information, Department of Planning and Community Development, Brookline, MA, 2018

Locations for marijuana shops, Department of Planning and Community Development, Brookline, MA, 2018

Advisory Committee, Town of Brookline, MA, 2018

Adult use of marijuana, 935 CMR 500, Massachusetts Code of Regulations, 2018

Public documents, Massachusetts Cannabis Control Commission, 2017-2018

Emma R. Murphy, Brookline’s NETA marijuana dispensary seeking recreational license, Brookline (MA) Tab, April 18, 2018

Business and functional requirements for the licensing, tracking and sale of adult-use marijuana (57 pp) Massachusetts Cannabis Control Commission, November, 2017

An act to ensure safe access to marijuana, Massachusetts Acts and Resolves of 2017, Chapter 55

Gintautas Dumcius, Brookline medical marijuana dispensary, operated by NETA, set to open in mid-January, Springfield (MA) Republican, December 24, 2015

Craig Bolon, Medical marijuana in Brookline: will there be a site?, Brookline Beacon, December 7, 2014

Pipeline fiascos: Mass. gas morass

In a brazen money-grab, two big U.S. pipeline companies proposed major new natural-gas pipelines across southern new England a few years ago. At 2.7 Bcf/d (billion cubic feet per day), their combined new capacity would have far exceeded the most aggressive estimate of domestic needs over 30 years, 1.1 Bcf/d.

Thinly disguised motives were to build channels to ship U.S. natural gas overseas as LNG (liquefied natural gas), mainly sent in ocean-going tankers to Europe. Natural gas is a finite and strategic U.S. resource that has greatly reduced emissions of toxic substances and greenhouse gases, as compared with coal-fired power, during our country’s transition to renewable energy.

The pipeline developments were poorly reported in New England. The Boston Globe, the region’s largest news medium, has never employed a competent energy reporter. It has lacked a dedicated reporter on environmental issues since Beth Daley left in 2011 for a Knight fellowship at Stanford, never to return. Its politics reporters are usually clueless about business. Its business reporters pretend to be clueless about politics.

Take the money and run: Greedy, hostile companies trying to ream out New England were Kinder Morgan of Houston, TX–successor to Enron, El Paso Pipeline and Tennessee Gas Pipeline–and Spectra Energy of Houston–successor to Texas Eastern Pipeline and Algonquin Gas Transmission. Spectra recently became a division of Enbridge, a tar-sands pipeline developer located in Calgary, Alberta, Canada.

The greedy, hostile companies were looking for a cheap date and found one. What could be cheaper than building pipelines with somebody else’s money? At somebody else’s risk? The 2014 Republican candidate for Massachusetts governor became an eager cheerleader. On Election Day, 2014, five Kinder Morgan executives forked over $2,500 to the campaign of Governor-elect Charles Duane Baker, Jr. Senior personnel at other interested companies and groups had kicked in earlier for “Charlie”–as he styled himself.

As Gov. “Charlie” likely knew at the time and surely should have known, the largest electric utilities in New England entertained partnerships with Spectra Energy. Eversource–successor to Boston Edison–and National Grid–successor to Northeast Utilities–considered commitments to Spectra’s “Access Northeast” project: a major, new gas pipeline along the route of the Algonquin pipeline opened in 1953.

Payback to business backers of Gov. “Charlie” was prompt. Angela O’Connor became chair of the Department of Public Utilities (DPU). She was a former president of New England Power Generators Association. Ron Gerwatowski became assistant secretary for energy. He had been a senior vice president at National Grid. Robert Hayden, a DPU lawyer who lost for Congress, running as a reactionary, became DPU commissioner.

Three months after Gov. “Charlie” took office, mastiffs at the Department of Energy Resources proposed to allow electricity distribution companies to invest in natural-gas pipelines, funded by surcharges levied against retail electricity rates. They should have known the proposal violated both letter and spirit of the 1997 Electric Utility Restructuring Act. [St. 1997, C. 164] That law took the distribution companies, including Boston Edison and Northeast Utilities, away from electricity generation they had mismanaged.

Three and a half months later, the Massachusetts Attorney General’s Office (AGO) notified the DPU that the proposal in DPU docket 15-37 appeared to violate the Electric Utility Restructuring Act. According to the AGO, the proposal also lacked “ratepayer protections such as competitive processes, transparency, avoidance of conflicts of interest and incentives to achieve the best results for ratepayers.” In other words, it encouraged greedy, hostile companies against which the Electric Utility Restructuring Act had been aimed.

Battling the elements, elements mostly win: An ox set to be gored by would-be money-grabbers was the operator of the Distrigas LNG terminal on the Everett waterfront. Since 1971, that facility has landed natural gas shipped from overseas to fuel what became the largest generating plant in New England. Lower costs for U.S. gas delivered from pipelines shut in three other New England LNG terminals, but the Everett terminal survived through enterprising services and favorable, long-term contracts.

More recently interconnected to major pipelines, the Everett terminal has supplied gas to pipeline customers during winter months when demands peak. Operator GDF Suez, reorganized as Engie in 2015, was incensed to find that Massachusetts might subsidize operations of pipeline competitors through regulated electricity rates and promptly filed a Massachusetts lawsuit: Engie Gas & LNG v. Department of Public Utilities. Other New England energy operators petitioned a federal agency to block similar state subsidy schemes.

Through an amicus filing, the AGO advised the Supreme Judicial Court that DPU support for pipeline subsidies using regulated electricity rates violated the Electric Utility Restructuring Act and went beyond DPU powers under the state’s general laws. The SJC assigned expedited reviews. In a decision of August, 2016, the SJC flatly reversed the DPU, closely following the attorney general’s reasoning.

Seeing that Massachusetts utilities were lining up behind the Specta project, Kinder Morgan had folded its cards before the SJC decision, shelving the “Northeast Energy Direct” project. Less than a year later, finding no customer base to support oversized capacity, Spectra shut down the “Access Northeast” project. Thus the administration of Gov. “Charlie” was left adrift–ready to run but lacking a race track.

Working mostly in the shadows, Gov. “Charlie” continues catering to business allies at the expense of voters and taxpayers. Recently the DPU shut down residential solar energy, again pandering to large utilities that would rather not be bothered with an intermittent, nondispatchable energy source.

– Craig Bolon, Brookline, MA, March 6, 2018


Residential solar suffers a major setback from latest DPU decision, Solar Energy Business Association of New England (Amherst, MA), January 12, 2018

Enzo DiMatteo, More banks bailing on tar sands pipelines, Now Magazine (Toronto), November 6, 2017

Herman K. Trabish, Massachusetts utilities take divergent approaches to grid modernization, Utility Dive (Washington, DC), September 6, 2017

Mary C. Serreze, Enbridge suspends Access Northeast natural gas pipeline plan, Springfield (MA) Republican, June 29, 2017

Jon Chesto, Lacking financing, utilities put $3 billion natural gas pipeline plan on hold, Boston Globe, June 29, 2017

Andy Metzger, State House News, Beaton ‘saddened’ by retribution charges as State House inquiry lingers, Worcester (MA) Sun, October 2, 2016

Richa Naidu and Sweta Singh, Enbridge buying Spectra in $28 billion deal, Reuters (UK), September 6, 2016

Lee Hansen, The Massachusetts natural-gas pipeline-expansion proposal, Connecticut General Assembly, August 29, 2016

Eugenia T. Gibbons, DPU approval for pipeline tax sought no more, but Spectra project still very much in the works, Mass. Energy Consumers Alliance (Boston), August 25, 2016

Engie Gas & LNG v. Department of Public Utilities, Massachusetts Supreme Judicial Court, Case nos. SJC-12051 and SJC-12052, August 17, 2016

Colin A. Young and Katie Lannan, State House News, Gov. Baker signs renewable energy bill, Quincy (MA) Patriot Ledger, August 8, 2016

Jon Chesto. SJC rejects Baker’s plan to impose fee for gas pipelines, Boston Globe, June 29, 2016

William Opalka, Generation owners seek to block EDC-pipeline deals, RTO Insider (Potomac, MD), June 27, 2016

Jon Chesto. Kinder Morgan shelves $3 billion pipeline project, Boston Globe, April 20, 2016

Mary C. Serreze, More than 90 Massachusetts lawmakers oppose ratepayers financing natural gas pipelines, Springfield (MA) Republican, April 11, 2016

Craig Altemose, Gov. Baker’s campaign contributions from energy executives, Huffington Post, April 7, 2016

Mary C. Serreze, Supreme Judicial Court to consider if Massachusetts electric utilities can buy pipeline capacity on behalf of power plants, Springfield (MA) Republican, April 5, 2016

Paul J. Hibbard and Craig P. Aubuchon (Analysis Group, Boston), Power System Reliability in New England, November, 2015 (prepared for Massachusetts Attorney General’s Office)

Rebecca Tapper, Healey slams Baker’s DPU in letter, Commonwealth, September 22, 2015

Craig Altemose, Emerging reality of gas infrastructure: destination export, Huffington Post, July 10, 2015

Initial comments of the attorney general, Department of Public Utilities docket 15-37, June 15, 2015

Shira Schoenberg, Seek to expand state’s natural gas capacity, Baker administration tells Department of Public Utilities, Springfield (MA) Republican, April 14, 2015

Natural gas delivery capacity for thermal load and electric generation, Massachusetts Department of Public Utilities, Docket 15-37 initial filing, April 2, 2015

Brian Dowling, National Grid joins $3 billion New England pipeline buildout, Hartford (CT) Courant, February 18, 2015

Mary C. Serreze, Region needs energy upgrades, including more natural gas pipeline capacity, says grid operator ISO New England, Springfield (MA) Republican, January 26, 2015

David Abel, Baker appoints controversial new energy team, Boston Globe, January 13, 2015

Matt Murphy, State House News, Beaton shakes up DPU team, hires former National Grid exec, Lowell (MA) Sun, January 12, 2015

David Abel, Environmentalists wary of Baker’s energy pick, Boston Globe, November 28, 2014

Shira Schoenberg, State Rep. Matt Beaton appointed energy secretary by Gov.-Elect Charlie Baker, Springfield (MA) Republican, November 17, 2014

Beth Daley, Senior reporter at New England Center for Investigative Reporting, Huffington Post, 2014

Thomas Overton, Everett LNG terminal at the crossroads, Power Magazine, July 2, 2013

An act relative to restructuring the electric utility industry, Massachusetts Acts of 1997, Chapter 164

Craig Bolon, New gas pipelines spurned: no subsidies from electricity rates, Brookline Beacon, August 17, 2016

Craig Bolon, Little need for new gas pipelines, Brookline Beacon, July 20, 2016

Craig Bolon, New England gas pipelines: attorney general weighs in, Brookline Beacon, November 1, 2015

Craig Bolon, New England gas pipelines: need versus greed, Brookline Beacon, August 29, 2015

The slow poison: environmental lead

Lead was shown to be a poison around 2,000 years ago by the Greek physician Pedianos Dioskorides, whose medical manual continued in use for more than 15 centuries. Although in ancient Rome and in some medieval settings lead was widely used, so far scholars of those eras have found little evidence that lead poisoning was recognized as more than an occupational hazard, mostly affecting mine and smelter workers.

The industrial revolution, starting in Europe during the late eighteenth century, brought a surge in the use of lead and a corresponding surge in lead poisoning. In England, a physician found the “Devonshire colic” was lead poisoning in 1767, caused by apples crushed into cider with lead implements. Otherwise, until the late twentieth century, the great majority of lead concerns continued to focus on workplace hazards.

Diagnoses: Frank symptoms of lead poisoning tend to set in at blood concentrations around 40 ug/dl (micrograms per deciliter) or 2 uM (micromolar). They become acute around 80 ug/dl or 4 uM. Before the 1960s, there were no reliable tests to measure such relatively small concentrations, less than a part per million. Testing environments were often lead-contaminated, especially after leaded gasoline began to be sold as motor-vehicle fuel in the 1920s. Test results might differ by factors of four or more. Diagnoses relied heavily on observations rather than on tests and almost always focused on acute symptoms.

Acute lead-poisoning symptoms include skin pallor, constipation, intestinal cramps, muscle spasms or paralysis, hallucinations and a “lead line” visible in the gums. Early tests included “stippling” of erythrocytes in blood, described in 1899, and opaque bands seen in X-rays near the ends of bones, described in 1943. By the time those tests showed problems, though, lead exposures had become profound.

A rare report about chronic effects of lead exposure described children who had apparently recovered from an acute episode of poisoning. Elizabeth Lord, a child psychologist at Boston Children’s Hospital from 1929 to 1942, followed 20 chidren for several years. She and Randolph Byers, a pediatrician at Children’s from 1925 to 1971, reported that all but one of those children showed learning disabilities persisting from infancy into early childhood, when they no longer had acute symptoms.

Automotive threats: The most significant and widespread source of lead for most modern environments in the United States was leaded gasoline, used as motor-vehicle fuel. Its chief sponsor in the 1920s was General Motors–as part of a struggle for market share with Ford and smaller competitors, with promises of “comfort, convenience, power and style” according to G.M. advertising.

In 1922, Charles F. Kettering, vice president for research, and Thomas Midgley, Jr., chief chemist, filed a patent application for tetraethyl lead as a gasoline additive to prevent engine knock and increase power (U.S. Patent 1,492,953 issued in 1926). The main alternative had been grain alcohol. The patent gave G.M. a major advantage: unlike an approach using alcohol, G.M. could control the market and reap monopoly profits.

Led by Kettering, General Motors entered into partnership with DuPont to produce trtraethyl lead and began a campaign of promoting so-called “Ethyl” gasoline and trying to discredit objections and alternatives. From the late 1920s through the early 1970s, nearly all U.S. automobiles and light trucks used leaded gasoline. Over about 80 years, more than seven million tons of lead entered U.S. environments from motor vehicles.

Measurements: In 1964. Sir Alan Moncrieff and others at Children’s Hospital in London tried to extend the Byers and Lord investigations, measuring blood lead in about 200 children. They used an optical absorbance technique, reporting substantial variations for repeat measurements. They found nearly all children evaluated as psychologically normal had blood lead under 40 ug/dl and those evaluated as retarded or disturbed had levels up to 70 ug/dl. They did not follow subjects over extended times.

In 1971, researchers at the Connecticut School of Medicine described a method using a then new technology of atomic absorption spectroscopy to improve sensitivity. They reported a coefficient of variation of 2.7 percent. A small cohort of children regarded as normal all had blood lead under 30 ug/dl. A larger cohort from a depressed area of Hartford had levels up to 150 ug/dl. The researchers did not follow subjects over extended times.

By 1979, a method using atomic absorption spectroscopy reproduced measurements of blood lead with a standard deviation of 2.3 ug/dl, reliable enough to support the CDC “level of concern” of 30 ug/dl (1.5 uM) at the time, although not reliable enough to apply much lower standards to individuals in medical settings. Technologies to measure lead in blood and tissues continued to improve, supporting medical diagnoses as well as stimulating research.

Harmful effects without acute poisoning: Concerns about harms from lead levels lower than those found with acute poisoning were confirmed in the late 1970s. Research organized by the late Herbert L. Needleman, a pediatrician and child psychiatrist at Boston Children’s Hospital, was reported in 1979. It focused on children whose lead exposures had been regarded as normal, using standards from the early 1970s.

Needleman saw signs of lasting harm to children as a young physician working at a community health clinic in Philadelphia. He suspected research would show differences in mental skills and social behaviors that grew with differences in lead exposure. Aware that his research was likely to be closely scrutinized, Needleman and his colleagues assembled a large cohort of subjects drawn from public school populations in Somerville and Chelsea, MA–avoiding, for example, subjects drawn from special schools or from medical clinics.

Because mental skills and social behaviors develop with many influences, Needleman and colleagues compiled background information about each subject that would make it possible to adjust results for a range of social and economic factors. Instead of relying on isolated measurements of blood lead that might not represent exposure history, they took measures of cumulative lead exposure from deciduous “baby” teeth that subjects had shed and provided.

After adjustment for social and economic factors, results in 1979 from Needleman and colleagues showed that as children’s lead exposures increased mental skills decreased and social behaviors became less adaptive. The researchers argued that prevailing standards for lead exposure were far too lax. Based mainly on acute poisoning, those standards ignored lead exposures that would harm children.

Lead from the air: Lead from gasoline, spread through the air, was the most serious and pervasive lead hazard in the United States between about 1930 and 1990. Although researchers and physicians had continued to sound alarms, lead was finally removed from U.S. motor-vehicle gasoline as a byproduct of other environmental concerns, not because of the alarms over lead poisonings and impairments.

In 1954 Arie J. Haagen-Smit, a Caltech chemistry professor, showed that clouds of smog, blighting the Los Angeles area for many years, were mostly produced by sunlight-stimulated reactions of hydrocarbon fumes from motor vehicles. Less frequent but occasionally severe smog attacks were becoming common in other locations. including mountain areas around Denver, CO. Public pressure grew to address the problems.

The Clean Air Act Amendments of 1970 (P.L. 88-206), a legacy from former Sen. Edmund S. Muskie (D, ME), required major reductions in motor-vehicle emissions by 1975. Research during the 1960s had shown that catalytic converters, made with ultrathin layers of precious metals, could achieve the results by oxidizing hydrocarbons in exhaust fumes. However, lead from gasoline would quickly foul those devices.

In 1970, General Motors began a campaign to remove lead from U.S. gasoline, a great irony. Decades earlier G.M. had promoted leaded gasoline, but by 1970 the company had sold its interests in tetraethyl lead and had filed patent applications for catalytic converters. In 1973, the U.S. Environmental Protection Agency issued regulations reducing, in stages, amounts of leaded gasoline allowed to be distributed in the U.S..

Removing lead from gasoline produced prompt declines in surveys of blood lead. By the middle 1970s, blood lead measurements had become fairly reliable, leading the U.S. Centers for Disease Control to add blood-lead testing in a second National Health and Nutrition Examination Survey (NHANES) for 1976-1980–by luck coinciding with impacts of EPA regulations reducing lead in gasoline–as well as in subsequent surveys.

U.S. lead in gasoline and average blood lead, 1976-1980

BloodLeadSurveys1976-1980

Source: U.S. Centers for Disease Control

Lowering total lead in U.S. gasoline from about 200,000 tons per year to about 100,000 tons per year (50 percent) paralleled a reduction in average blood lead measured for HNANES II subjects of all ages from about 16 ug/dl to about 10 ug/dl (40 percent). At the peak of production around 1970, leaded gasoline probably caused more than half the total blood-lead burden carried by U.S. residents.

Regulation: As authorized under the Clean Air Act Amendments of 1970, in 1974 the U.S. began requiring new cars to run on unleaded gasoline and requiring retail outlets to make unleaded gasoline available. After 1995, retail sale of leaded gasoline was banned. The long “phase-out” of lead in U.S. gasoline paralleled declines in measurements of blood lead, as recorded by national health surveys.

By 1989, unleaded gasoline accounted for 90 percent of motor-vehicle gasoline sold in the U.S. A statistical analysis performed that year, adjusting for several social and economic factors, found that the reduction of lead in gasoline had lowered average blood lead for U.S. residents by about half.

After gasoline lead, the next most common household lead hazards in the United States have long been paint containing lead pigments, lead in water pipes and fixtures, and lead in soils and dust. These threats are geographically concentrated, as compared with lead from gasoline. They occur mainly in older neighborhoods where leaded paint and lead water pipes were common, near current and former incinerators and coal-fired power-plants, and near current and former industries working with lead.

Before the 1970s, lead pigments were typical major components of paints. The federal Lead-based Paint Poisoning Prevention Act of 1971 (P.L. 91-695) and amendments in 1973 banned most retail sales of leaded paint after 1974. A series of federal laws and regulations starting that year, plus state regulations, gradually restricted uses of lead in water pipes and fixtures. The major federal laws were the following:
Safe Drinking Water Act of 1974 (P.L. 93-523)
Safe Drinking Water Act Amendments of 1986 (P.L. 99-339)
Safe Drinking Water Act Amendments of 1996 (P.L. 104-182)
Reduction of Lead in Drinking Water Act of 2011 (P.L. 111-380)

Effects on child development: Pursuing Needleman’s work into unexplored territory, in 2005 Bruce P. Lanphear and colleagues at Cincinnati Children’s Hospital and other institutions published data analysis for childhood harm from lead exposure–based on research by other groups. Results indicated major, lasting harm at blood levels below 10 ug/dl (0.5 uM). Lanphear and colleagues estimated IQ loss of about four points for blood lead increasing from 2-1/2 to 10 ug/dl.

Those results drew objections–particularly lack of adjustment for social and economic factors–but they provoked anxiety. The CDC “level of concern” for children’s blood lead had been lowered from 30 ug/dl in 1979 to 10 ug/dl. Echoing Needleman and colleagues from 1979, Lanphear and colleagues argued in 2005 that prevailing standards for lead exposure were still too lax.

Blood lead in U.S. children, 1997-2015

BloodLeadChildren1997-2015

Source: U.S. Centers for Disease Control

In 2008 Todd A. Jusko at the University of Washington and colleagues at several other institutions published a new study of about 200 school children in Rochester, NY, who had been followed for six years. Results adjusted for social and economic factors showed IQ loss of about five points for children with blood lead about 5 to 10 ug/dl, compared with children with blood lead about 2 to 5 ug/dl. Findings from Lanphear and colleagues in 2005 showing harmfui effects of blood lead below 10 ug/dl were thus confirmed.

One might have thought the Obama administration would step into the situation by funding research with much larger subject groups and conducting exhaustive reviews of standards. However, there was no new large-scale research, and it took 3-1/2 years for significant progress revising standards. In May, 2012, the Centers for Disease Control lowered a threshold for blood lead in young children to 5 ug/dl, renaming that a “reference level” instead of a “level of concern.”

As reported by the Boston Globe, in the final days of the Obama administration the EPA “sidestepped the issue of a specific new threshold for acceptable lead levels” of soils in urban environments. The agency provided only “general guidance.”

– Craig Bolon, Brookline, MA, February 26, 2018


Shelia Kaplan, EPA sidestepped decision to tighten standards for lead levels, leaving communities adrift, Boston Globe Media (Stat), March 28, 2017

Mary Tiemann, The Safe Drinking Water Act: a summary of the act and its major requirements, Congressional Research Service, 2017

Kathleen L. Caldwell et al., Measurement challenges at low blood lead levels, Pediatrics 140(2), August, 2017 (special article)

Steven D. Blatt, Howard L. Weinberger and Travis R. Hobart, Blood lead levels in young children: US, 2009-2015, Journal of Pediatrics 181:328-329, 2017

Mathy Stanislaus, Memorandum re updated scientific considerations for lead in soil cleanups, U.S. Environmental Protection Agency, December 22, 2016

James Grout, ed., Lead poisoning and Rome, Encyclopedia Romana (University of Chicago), 2016

Blood lead levels in U.S. children, 1997-2015, U.S. Centers for Disease Control and Prevention, 2016

Jianghong Liu et al., Impact of low blood-lead concentrations on IQ and school performance in Chinese children, Public Library of Science, PLoS One 8(5):1-8, 2013

Richard W. Hornung, Bruce P. Lanphear and Kim N. Dietrich, Age of greatest susceptibility to childhood lead exposure, Environmental Health Perspectives 117(8):1309-1312, 2009

Todd A. Jusko et al., Blood-lead concentrations less than 10 micrograms per deciliter and child intelligence at six years of age, Environmental Health Perspectives 116(2):243-248, 2008

David C. Bellinger, Very low lead exposures and children’s neurodevelopment, Current Opinion in Pediatrics 20(2):172–177, 2008

Claire B. Ernhart, Effects of lead on IQ in children, Environmental Health Perspectives 114(2):A85-A86, 2006

Bruce P. Lanphear et al., Low-level environmental lead exposure and children’s intellectual function: an international pooled analysis. Environmental Health Perspectives 113(7):894–899, 2005

David Rosner and Gerald Markowitz, Standing up to the lead industry: an interview with Herbert Needleman, Public Health Reports 120:330-337, 2005

William Koverik, Ethyl-leaded gasoline: how a classic occupational disease became an international public health disaster, International Journal of Occupational and Environmental Health 11(4):384-397, 2005

Judah Ginsberg, Alice Hamilton and the development of occupational medicine, American Chemical Society, 2002

Herbert L. Needleman, The removal of lead from gasoline, Environmental Research A84(1):20-35, 2000

Sven Hernberg, Lead poisoning in an historical perspective, American Journal of Industrial Medicine 38(3):244-254, 2000

Christian Warren, Brush with Death: A Social History of Lead Poisoning, Johns Hopkins University Press, 2000

Herbert L. Needleman, Childhood lead poisoning: the promise and abandonment of primary prevention, American Journal of Public Health 88(12):1871-1877, 1998

Jerome Nriagu, Clair Patterson and environmental lead poisoning, Environmental Research 72(2):71-78, 1998 (abstract)

Bill Kovarik, Charles F. Kettering and the 1921 discovery of tetraethyl lead, Society of Automotive Engineers, 1994

Legislative history of lead-based paint, U.S. Department of Housing and Urban Development, 1993

Preventing lead poisoning in young children, U.S. Department of Health and Human Services, 1991
See Fig. 2.5, Change in blood-lead levels in relation to a decline in use of leaded gasoline

Herbert L. Needleman and David Bellinger, The health effects of low-level exposure to lead, Annual Review of Public Health 12:111-140, 1991

Michael Weisskopf, Auto pollution debate has a ring of the past, Washington Post, March 28, 1990

Jerome O. Nriagu, The rise and fall of leaded gasoline, Science of the Total Environment 92:13-28, 1990

Joel Schwartz and Hugh Pitcher, The relationship between gasoline lead and blood lead in the United States, U.S. Journal of Official Statistics 5(4):421-431, 1989

David Rosner and Gerald Markowitz, A gift of God?: The public health controversy over leaded gasoline during the 1920s, American Journal of Public Health 75(4):344-352. 1985

Herbert L. Needleman and Philip J. Landrigan, The health effects of low-level exposure to lead, Annual Review of Public Health 2:277-298, 1981

Herbert L. Needleman et al., Deficits in psychologic and classroom performance of children with elevated dentine lead levels, New England Journal of Medicine 300(13):689-695, 1979

Carole Schmidt, Lead determination in blood by atomic absorption spectroscopy, Journal of the American Industrial Hygiene Association 40(12):1085-1090, 1979

National Research Council, Airborne Lead in Perspective, U.S. National Academy of Sciences, 1972

Thomas F. Murphy, Shozo Nomoto, and William Sunderman, Jr., Measurements of blood lead by atomic absorption spectrometry, Annals of Clinical Laboratory Science 1(1):57-63, 1971

Richard M.S. McConaghey, Sir George Baker and the Devonshire colic, Medical History 11(4):345-360, 1967

Alan A. Moncrieff et al., Lead poisoning in children, Archives of Diseases in Childhood (UK) 39:1-13, 1964

J.E. Bradley et al., The incidence of abnormal blood levels of lead in a metropolitan pediatric clinic, Journal of Pediatrics 49(1):1-6, 1956

Arie J. Haagen-Smit, The control of air pollution in Los Angeles, Engineering and Science 18(3):11-16 (California Institute of Technology), 1954

Randolph K. Byers and Elizabeth E. Lord, Late effects of lead poisoning on mental development, American Journal of Diseases of Children 66(5):471-494, 1943

Alice Hamilton, Plumbism in the industries of the Middle West, Ohio Public Health Journal 2(1):3-11, 1912 (then the Monthly Bulletin of the Ohio State Board of Health)

W. Dowling Prendergast, The classification of the symptoms of lead poisoning, British Medical Journal 1(2576):1164-1168, 1910

George Baker, An essay concerning the cause of the endemial colic of Devonshire, J. Hughs (UK), 1767

London high-rise fire: tragedy of the commoners

A catastrophic fire June 14, 2017, at Grenfell Tower, a London high-rise public housing building–killing at least 80 occupants–has developed into a tragedy of the commoners. It is not being visited on British elites. In its aftermath, officials of the current, Tory government spared no effort–to offload blame. Suspicions pointed at building materials that quickly spread flames up the outside of the building.

Philip Hammond, the famously arrogant Chancellor of the Exchequer, tried to claim that materials used in a recent renovation of Grenfell Tower had been banned under the British building code. He was promptly refuted by reporter David D. Kirkpatrick, writing in the New York Times.

The officials patched together a national emergency action, ordering managers of public housing that had used similar building materials to submit samples for so-called “fire safety” testing–but not managers of private housing. Without waiting for results or advice, the Camden council, in north London, ordered evacuations of five high-rise public housing buildings that had been renovated using such materials.

A testing mystery: Building contractors and materials manufacturers had stated that their practices met standards of the British building code, which include standards for fire resistance. A few days after the catastrophe, however, Tory officials said some samples of materials they received had failed “fire safety” testing–tending to offload blame. At ten days after the catastrophe, the officials disclosed that all 60 samples from public housing tested to date had failed. How could that be?

Nothing from mainstream British news sites explored the obvious conflict. One story in the Guardian said recent tests “lack transparency,” but it stopped there. Absent gross fraud, the “fire safety” tests hastily arranged by officials of the Tory government somehow had to differ from tests claimed to have been performed by manufacturers and builders under the British building code.

The current building code allows two approaches. Individual materials can be tested for “fire spread,” using British Standard BS 476 procedures and regulations. Otherwise, a large sample of an assembled “cladding system” can be tested using British Standard BS 8414 procedures and classified under British Research Establishment BRE 135 regulations.

Manufacturers usually test for “fire spread” using BS 476, or a European equivalent, and builders usually seek materials so tested. The alternative via BS 8414 and BRE 135, or European equivalents, is much more costly to test. Moreover, that approach would limit application to a specific “cladding system” design and to its choices for multiple materials and fastenings.

Potentially flammable materials used on the exterior of Grenfell Tower were Celotex RS5000 insulation, 6 inches thick, and Reynobond PE rainshield, 1/8 inch thick–both manufactured in Europe. Both those materials burned in the catastrophe, but most news reports ignored the rigid polyisocyanurate foam insulation and focused only on the rainshield. It consists of a solid polyethylene core and two thin aluminum outer layers.

If Reynobond PE rainshield gets hot–only around 300 F–highly flammable polyethylene in the core will melt. Liquid might leak from an edge and ignite, or an entire metal layer might release, exposing polyethylene to fire. However, BS 476 test procedures do not create such conditions. They subject a patch in the middle of a rainshield panel to a small flame for a minute. The outer metal layer does not burn, and the brief heating does not melt the whole core and release the metal, so such a panel of rainshield material passes that test.

Mystery resolved: At some time on Monday, July 3, according to automatic logging by other sites, British Research Establishment (BRE) staff, who had been performing emergency “fire safety” testing for Tory government officials, added notes to one of their Web pages describing what they were doing. BRE staff admitted they had used rogue “screening tests” to measure “gross heat of combustion” of materials, not a standard test–such as International Standards Organization ISO 1716–and not a test for “fire spread” or for “combustibility.”

According to the BRE statement, “procedures set out in the [ISO] standard [for heat of combustion] have not been followed.” BRE staff did not test for “combustibility” either, as Tory officials have repeatedly claimed–that is, whether a material will catch fire, under some specified condition. Instead, BRE staff have been scraping out core fragments from samples of rainshield material and then measuring how much heat will be produced when the fragments are forced to burn in an artificial environment of pure oxygen.

Now it is clear why tests according to the British building code might pass but tests recently reported by Tory officials might fail. They are different tests. Rogue tests being carried out by the BRE staff do not measure whether materials will catch fire under controlled conditions. Instead they measure how much heat is produced when core fragments scraped from the materials are forced to burn.

The rogue tests, of course, have not been systematically validated against actual risks of building fires. Such a process would involve extended experiments, analysis, documentation and review. If compared, for example, against longstanding, carefully developed BS 8414 procedures and BRE 135 regulations, rogue tests might either overestimate or underestimate fire hazards from practical situations.

Other options: Little noticed by the public, some building materials apparently similar to those used at Grenfell Tower have passed the rogue test ordered by Tory government officials and conducted by BRE staff. The headline for an article on the BBC News site did not help, saying, “Three hospitals fail fire safety.” The text, however, claimed that “cladding at 11 sites passed the checks, while the other 19 sites which flagged up potential fire safety issues have been told they do not need to take further action.”

The Tory government still has not ordered testing of private housing or commercial buildings, but Health Secretary Jeremy Hunt started a national emergency action to test hospital buildings. When reported by BBC News, 30 had passed the rogue test or been exempted, and only three had failed. Apparently British hospital renovations were more cautious in some ways than those performed by public housing authorities.

Three main grades of metal-clad rainshield materials have been marketed in Europe for about 25 years. They are often designated “PE” (polyethylene core), “FR” (fire-retardant core) and “A2″ (limited combustibility core)–the last one a classification from the European Normative EN 13501 fire-resistance standard.

The Alucobond company of Switzerland introduced an “A2″ product in the early 1990s. Like most other such products, its core is nonflammable mineral wool plus a few percent by weight of polymer binder. At very high temperatures the polymer will char, but flames will not spread far. This type of product is more expensive and more difficult to install than other composite rainshield products. The distribution of results obtained by BRE staff suggest that “A2″ products may pass their rogue test, while “PE” and “FR” products may fail.

Lessons learned and unlearned: Some building renovation managers apparently took more cautious approaches than others. However, the Tory government’s attempt to shift blame for the Grenfell Tower catastrophe onto project designers and managers and onto materials manufacturers amounts to a scam.

The core of the problem has been grossly inadequate building code regulations–allowing an irresponsible alternative to carefully developed fire resistance standards. That is compounded by lack of fire suppression measures, particularly requiring fire sprinklers in high-rise buildings.

The British government had ample, local warning about the potential for a catastrophe. In 2009, the Lakanal House fire in Camberwell, similar in many respects, killed three women and three children. Nothing of much significance was ever done to prevent another such disaster.

The current, Tory government nominated Sir Ken Knight, who compiled a report on the Lakanal fire, to head a panel that is to examine “safety actions” in the aftermath of the Grenfell Tower catastrophe. Sir Ken Knight had advised against regulations requiring fire sprinklers in high-rise buildings.

Former Tory housing minister Gavin Barwell told the House of Commons in October, 2016, that the British Building Regulations for fire safety would be reviewed in response to the Lakanal House disaster, but he did nothing. His punishment, after being defeated for re-election, has been to serve as chief of staff to the prime minister, Theresa May.

– Craig Bolon, Brookline, MA, July 6, 2017


Three hospitals fail fire safety checks, BBC News (UK), July 4, 2017

Grenfell Tower fire: ACM cladding testing, British Research Establishment (BRE), July 3, 2017

Richard Hartley-Parkinson, Man overseeing Grenfell disaster previously advised against fitting sprinklers, London Metro, June 28, 2017

Robert Booth, Tower cladding tests after Grenfell fire lack transparency, say experts, Manchester Guardian (UK), June 26, 2017

Sylvia Hui, Associated Press, All samples from high-rise towers in UK fail fire safety tests, Chicago Tribune, June 25, 2017

Caroline Mortimer, Grenfell response: number of tower blocks failing fire tests rises to 60, London Independent, June 25, 2017

Shehab Khan, ‘Hundreds’ died in Grenfell Tower fire, says shadow Home Secretary Diane Abbott, London Independent, June 24, 2017

David D. Kirkpatrick, Danny Hakim and James Glanz, Why Grenfell Tower burned: regulators put cost before safety, New York Times, June 24, 2017

Danica Kirka, Associated Press, London council evacuates residents amid fire safety concerns, WTOP (Washington, DC), June 23, 2017

Lucy Pasha-Robinson, Tens of thousands of people could be living in lethal tower blocks, tests reveal, London Independent, June 22, 2017

Jack Simpson, Fire experts slam ‘outdated’ Building Regulations following Grenfell, Construction News (UK), June 21, 2017

David D. Kirkpatrick, UK officials said cladding on tower burned in London was banned, but it wasn’t, New York Times, June 19, 2017

Tom Peck, Grenfell Tower cladding is banned in UK, Philip Hammond says, London Independent, June 17, 2017

Dan Bilefsky, London fire death toll rises to 17, New York Times, June 15, 2017

Robert Booth, Ian Sample, David Pegg and Holly Watt, Experts warned government against cladding material used on Grenfell, Manchester Guardian (UK), June 15, 2017

Gregory Katz and Danica Kirka, Associated Press, Death toll rises to 12 in London apartment building inferno, WTOP (Washington, DC), June 14, 2017

ISO 1716:2010, Determination of the gross heat of combustion, International Standards Organization (Geneva, Switzerland), 2017

Resistance to fire: EN 13501, the European standard, Odenwald Faserplattenwerk (Amorbach, Germany), 2017

EN 13501-1: Fire test to building material, Ecosafene Safety and Testing World (Xiamen, China), 2017

BS 476-7: Fire test to building material, Ecosafene Safety and Testing World (Xiamen, China), 2017

Prashant Thakkar, 1992 market introduction of Alucobond A2, Glazing Shopee (Vadodara, India), 2017

Sara Colwell, Illustrated guide to British fire safety testing and standards, British Research Establishment (BRE), 2014

Fire safety: Approved Document B, The Building Regulations 2010, [British] National Archives (effective April, 2007, as amended through 2013)

Craig Bolon, High-rise fire in London: needless catastrophe, Brookline Beacon, June 21, 2017

High-rise fire in London: needless catastrophe

Around 1 am local time Wednesday morning, June 14, a kitchen fire began in a London high-rise public housing building. It was reported promptly to 999, London emergency services. The Grenfell Tower structure in west London–built mainly with precast concrete, steel and glass–should easily have resisted a kitchen fire long enough for the London Fire Brigade to arrive and extinguish it, but instead the fire spread.

Fire escaped through a window on a lower floor of the building, ignited newly installed, flammable materials on the exterior and quickly spread upwards. By the time the London Fire Brigade arrived, only a few minutes after the emergency call, the fire had already climbed well up the building of 24 floors, and it was also spreading sideways.

London high-rise fire, June 14, 2017, about 2 am

GrenfellTowerFireLondon20170614
Source: London emergency services

Desperate efforts: The London Fire Brigade was able to extinguish the kitchen fire, but its efforts against the massive fire on the outside of the high-rise building proved futile. By the time water flowed from aerial pumpers, the fire had spread onto two or more sides of Grenfell Tower and had reached the upper floors. As shown in photos, water streams rose only about halfway up one side of the building and a third of the way up a second. Apparently the London Fire Brigade could not access other sides when it mattered most.

The intense fire warped or melted new, thin aluminum window frames, and window panes fell out, allowing the fire inside. The building never had sprinklers. Contents of nearly all dwellings above the eighth floor and some below eventually ignited, further spreading fire from window to window. Interior fires became mostly air-limited and very smoky. Photos show interior fires burning at least 12 hours, until there were no more dwelling contents left to burn.

Inside Grenfell Tower, survivors say chaos reigned. In some areas, fire alarms did not sound or could not be heard. Emergency lighting was dim. Residents had been warned to stay inside dwellings in case of fire, but many ran through smoky corridors and down the single, narrow stairway, colliding with firefighters rushing upward. Most Grenfell Tower residents survived, but many who followed instructions became trapped.

While the lowest floors of Grenfell Tower suffered water damage, photos show at least three-quarters of the building incinerated. Five days after the fire began, London police stated that at least 79 people had perished. News reports speculated that final numbers could be much higher. Parts of the structure had been found unstable, so that dogs had been sent in to search for remains.

Causes of the catastrophe: The Grenfell Tower fire of 2017 did not compare to property damage from the Great London Fire of 1666, but the death toll may have been higher. The British prime minister has ordered a public inquiry directed by a judge. While that is likely to take at least months, contributing factors are already known.

It was clear from the outset that materials installed in a recent renovation of Grenfell Tower spread fire outside the building. High-rise structures were traditionally built with fireproof materials: typically concrete, steel, brick and glass. The renovation clad the building in a thick layer of insulation and a thin layer of rainshield. Both the added layers contained flammable materials, and both apparently burned.

Early news reports mentioned several different materials used in renovating Grenfell Tower, including highly flammable polystyrene and polyurethane. Discovery of specifications narrowed the list to Celotex RS5000 insulation, 6 inches thick, and Reynobond PE rainshield, 1/8 inch thick–both manufactured in Europe. The Celotex product is rigid polyisocyanurate foam, fire resistant but not fireproof. The Reynobond PE product has a solid polyethylene core, easily melted and readily flammable.

For a short time, Philip Hammond, the famously arrogant Chancellor of the Exchequer since July, 2016, muddied waters with a claim that Grenfell Tower renovation materials were banned under British building codes. If so, that might shift liability away from the UK government and toward renovation contractors. Writing in the New York Times, reporter David D. Kirkpatrick soon showed Hammond misinformed or lying.

In recent years, flammable materials have been allowed on the exteriors of high-rise buildings in several places, including France, Britain, Dubai, Singapore, South Korea and Victoria, Australia. That has resulted in a series of so-called “cladding fires” on the outsides of high-rise buildings. Until the Grenfell Tower catastrophe, the most widely publicized of those fires occurred in Dubai.

The worst of at least five recent high-rise cladding fires in Dubai heavily damaged the Address hotel on New Year’s Eve, 2015, the Sulafa tower on July 20, 2016, and the ironically named Torch Tower on April 2, 2017. The disasters resulted in several injuries but no deaths. In response, Dubai reportedly tightened building requirements, with some previously installed building materials needing to be replaced.

Avoiding another catastrophe: A cladding fire in Melbourne, Australia on November 25, 2014, showed how multiple fire-safety measures can avoid catastrophes. Lacrosse Docklands is a 23-story apartment building similar to Grenfell Tower. The exterior had been clad with similar flammable materials. A cigarette left in a plastic dish on a balcony ignited the dish and the wood table under it, starting a fire.

The burning wood table ignited an adjacent area of rainshield material, starting the cladding fire. The rainshield on this building was known by the trade name Alucobest. Like the Reynobond PE product, the standard Alucobest product has a readily flammable solid polyethylene core. As with the Grenfell Tower fire, the Lacrosse Docklands fire warped and melted aluminum window frames, and window panes fell out, allowing the fire to enter dwellings.

That is where similarities end and differences begin. Unlike Grenfell Tower, the insulation behind the rainshield at Lacrosse Docklands in Melbourne was non-combustible, not merely fire resistant: glass wool instead of polyisocyanurate foam. That probably slowed the speed of fire spreading, and it fed less fuel to the fire. The design of Lacrosse Docklands features bays of dwellings separated by protruding fins. The fire in Melbourne rose rapidly up one bay but did not jump to adjacent bays.

Unlike Grenfell Tower in London, Lacrosse Docklands in Melbourne had sprinklers–likely the most important difference. They worked as intended and kept fire from spreading inside dwellings, even though fire had been able to enter through damaged and open windows. The intensity of the fire did not increase through igniting dwelling contents, and fire did not spread inside the Melbourne building.

Unlike the London Fire Brigade performance, water flows from aerial pumpers in Melbourne reached to the top of the Lacrosse Docklands building and extinguished the cladding fire. There was substantial property damage in Melbourne, but there were no deaths or major injuries. Multiple safety measures combined to prevent a disaster from becoming a catastrophe.

– Craig Bolon, Brookline, MA, June 21, 2017


A visual guide to what happened at Grenfell Tower, BBC News, June 20, 2017

Danica Kirka and Frank Griffiths, Associated Press, 79 now believed to have died in London high-rise fire, ABC News, June 19, 2017

David D. Kirkpatrick, UK officials said cladding on tower burned in London was banned, but it wasn’t, New York Times, June 19, 2017

Justin Pritchrd, Associated Press, Insulating skin on high-rises has fueled fires before London, ABC News, June 18, 2017

Tom Peck, Grenfell Tower cladding is banned in UK, Philip Hammond says, London Independent, June 17, 2017

Danica Kirka, Associated Press, Anger erupts over possible flaws at burned London tower, WTOP (Washington, DC), June 16, 2017

Aaron Morby, Twenty London high-rises with Grenfell cladding system, Construction Enquirer (UK), June 16, 2017

Tom Bergin, Maker of panels at London tower cautioned on high-rise fire risk, Reuters (UK), June 16, 2017

Hayley Dixon, Sarah Knapton, Steven Swinford, Leon Watson and Danny Boyle, Grief gives way to anger as Grenfell Tower residents demand answers over string of failures, London Telegraph, June 15, 2017

Dan Bilefsky, London fire death toll rises to 17, New York Times, June 15, 2017

Hannah Lucinda Smith, The Grenfell Tower blaze was a disaster waiting to happen, The Spectator (UK), June 15, 2017

Benedict Brook and Rose Brennan, Melbourne skyscraper fire, caused by cladding, may have been a warning for London, News Corp Australia, June 15, 2017

Calla Wahlquist, Cladding in London high-rise fire also blamed for 2014 Melbourne blaze, Manchester Guardian (UK), June 15, 2017

Henry Bodkin, Fire safety expert had warned government advisors ‘entirely avoidable’ deaths would occur at structures like Grenfell Tower, London Telegraph, June 14, 2017

Jon Gambrell, Fire hits Dubai high-rise complex near world’s tallest tower, Associated Press, April 2, 2017

Unattributed, AFP, Dubai toughens fire rules after tower blazes, Business Times, January 22, 2017

Unattributed, Dubai fire: blaze engulfs more than 30 floors of Sulafa Tower, BBC News, July 20, 2016

Lacrosse Docklands fire: post-incident analysis report, Metropolitan Fire and Emergency Services Board, Victoria, Australia, April 27, 2015 (5 MB)

Andrew Moseman, Huge fire engulfs Dubai skyscraper full of apartments, Popular Mechanics, February 20, 2015

Power-plant toxics: no longer a political trinket

By appointing Scott Pruitt, former Oklahoma attorney general, as administrator of the U.S. Environmental Protection Agency, the cockroach President signaled another warp in the long struggle against emissions from U.S. power-plants. During his former service, Pruitt garnered large political contributions from managers in poultry industries, who wanted to scuttle rules for waste disposal at chicken farms. Pandering to their causes against public interests, Pruitt became Chief Chicken Shit of the Southwest.

If the cockroach were to fall to a heart attack tomorrow, the environment could become even more threatened. Vice President Pence was a promoter of Pruitt. Writing in the Huffington Post, John Halstead described Pence as an environmental racist. While Indiana governor, Pence responded quickly to lead found in the water supply for Greentown, a community that is 97 percent white. He ignored problems in East Chicago, where a majority-black neighborhood suffers from the worst soil concentration of lead ever reported in the U.S.

Industrial waste: At an auto-industry event on March 15, 2017, the cockroach promised, “My administration will work tirelessly to eliminate…industry-killing regulations.” The context was fuel efficiency. The cockroach promoted lower efficiency: that is, more fuel waste, more emissions and a retreat from U.S. energy independence. Some applause came from locals but not from the Detroit Free Press, whose business reporter said the push would undermine “innovation we need to see more of in the Michigan economy.”

On March 28, the cockroach President staged a fantasy act with coal miners in the Oval Office, signing Executive Order 19, an unhinged and antisocial maneuver. It directs that federal “agencies immediately review…regulations that potentially burden…use of domestically produced energy…[where] ‘burden’ means significant costs [for]…utilization…of energy resources.” Climate issues got nearly all the media attention then, but regulations on toxic power-plant emissions also loomed as likely targets.

Pruitt was Oklahoma’s supervising counsel for White Stallion Energy v. EPA, the DC Appeals Court case on toxic power-plant emissions that led to Michigan v. EPA, decided in 2015 by the Supreme Court. That proved to be the last attack on the public interest from clever, antisocial former Justice Scalia, who had managed to bend the ear of Justice Kennedy. Against precedent, Scalia’s opinion said the EPA had to consider costs when regulating toxic power-plant emissions.

According to Coral Davenport, writing in the New York Times, “Pruitt, [then] attorney general of Oklahoma…sued the EPA at least 14 times [in only six years], often in concert with the nation’s largest fossil-fuel companies, to block major environmental regulations.” Fortunately for the environment, he was rarely as successful as he was in Michigan v. EPA, and fortunately that case will have little direct impact.

Contrasts: Residents of the Boston area for more than 50 years will likely remember days when smoke darkened the sky. Before the 1960s there were few air quality rules. Power-plants, factories, offices and homes belched smoke from coal, oil and wastes. “Efficient” cars meant ones getting more than about 12 miles to the gallon. Cities, towns, institutions and businesses burned trash in open incinerators.

Smoke-blackened Washington Street, Boston, 1915

SmokeBlackenedWashingtonStreet1915
Source: Boston Public Library Archives

In November, 2013, a survey of large U.S. cities found that “Boston tops the list as the city with the cleanest air and boasts the lowest Air Quality Index score possible. Boston’s accessible public transportation system…the Air Pollution Control Commission…[and] annual precipitation…are good indicators that Bostonians are breathing easy.” Quite a change from the grimy Boston environment between about 50 and 150 years earlier.

Progress and mischief: Before 1970, most efforts to reduce air pollution were state initiatives. The federal 1970 Clean Air Act amendments [Public Law 88-206] became a watershed, aiming at uniform requirements that states would refine and enforce rather than initiate. The 1970 law authorized national “air quality” standards and regional “performance” standards for pollution emitters.

Coal has long been the most harmful fuel. In recent years, activists became concerned that it produces the most carbon dioxide. However, there are longstanding concerns over emissions of sulfur dioxide, mercury, arsenic and particles of toxic metals from burning coal. The U.S. EPA moved extremely slowly to regulate sulfur dioxide, finally spurred by 1990 Clear Air Act amendments [Public Law 91-604] requiring actions to combat acid rain. Until the Obama era, the agency failed to restrict other toxic components of coal smoke.

The Walker Bush administration tried to gut regulation of power-plant emissions through its proposed Clean Air Mercury Rule and Delisting Rule. The music stopped when the DC Appeals Court denounced those two shabby attempts in its decision for New Jersey v. EPA. [517 F.3d 574, 2008] A dramatic sequence of seven federal court rulings overturned much of the environmental mischief oozing from the Walker Bush administration.

*** New York v. Environmental Protection Agency (2005) vacated the New Source Review Rule.
*** New York v. Environmental Protection Agency (2006) vacated the Equipment Replacement Provision Rule.
*** Massachusetts v. Environmental Protection Agency (2007) vacated the refusal to regulate carbon dioxide.
*** Environmental Defense, v. Duke Energy (2007) affirmed the Prevention of Significant Deterioration Rule.
*** New Jersey v. Environmental Protection Agency (2008) vacated the Clean Air Mercury Rule.
*** North Carolina v. Environmental Protection Agency (2008) vacated the Clean Air Interstate Rule.
*** Sierra Club v. Environmental Protection Agency (2008) vacated 2006 Clean Air Act emission limits.

Obama-era progress: The Obama administrations issued two major air-quality regulations: the Mercury and Air Toxics Standards (MATS) in 2011 and the Clean Power Plan in 2015. When reporting about lawsuits attacking them, news media sometimes failed to distinguish the two regulations clearly. MATS is directed toward the toxic pollutants that have been longstanding concerns of the U.S. EPA. The Clean Power Plan is a climate initiative, intended to regulate carbon dioxide and other greenhouse-gas emissions.

The cockroach President was able to suspend the Clean Power Plan, but the great majority of fossil-fueled power is now produced by plants that comply with MATS. The U.S. Energy Information Administration reported that as of April, 2016, nearly all coal-fired plants had installed equipment. According to Paul Ciampoli, writing in Power Plant Daily, plants representing about 2 GW out of about 276 GW total–less than a percent of industry capacity–were still operating on MATS waivers. The cockroach mashed by feet on the ground.

Good news for the U.S. is that economics blocked obscene politics. When power-plant emissions are filtered enough to bring down ordinary chemical pollution, costs of coal-fired power rise too high for new plants and are shuttering many old ones. Brayton Point in Somerset, MA–once among the filthiest in New England–was outfitted with pollution controls. Recently it has operated less than a quarter of the time, and it is scheduled to close permanently in May, 2017–no longer competitive.

Power from natural gas-fired plants, not government policy, has been the main agent evicting coal-fired power. In plains areas of the Middle West and in giant river valleys of the Pacific Northwest, wind turbines also provide advantages along with very low emissions. There, where winds tend to be stronger and steadier than in other places and where installation costs tend to be lower, one major form of renewable energy no longer needs new subsidies to prosper. Again, the cockroach mashed by feet on the ground.

– Craig Bolon, Brookline, MA, May 16, 2017


Juliet Eilperin and Brady Dennis, Court freezes Clean Power Plan lawsuit, signaling likely end to Obama’s signature climate policy, Washington Post, April 28, 2017

Sonal Patel, Trump’s EPA signals changes for power-plant mercury rule, Power Magazine, April 20, 2017

Jonathan Mattise, Associated Press, Federal utility CEO: coal plants not reopening under Trump, WTOP (Washington, DC), April 18, 2017

Michael Biesecker and Sam Hananel, Associated Press, EPA seeks to derail cleanup of coal power-plant pollution, WTOP (Washington, DC), April 18, 2017

Eric Lipton, Ben Protess and Andrew W. Lehren, With Trump appointees, a raft of potential conflicts and no transparency, New York Times, April 15, 2017

Coral Davenport, Coal is on the way out at electric utilities, no matter what Trump says, New York Times, April 5, 2017

Emily Hammond, President Trump’s executive order on “energy independence,” Vox Media (Washington, DC), March 29, 2017

On promoting energy independence and economic growth, Executive order 19, White House, March 28, 2017

Matthew Daly and Jill Colvin, Associated Press, Trump takes aim at Obama’s efforts to curb global warming, Boston Globe, March 27, 2017

Jill Colvin, Associated Press, Trump announces challenge to Obama-era fuel standards, Boston Globe, March 15, 2017

John Gallagher, Why Trump’s rollback of tailpipe emissions rules is a bad idea, Detroit Free Press, March 15, 2017

John Flesher, Matthew Daly and Catherine Lucey, Associated Press, Climate and other programs get deep cuts in EPA budget proposal, WTOP (Washington, DC), March 3, 2017

Coral Davenport, EPA workers try to block Pruitt in show of defiance, New York Times, February 16, 2017

Valerie Volcovici and Timothy Gardner, Scott Pruitt, EPA designee, expresses doubts on climate, defends oil industry funding, Reuters (UK), January 18, 2017

Alex Formuzis, EPA pick Pruitt stymied cleanup of scenic river fouled by factory chicken-farm waste, Environmental Working Group (Washington, DC), January 14, 2017

John Halstead, Mike Pence’s environmental racism, Huffington Post (Washington, DC), January 14, 2017

Eric Lipton and Coral Davenport, Scott Pruitt, Trump’s EPA pick, backed industry donors over regulators, New York Times, January 14, 2017

Inside the Clean Air Act, US Legal (Jackson, MS), 2017

Edward Wong, Trump calls climate change a Chinese hoax, New York Times, November 19, 2016

Ryan H. Wiser and Mark Bolinger, Wind technologies market report, Lawrence Berkeley Laboratory, August, 2016

EIA electricity generator data show power industry response to EPA mercury limits, U.S. Energy Information Administration, July 7, 2016

U.S. Environmental Protection Agency, Consideration of cost in the “appropriate and necessary” finding for the Mercury and Air Toxics Standards for power plants, 81 FR 24420-24452, April 25, 2016

Keith Goldberg, High court won’t halt EPA mercury rule, Law360 (New York, NY), March 3, 2016

Laura Barron-Lopez, Supreme Court stays Obama’s carbon emissions plan, Huffington Post, February 9, 2016

Elena Craft, Graham McCahan and Mandy Warner, Mercury and Air Toxics Standards, Environmental Defense Fund (New York, NY), 2016

Rachel Cleetus, Steve Clemmer, Jeff Deyette, Brenda Ekwurzel, Julie McNamara, Jeremy Richardson and John Rogers, The Clean Power Plan: a climate game-changer, Union of Concerned Scientists, 2016

Michael B. Gerrard, Supreme Court ruling on mercury shows little deference to EPA, New York Law Journal 254(49), September 10, 2015

Michigan v. EPA, case no. 2014-46, U.S. Supreme Court, 576 U.S. (2015) June 29, 2015

Samuel Worth, Why EPA should have prohibited cost considerations in White Stallion, Boston College Environmental Affairs Law Review 42(2):593-606, April 10, 2015

White Stallion Energy v. Environmental Protection Agency, case no. 2012-1100, U.S. Court of Appeals for the DC Circuit, 748 F.3d 1222, April 15, 2014

Erin Ailworth, Owner reaffirms 2017 closing of Brayton Point plant, Boston Globe, January 27, 2014

Tracey Jones, Ten cities with the best air quality, CreditDonkey (Pasadena, CA), 2013

Nicholas Morales, New Jersey v. Environmental Protection Agency, Harvard Environmental Law Review 33(1):263-282, 2009

New Jersey v. Environmental Protection Agency, case no. 2005-1097, U.S. Court of Appeals for the DC Circuit, 517 F.3d 574, February 8, 2008

George A. Gonzales, The Politics of Air Pollution, State University of New York Press, 2005

James J. MacKenzie. Boston’s sufferance of sulfur dioxide, Science 172(3985):792-793, 1971

Craig Bolon, New England energy: wobbly progress, Brookline Beacon, January 12, 2015

Craig Bolon, Fall town meeting: pipe dreams, Brookline Beacon, December 4, 2014

Craig Bolon, Coal-fired and oil-fired electricity in New England, Energy and Environment, October 17, 2013

Craig Bolon, Tangle of air pollution regulations affecting energy, Energy and Environment, 2008

Bermuda explosion: medical racketeering

On February 14 of this year, Bermuda filed a lawsuit in the Federal District Court for Massachusetts, seeking damages and legal costs from the Lahey medical organization of Burlington, MA. Bermuda claims that Lahey, aided by Dr. Ewart Brown, former prime minister of Bermuda, cost the country millions of dollars by engaging in a “pattern of racketeering activity.”

Bermuda v. Lahey is likely to prove complex. It seeks to apply the federal Racketeer Influenced and Corrupt Organizations (RICO) Act of 1970 to a civil dispute. Congress aimed RICO at “organized crime.” RICO helped reduce the New England Mob from subverters of mainstream business through violence and threats to exploiters of some peep shows and massage parlors. However, little known to most people, RICO also includes a section authorizing civil lawsuits.

When a “pattern of racketeering activity” by an “interstate enterprise” has been proven in court, triple damages plus legal costs can be awarded in a civil RICO lawsuit. As an early example, civil RICO was used successfully against anti-abortion activists who harassed and trashed a Philadelphia clinic during 1984, resulting in awards of about $45,000 for damages and $90,000 for legal costs.

Bermuda’s claims: According to the recent lawsuit, Lahey “accept[ed] fees for medically unnecessary…services…using those fees to pay Brown increasing bribes…to promote its interests in Bermuda.” [Bermuda v. Lahey complaint, paragraph 121] The “actions have caused [Bermuda] to…increase the rate at which it pays for certain health benefits, and to pay for overseas services in the United States….” [Bermuda v. Lahey, paragraph 132]

That is the essence of Bermuda’s arguments that it is owed damages under the RICO Act, in 18 USC 96.1962(a). Bermuda has also made claims under RICO Sections 1962(b), 1962(c) and 1962(d), using similar arguments. Its complaint says that fraud continued over more than ten years, that fraud cost Bermuda millions of dollars and that “bribes” and “kickbacks” were key elements in the “racketeering activity.”

“Lahey and Brown concocted a scheme built upon bribery and greed and carried out with complete disregard for Brown’s position of public trust or for the physiological and psychological impact on patients–who were subjected to excessive, medically unnecessary and frankly dangerous scans so that Brown and Lahey could obtain greater reimbursements….” [Bermuda v. Lahey, paragraph 3]

“Between 2006 and 2016, Bermudian public healthcare insurers paid Lahey over $40 million for services…To induce patient referrals for diagnostic scanning at the Brown clinics, Brown…offered and paid kickbacks, which he dubbed and disguised as ‘commissions.’…” [Bermuda v. Lahey, paragraph 92]

Dr. Brown is a bystander to Bermuda v. Lahey, not a defendant. If damages and legal costs were awarded under the lawsuit as filed, Lahey would have to pay. However, Dr. Brown’s activities would be key elements in showing a “pattern of racketeering activity” by an “interstate enterprise.”

A key issue for Bermuda will be proving that Lahey knew services in which it participated were “medically unnecessary.” If they were medically necessary or if Lahey did not know otherwise, then Lahey would not likely be seen as a party to fraud. According to the complaint in the lawsuit, patients were often referred to the Brown clinics in Bermuda, who would perform scans and send images to Lahey in the U.S. for interpretation. In such a sequence, Lahey acted as a third-party provider.

Conflicts: According to Bermuda’s complaint, “By 2001, Brown…was…serving as Bermuda’s minster of transport. At this time, [Lahey] entered into the first of many consulting agreements…whereby Lahey agreed to pay Brown and [his company Bermuda Healthcare Services] substantial sums of money in exchange [for] their promotion of Lahey’s interests on the island. [Bermuda v. Lahey, paragraph 28]

The complaint continues, saying “agreements called for Lahey’s payment of ‘consulting fees’ to Brown…in exchange, Brown…would ‘promote healthcare opportunities (for Lahey) in Bermuda and elsewhere in the West Indies.’…Brown’s use and exploitation of his role as a government minister to promote Lahey’s interests in Bermuda [was] a clear conflict of interest….” [Bermuda v. Lahey, paragraph 31]

According to the complaint, what looks to have been a problem developed into a threat: “Increasing the rate of Lahey’s payments was important to Brown because he was reliant on the payments to fund his clinics, which had to operate at capacity each month for him to stay…solvent.” [Bermuda v. Lahey, paragraph 38]

Bermuda’s complaint says Lahey had helped Brown make arrangements to buy a CT scanner for his clinics and later buy an MRI scanner–very costly and risky moves for an individual physician. In addition to paying off debt for equipment, he was also paying Lahey directly for interpreting scans, rather than their trying to bill Bermuda’s national health program, and he tended to fall behind on payments.

Bermuda’s complaint continues by saying that “Brown routinely used his role as premier…to ensure that Lahey got the access for which it paid him…on February 5, 2007, [the chief operating officer at Lahey] mailed Brown to thank him ‘for offering Lahey the opportunity to meet with your minister of health…to participate in the development of a future urgent care center’…Brown responded, ‘You didn’t know you were in the in-crowd? (Smile)’.” [Bermuda v. Lahey, paragraph 50]

As of 2007, an outside survey found that Bermuda did not require a government certificate of need to operate CT and MRI scanners. Its national health-care program did not require preauthorizations for scans. In Massachusetts, certificates of need for scanners began in 1976, and most health-care insurance plans required preauthorizations for scans in the 1980s. In its complaint, Bermuda notes that Dr. Ewart Brown successfully opposed a preauthorization requirement proposed in 2013. [Bermuda v. Lahey, paragraph 99]

Prospects: Clearly set out in Bermuda’s complaint initiating the recent lawsuit are issues that might have been obvious to Lahey executives: conflicts of interest between Dr. Brown’s efforts in Bermuda for Lahey and Dr. Brown’s duties in government, plus financial pressures created by Dr. Brown’s debt payments for medical equipment and Dr. Brown’s payments for medical services provided by Lahey.

Bermuda’s complaint has benefited from unexplained disclosures, such as messages cited between Dr. Brown and an executive at Lahey. However, Bermuda probably has more to learn about Lahey’s activities. Unless the case is dismissed on preliminary motions, it will enter discovery, providing Bermuda with opportunities to obtain information.

Bermuda’s complaint says that “no one was better positioned than Lahey, which read all scans conducted at the Brown clinics, to detect medically unnecessary scans.” [Bermuda v. Lahey, paragraph 81] However, Lahey did not necessarily know what medical indications had prompted scans, since it was reportedly Dr. Brown’s clinics that performed them. Whether scans were or were not “medically necessary” and how much Lahey knew about that are issues likely to develop at a trial.

Bermuda has accused Lahey of paying Dr. Brown for favors and accused Dr. Brown of paying other physicians to refer patients to his clinics. It will surely try to obtain documents and testimony strengthening those claims. If successful in the efforts, Bermuda might be able to prove at a federal trial what it now alleges–that the cooperation between Lahey and Dr. Brown comprised a “fraudulent enterprise,” subject to sanctions under the RICO Act. [Bermuda v. Lahey, paragraph 70]

– Craig Bolon, Brookline, MA, April 15, 2017


Complaint, Bermuda v. Lahey, case 1:17-cv-10242, U.S. District Court for Massachusetts, February 14, 2017

Priyanka Dayal McCluskey, Lahey fights back against Bermuda bribery allegations, Boston Globe, April 14, 2017

Unattributed, Brown braced for chance of arrest, Royal Gazette (Bermuda), February 24, 2017

Shelley Murphy and Priyanka Dayal McCluskey, Former Bermuda premier defends his ties to Lahey, Boston Globe, February 22, 2017

Shelley Murphy and Danny McDonald, Bermuda’s ex-premier calls claims Lahey bribed him a litany of lies, Boston Globe, February 16, 2017

Sam Strangeways, Lawsuit slams Brown and Lahey, Royal Gazette (Bermuda), February 16, 2017

Janelle Lawrence, Bermuda files lawsuit accusing a U.S. hospital group of costly, unnecessary medical-imaging tests, Bloomberg News, February 15, 2017

Mark Arsenault, Former Bermuda leader with ties to Lahey was educated in US, Boston Globe, February 15, 2017

Jo Anne Pool, Northeast Women’s Center v. McMonagle: a message to poltical activists, Akron Law Review 23(2):251-267, 2015

John J. Hamill, Brian H. Rowe, Kaija K. Hupila and Emily Burke Buckley, A guide to civil RICO litigation, Jenner & Block, 2014

Bermuda Hospitals Board: Estate Master Plan review, Johns Hopkins, 2007