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Federal Probe of COVID Testing Company With Stunning Error Rate Expands to Nevada

2 years 5 months ago

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Federal authorities are expanding an investigation into Chicago-based Northshore Clinical Labs following a ProPublica story that raised questions about its COVID-19 testing operations in Nevada, according to an email obtained by ProPublica.

In a May 17 email that referenced our reporting on Northshore, an investigator with the Inspector General’s Office of the U.S. Department of Health and Human Services indicated he planned to subpoena documents from Nevada health officials.

“Myself and other law enforcement agencies have had a case opened regarding Northshore Clinical Lab for quite some time,” wrote Special Agent Peter Theiler, who is based in Chicago. “After reading the ProPublica article on Northshore Clinical Lab regarding Nevada patients, we are interested in obtaining records related to testing for COVID-19 for Northshore Clinical Lab rapid test results and PCR test results for Nevada.”

The email did not name the other law enforcement agencies or provide further details on the OIG’s open investigation.

The state of Nevada had not received a subpoena as of Tuesday but will cooperate with one if it’s received, said Nevada Department of Health and Human Services spokesperson Shannon Litz.

Meghin Delaney, a spokesperson for Gov. Steve Sisolak, said the state won’t need to be compelled to aid the investigation.

“We’re not going to need a subpoena to cooperate,” she said. “Clearly complying with this federal investigation is important on our end.”

Our investigation documented Northshore’s stunning false negative rate — 96% on the University of Nevada Reno campus — and raised questions about the company’s billing practices. We also found that the company, which is managed by three Chicago men with a history of fraud allegations, used political connections to fast-track its license inspection and to win agreements with local government agencies across the state to provide testing.

The company was able to expand its testing operations in Nevada despite concerns raised by local government scientists about its erroneous results.

Northshore representatives have repeatedly declined to comment.

In a statement released last week, Sisolak’s office said Northshore’s “negligence is despicable.”

“They took advantage of states and local municipalities at a time when millions of Americans were relying on their services,” Delaney said in the written statement. “In order to hold Northshore accountable for these fraudulent practices, the State of Nevada is assessing its legal options.”

Delaney also said Sisolak is making investments in the state’s public health infrastructure to increase testing capacity.

Sisolak, a Democrat running for a second term, is fending off attacks over his response to the pandemic from Republicans vying for the nomination to oppose him. Sisolak is friends with the father of two men Northshore contracted with to expand its business in Nevada.

“Sisolak’s friends made millions and we paid the price,” said Clark County Sheriff Joe Lombardo, one of 10 GOP contenders in the primary for governor.

Sisolak’s office has said repeatedly that he had no discussions with Northshore’s Nevada representatives, Greg and Angelo Palivos, or their father, Peter. The Palivos brothers have said they weren’t aware of the Federal Trade Commission’s past fraud accusations against the leaders of Northshore. They also said Northshore owes them a substantial amount of money for their work in Nevada.

Sisolak also pushed back against criticism of Nevada’s role in allowing Northshore to continue operating for so long, claiming in a statement that the state “ordered them to stop their PCR testing operation, opened an investigation and worked to correct testing issues” on the day it was made aware of the problems.

Nevada’s own internal documents, however, indicate Northshore voluntarily stopped PCR testing days before the state’s regulatory agency learned of the issues. The documents contain no formal orders to stop PCR testing. The agency also waited four days to open the investigation because the complaint came in late on a Friday afternoon before a holiday weekend.

The state also opted to allow Northshore to continue providing rapid antigen tests to the public outside of its license as the investigation progressed. Nevada officials said it is standard practice to allow a health care provider under investigation to continue operations as it works to correct deficiencies.

Northshore, citing a lack of demand, pulled out of the state before the investigation could be completed. Nevada regulators closed its license and notified the State Board of Nursing, the Occupational Safety and Health Administration and the U.S. Centers for Medicare and Medicaid Services of their findings.

by Anjeanette Damon

Illinois Will Investigate Possible Civil Rights Violations in Student Ticketing

2 years 5 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

This story was co-published with the Chicago Tribune.

The Illinois attorney general’s office is investigating whether one of the state’s largest school districts, located in Chicago’s northwest suburbs, violated civil rights laws when police issued tickets to students accused of minor misbehavior.

Attorney General Kwame Raoul told the Township High School District 211 superintendent last week to provide records on students cited for municipal ordinance violations related to school-based conduct or truancy, according to a letter obtained by ProPublica and the Chicago Tribune. The office also requested data and records related to suspensions, expulsions, student transfers to alternative schools and calls to police regarding students since the start of the 2018-19 school year.

The nearly 12,000-student district operates five high schools and two alternative schools in Palatine, Hoffman Estates and Schaumburg.

The attorney general’s office decided to investigate District 211 after reading about racial disparities in ticketing across the state, which was documented by the Chicago Tribune and ProPublica for the investigation “The Price Kids Pay.” As part of the investigation, reporters created and published a first-of-its-kind database of tickets issued at Illinois public schools over the last three school years, the reasons police ticketed students and, when available, the racial breakdown of students who received tickets.

Illinois Attorney General Kwame Raoul (Brian Cassella/Chicago Tribune)

Amy Meek, chief of the Civil Rights Bureau in the Illinois attorney general’s office, said District 211 stood out in both the number of tickets issued and racial disparities in the ticketing. She said it is possible the office will examine other districts as well.

“This is an issue that we are quite concerned about,” Meek said.

The attorney general’s investigation also targets the village of Palatine and its police department, which has jurisdiction at three of the district’s schools and has officers, known as school police consultants, stationed in its buildings. The attorney general is seeking documents, including records on tickets, debts sent to collections and truancy fines issued to District 211 students, according to a letter sent to the village.

The civil rights investigation is the latest move by the state to address problems uncovered in “The Price Kids Pay,” a series of stories that, together with the database, have documented nearly 12,000 tickets issued in dozens of Illinois districts. Reporters found that school officials and police were working together to ticket students for misbehavior at school, resulting in fines that could cost hundreds of dollars per ticket.

Within hours of the publication of the first story last month, state schools Superintendent Carmen Ayala urged schools to stop asking police to ticket students, saying they had “abdicated their responsibility for student discipline to local law enforcement.” Illinois Gov. J.B. Pritzker said he was exploring ways that he and lawmakers could “make sure that this doesn’t happen anywhere in the state of Illinois.”

Based on available records from two of the three police agencies that work in the district’s schools, reporters documented 541 tickets issued to students at District 211 schools during the past three school years, most of them for truancy, use or possession of tobacco or vaping devices, possession or use of small amounts of cannabis, or disorderly conduct.

Most of the ticket records involving District 211 students were obtained from the Palatine and Hoffman Estates police departments and did not include information on the race of the recipients. District 211 does not track the tickets that police issue to students, according to the district’s chief operating officer. But in response to a public records request for ticket records, the district did provide information on the race of students involved in 120 truancy incidents. These were labeled “truancy ticket issued.”

More than half of those 120 incidents involved Latino students, even though 26% of the district’s students are Latino. Black students represent less than 6% of enrollment but received 10% of the tickets.

Under a law that went into effect in 2019, the Illinois legislature banned schools from referring truant students to police so that they could be ticketed.

In a written statement, District 211 Superintendent Lisa Small said the district views student discipline as a way “to teach students citizenship in the school community, with an emphasis on equity and student success.”

Small said school officials involve the police when student conduct violates a local ordinance or state or federal law, when it poses a safety threat in the school, or when other interventions, such as parent conferences, aren’t effective.

“These responses are implemented regardless of the student’s race, ethnicity, socioeconomic background or other factors,” she wrote. “We continually review our practices to ensure we are acting fairly and equitably, responding appropriately and ensuring the results are in the best interest of all students.”

The Palatine village manager, village attorney and police chief did not respond to requests for comment.

Palatine is just one of three towns whose police departments have jurisdiction in District 211. Because the district does not keep records of when students get cited by police, obtaining a complete picture of ticketing practices in the district would require getting records from all three municipalities. Meek said the attorney general’s office may still also request information from the other two, Schaumburg and Hoffman Estates.

State civil rights inquiries examine whether there’s a “pattern and practice” of unequal treatment based on race or other characteristics, such as gender. Meek said school districts or municipalities can be in violation of civil rights laws when their policies and practices have a disparate impact on certain groups of people, even if it is not intentional.

In requesting records related to ticketing and other forms of discipline, the attorney general’s office asked for information on the students’ race and gender and on whether they have a disability. The office also sought information that would indicate the reasons for the tickets and the cost of the fines.

Palatine High School (Stacey Wescott/Chicago Tribune)

In Palatine, records show, police issued 240 tickets from July 2018 to August 2020 to people under 18 at Palatine High School and William Fremd High School. About 170 of those tickets were for truancy. Most of the truancy tickets were written after the law banning schools from referring truant students to police for tickets went into effect.

Ticketing by police was far more common at Palatine High School, where nearly 48% of students are Latino, than at Fremd, where about 10% of students are Latino.

Excluding parking tickets, Palatine police issued more ordinance violation tickets at Palatine High School than anywhere else in the village during the time period examined, according to reporters’ analysis of police records. Nearly three times as many tickets were issued at the high school as at the next most common site for ticketing: Nellie’s Gastropub and Concert Hub, also known as Durty Nellie’s.

At Hoffman Estates’ two high schools, the Tribune-ProPublica investigation identified more than 300 tickets issued to juveniles during the past three school years for disorderly conduct, possession or use of tobacco, e-cigarettes or cannabis, or truancy. The fines totaled nearly $37,000, and about $13,000 was unpaid, records show. Some Illinois municipalities, including Hoffman Estates, send debt from unpaid student tickets to collections.

Schaumburg police would not indicate which of the tickets issued to young people went to students at Schaumburg High School.

One former student at Hoffman Estates High School recounted this week how she was ticketed for disorderly conduct at the school when she was 17 years old. She said she had put her hands out during a verbal confrontation after school. Police records show she was ticketed in March 2019 and fined $200.

The former student, who is multiracial, said she told school officials that the ticket was unfair and didn’t pay it, she said in an interview. Now a 20-year-old college student, she received a notice in January from a collections company that she owes $270.

The woman said she was glad that the attorney general is investigating District 211. “Hoffman has become more diverse in the past couple of years, and there is a difference in how they treat African American students, any kind of minority students. It is different treatment,” she said. “Something should have been done a long time ago because it has been going on for a while.”

Meek said publicly available data on suspensions and expulsions, as well as previous lawsuits against the district, played a role in the decision to launch a civil rights investigation. Meek also said the office is aware that the U.S. Department of Education’s Office for Civil Rights opened an investigation in December into whether an individual student had been disciplined unfairly because of their race and disability status. That investigation is pending.

In addition, District 211 settled a federal civil rights lawsuit in 2019 that involved a Black student who had been ticketed at Palatine High School.

In that case, filed in 2016, a Palatine senior alleged that a police officer at the school used excessive force when he chased her down a hallway and pinned her to the ground. According to the lawsuit and a police report that became part of the case record, the girl had been running after her sister because the sister, also a student, spilled milk on her. The officer arrested both sisters and put them in cells at the police department. Police wrote each girl a ticket for violating a village ordinance prohibiting disorderly conduct.

The district, the police officer and school officials named in the lawsuit denied wrongdoing, but the district agreed to settle the case. District officials said they could not locate a record of how much the settlement was for.

The district and Palatine police have until June 30 to provide records sought by the attorney general. If the investigation reveals violations of civil rights law, the attorney general could negotiate with the district to change its practices, seek a court-monitored consent decree or file a lawsuit against the district.

Meek said the investigation could take a year to complete.

“We also encourage people to reach out to the Civil Rights Bureau if they have complaints or concerns about other districts they want to bring to our attention,” she added.

by Jennifer Smith Richards, Chicago Tribune, and Jodi S. Cohen, ProPublica

Inside the Government Fiasco That Nearly Closed the U.S. Air System

2 years 5 months ago

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The prospect sounded terrifying. A nationwide rollout of new wireless technology was set for January, but the aviation industry was warning it would cause mass calamity: 5G signals over new C-band networks could interfere with aircraft safety equipment, causing jetliners to tumble from the sky or speed off the end of runways. Aviation experts warned of “catastrophic failures leading to multiple fatalities.”

To stave off potential disaster, the Federal Aviation Administration prepared drastic preventive measures that would cancel thousands of flights, stranding passengers from coast to coast and grounding cargo shipments. “The nation’s commerce will grind to a halt,” the airlines’ trade group predicted.

On Jan. 18, following nail-biting negotiations involving CEOs, a Cabinet secretary and White House aides, an eleventh-hour agreement averted these threats of aviation armageddon. Verizon and AT&T agreed not to turn on more than 600 5G transmission towers near the runways of 87 airports and to reduce the power of others.

Disaster was averted. But the fact that it was such a close call was shocking nonetheless. How did a long-planned technology upgrade result in a standoff that seemed to threaten public safety and one of the nation’s largest industries? The reasons are numerous, but it’s undeniable that the new 5G deployment represents an epic debacle by multiple federal agencies, the regulatory equivalent of a series of 300-pound football players awkwardly fumbling the ball as it bounces crazily into and out of their arms.

More than anything, a deep examination of the fiasco reveals profound failures in two federal agencies — the Federal Communications Commission and the FAA — that are supposed to serve the public. In the case of the FCC, the agency not only advocated for the interests of the telecommunications industry but adopted its worldview, scorning evidence of risk and making cooperation and compromise nearly impossible. In the case of the FAA, the agency inexplicably stayed silent and passively watched preparations for 5G proceed over a period of years even as the aviation industry sounded ever more dire warnings that the new networks could put air safety at risk.

That’s the alarming picture that emerges, in new detail, in interviews with 51 participants and observers in the 5G rollout, along with a review of thousands of pages of documents. The problems have spanned a Republican and Democratic administration. The process first ran off the rails under President Donald Trump. It then festered under the administration of President Joe Biden — which ProPublica’s reporting shows impeded the FAA when it finally decided to act — until a crisis forced an intervention.

For now, the truce between the FCC and telecom companies, on one side, and the FAA and aviation companies, on the other, is holding. The parties have mostly tempered their hostile rhetoric, sounded hopeful notes of “coexistence” and have begun to collaborate. The FAA is allowing the wireless companies to slowly turn on more 5G towers as planes mostly keep flying. (About a thousand regional jets, mostly used by JetBlue, American, Delta and United, are currently barred from landing in low-visibility conditions at many airports over fears of equipment interference.)

But the underlying issues are far from resolved. Aviation companies say they need much more time — perhaps two years or more — to upgrade or replace all the equipment vulnerable to 5G interference, according to Bob Fox, a United Airlines pilot now serving as national safety coordinator for the Air Line Pilots Association, a key player in the drama.

The telecom companies have no interest in such a lengthy time frame: Their agreement with the government is set to expire on July 5, and they have made no commitment to extending the restrictions on their towers past that date. The companies have been exhibiting a willingness to make short-term compromises, but they’re also showing hints of frustration that they can’t seem to bring the process to a resolution.

For its part, the FCC seems aggrieved. It overwhelmingly blames the aviation agency for the problems and simultaneously says it’s cooperating with the FAA — while continuing to insist that any claims that 5G will threaten airplanes are pure fantasy. The rhetoric of the FCC chief is almost identical to that of the industry she regulates. As recently as last month, Jessica Rosenworcel, the Biden-appointed FCC chair, dismissed aviation concerns as, in effect, a shakedown — a ploy to get telecom companies to fund a nationwide upgrade of airplane equipment. Referring to the air-safety devices that the aviation industry says could be compromised by 5G, she said in an interview with ProPublica, “Has anyone spec’d the cost of altimeter replacement?”

And a whole new telecom-aviation conflict could soon emerge. T-Mobile and other wireless companies are approved to roll out additional 5G service at the end of 2023, using a C-band frequency even closer to the one used by the airplane safety equipment. Like other participants in the process, T-Mobile says it’s committed to safety and to finding a reasonable solution. But if that rollout unfolds in a way that resembles the last one in the slightest way, a reasonable solution may be elusive.

There was a time, a century ago, when radio was the hottest new technology in the land. Stations sprouted up everywhere, and they routinely used the same frequencies. The result was electronic bedlam: Programming was regularly interrupted by rival stations, police-radio chatter and amateur enthusiasts. Congressional legislation lamented “the present chaos of jazz bands, sermons, crop reports, sporting services, concerts and whatnot running simultaneously on the same wave lengths.” In one celebrated case, a wealthy Illinois bank president obtained a court order against a local 18-year-old whose radio transmissions had kept him from listening to broadcasts of election-night results at his home.

Since its founding in 1934, the Federal Communications Commission has decided which companies would have rights to which parts of the airwaves — for television and countless other technologies. Here, an RCA engineer examines an array of ultrahigh-frequency TV antennas in 1952. (Bettmann Archive/Getty Images)

There was a critical need for a neutral arbiter to make decisions about who could occupy which part of the airwaves. All this led to the creation of a federal agency to regulate radio, which ultimately morphed into the FCC in 1934. A big part of its mission, as the new agency told Congress, was to make “equitable distribution of the frequencies ... as congestion increases.”

The march of technology over the 88 years that followed can be understood as a series of battles for the airwaves. Virtually every important communications technology, from television and satellites to cellphones and GPS, has required bandwidth. The FCC was there to dole out frequencies and referee the conflicts. There were massive financial stakes in many of the decisions. They launched entire industries, while burying or transforming others.

As more and more technologies crowded into a finite set of frequencies, the opportunities for one technology to interfere with another only increased. In the mid-1990s, new digital phone technology unintentionally triggered a buzzing in some hearing aids, while interference from police radios sometimes prompted powered wheelchairs to randomly accelerate or brake, leading to serious injuries. In 2010, the shift to digital television required the replacement of wireless microphones used by actors in Broadway shows, referees at NFL games and pastors at Sunday church services.

By the time 5G approached, the FCC had long ago developed an acclaimed system of selling spectrum — reserved areas of the airwaves — for commercial use, which generated large sums of money for the federal government: public auctions. The agency’s first such auction was held in 1994. Over the years that followed, the FCC successfully used the process 110 times, raising more than $233 billion. The auctions’ sophisticated format helped win a Nobel Prize for two Stanford economists who designed them.

But the Trump administration didn’t initially seem inclined to leave 5G decisions to the FCC. The administration saw the fifth generation of cellular technology, with its faster speeds and automation efficiencies for industry, as its single biggest communications initiative.

Top Trump officials viewed the technology through the prism of competition with China. Many in the administration also expressed fears that Huawei Technologies, a dominant maker of 5G hardware, might be a conduit for Chinese government surveillance, posing a national-security threat. (Huawei has always denied such claims.) Trump lieutenants began employing a nationalist battle cry: America needed to “win the race to 5G” against China.

The Trump administration veered in multiple directions in pursuit of that goal. In January 2018, National Security Council officials circulated a plan to create a government-run 5G network. This idea was jettisoned almost as soon as it was proposed, amid criticism that this would constitute socialism.

President Donald Trump, with AT&T’s then-CEO, Randall Stephenson, in 2017, examining a model of how 5G will be deployed in cities. Trump was a cheerleader for 5G adoption but often cast the process as part of a race against China. (Olivier Douliery-Pool/Getty Images)

Others in the Trump orbit proposed ideas as well. Attorney General William Barr at one point suggested that the U.S. government, in the interest of developing China-free 5G networks, buy controlling interests in Nokia and Ericsson, the European telecom equipment companies. Republican insiders such as consultant Karl Rove, former House Speaker Newt Gingrich and Trump campaign manager Brad Parscale promoted a partnership in which the Defense Department would lease unused spectrum to Rivada Networks, a company backed by GOP donor Peter Thiel. This approach was embraced by a Trump campaign spokesperson and then promptly repudiated by the White House. Trump himself declared that the administration’s 5G plan should be “private-sector driven and private-sector led.”

Eventually the White House moved on to other obsessions. The FCC, and its chairman, became the driving force in the race to 5G. The agency’s brash leader, 44 when he took the role in 2017, was Ajit Pai. He had been an FCC commissioner before being elevated by Trump. Pai’s agency was legendarily friendly to the companies it regulated, with commissioners and key staff routinely moving to and from lucrative posts in the industry. Pai himself had spent two years early in his career as an in-house lawyer at Verizon and later worked at a law firm that served telecom clients. Since stepping down at the end of the Trump administration, Pai has decamped to a private-equity firm whose portfolio includes telecom and broadband companies.

At the FCC, Pai joined the wireless companies in evangelizing for 5G. He would make it the central initiative of his tenure. A speedy rollout, Pai proclaimed, would “transform our economy, boost economic growth and improve our quality of life.” He regularly cited a report proclaiming that 5G could create up to 3 million new U.S. jobs and $500 billion in economic growth — without noting that those rosy figures came from a study commissioned by the wireless industry’s lobbying group.

Under Pai, the path to 5G initially continued to zigzag. After the White House abandoned the central plan, the FCC turned in a new direction, one that would put a few foreign satellite companies in charge of the process. At issue was the so-called C-band, a patch of wireless real estate viewed as the sweet spot for 5G. Wireless companies coveted C-band spectrum for its ability to transmit big chunks of data rapidly over long distances; it would maximize 5G speeds while minimizing the number of expensive cell towers and transmitters the companies needed.

That spectrum was owned by the federal government. But it was then being used with the government’s consent, free of charge, by four foreign satellite companies that relayed radio and TV signals around the globe. Sensing opportunity, the companies banded together and made an audacious proposal: They, the non-rent-paying users of the spectrum, would sell it to U.S. wireless companies and keep most of the expected tens of billions of dollars for themselves. (They agreed to make a voluntary contribution to the federal Treasury from the proceeds.) This “market-based solution,” the satellite companies claimed, would be the fastest way to get 5G networks up and running.

Pai seriously entertained this approach for a year. The plan eventually fizzled in the face of fierce opposition led by Louisiana Republican Sen. John Kennedy, who expressed outrage that foreign satellite companies would reap most of the money from a sale of U.S. government spectrum.

FCC Chairman Ajit Pai, shown in 2017, was an evangelist for 5G. He regularly cited a report proclaiming that the technology could create up to 3 million jobs, without noting that those figures came from a study commissioned by the wireless industry’s lobbying group. (Chip Somodevilla/Getty Images)

Stymied, the FCC swerved back to its traditional approach: a public spectrum auction, in this case for a big chunk of the C-band. The agency decided that the winning bidders would pay the satellite companies up to $14.7 billion for quickly vacating those frequencies and retooling on different frequencies. That, the agency hoped, would avoid costly, time-consuming lawsuits by the satellite companies.

A $14.7 billion payout was staggering, but it was an accepted FCC practice to arrange compensation for companies affected by its spectrum actions. The agency, however, would make no such provisions for another group warning of far graver consequences: the U.S. aviation industry.

The battle that would threaten to ground American aviation centered on an electronic device about the size of a toaster. Called a radio altimeter, it’s used to track an aircraft’s altitude during takeoff and landing.

Radio altimeters, which became standard gear in the early 1970s, work by bouncing an electronic signal off the ground, sending their readings instantly to the cockpit. This is important for low-visibility landings, at night or in bad weather. It matters at other times, too: Radio altimeters on many commercial jets feed their data into automated navigation and crash-avoidance systems, sometimes controlling the engines and braking systems. About 50,000 planes and helicopters in the U.S. carry radio altimeters.

Aviation industry anxiety about the peril of radio altimeter failure inevitably cites a Turkish Airlines Boeing 737 that crashed in 2009 while attempting a landing in Amsterdam. Nine passengers and crew members died. An investigation revealed that the disaster originated with a malfunctioning altimeter, whose faulty readings triggered the jet’s auto-throttle to cut power during the final landing approach.

The FCC’s plans to use the C-band for 5G rekindled these fears. The problem was that the upper part of the C-band is where radio altimeters operate, prompting concern that nearby 5G transmissions would cause them to spit out false readings or stop working. Because most altimeters had been built and installed decades earlier, when there was nothing noisy in their electronic neighborhood, they hadn’t been designed to screen out the likes of 5G.

Fights over the FCC’s efforts to cram ever more users into limited spectrum became unusually common, and heated, during the Pai regime, and it wasn’t just the aviation industry that protested. Other orders granting telecom companies various 5G frequencies prompted complaints that they would disrupt networks used for satellite communications, weather forecasting, agriculture, self-driving cars, global-positioning services and military weapons systems. One of the FCC actions, still being fought, drew opposition from 14 federal agencies and departments. Again and again, the FCC, backed by the Trump White House, brushed those pleas aside. “Agencies raising concerns about the impact of 5G were just sort of being mowed down by the FCC,” according to a former high-level Trump official involved in spectrum disputes.

Starting in 2018, more than a dozen aviation groups and companies told the FCC they worried that interference with radio altimeters could cause a deadly plane crash. They urged the agency to work with the FAA and delay an auction until it had identified and eliminated any risk. Aviation-industry officials also argued that the telecom companies, or the Treasury, should fund billions of dollars’ worth of altimeter upgrades to eliminate interference problems from the 5G C-band signals.

But the FCC didn’t think there was a problem to solve. The agency embraced the wireless industry’s view, which was to deny that the new 5G networks posed any risk to aviation safety.

“One of the things we built into the way spectrum auctions work is that various people need to be paid off,” said Blair Levin, who was FCC chief of staff when the agency first deployed its auctions. Levin said the 5G process was handled differently: “The airlines came and said, ‘We have this problem.’ Nobody asked: ‘What do you need to fix the problem? Do you need $2 billion? Do you need $4 billion? Do you need $6 billion?’ Ajit just said: ‘We don’t care; we don’t think your concerns are legitimate.’”

Pai defends that position. “The FCC’s career staff did a terrific job analyzing the facts,” he told ProPublica, “and had demonstrated to all the commissioners at the FCC that there was no credible case made for the possible interference with aviation altimeters… No legitimate objective engineering work would find a legitimate case for those arguments.” The FCC was the final word on spectrum allocation. End of discussion.

But that ignored a key fact: The FAA was the final word on airplane safety, and it was becoming more concerned about the risk to radio altimeters. And unlike other agencies, the FAA had sweeping authority to order dramatic steps to avoid any chance of a fatal accident.

The FAA had massive power — but it didn’t seem inclined to use it. For starters, like more than one agency under Trump, it suffered from instability at the top, with an interim leader for 18 months. And the FAA was on the defensive in the wake of two Boeing 737 MAX crashes that killed a total of 346 people and tarnished the agency’s reputation.

That meant that when Steve Dickson took over as chair in the summer of 2019, the FAA was distracted by the Boeing mess, according to an agency source. And in Dickson, the FAA seemed to have the temperamental opposite of the aggressive and ambitious Pai. Dickson, who was 61 when he took the agency helm, was a onetime Air Force fighter pilot who had recently retired from a three-decade career at Delta, first as a pilot and then as a company safety executive. (Along the way he also got a law degree.)

Perhaps because of his background in the military or perhaps just by dint of disposition, Dickson adhered strictly to the chain of command. Methodical, cautious and measured — a top deputy said he’s never heard him raise his voice — Dickson was loath to take steps outside official procedures, and those official procedures placed a lot of emphasis on filing papers. So that’s what Dickson and his agency did.

FAA Administrator Steve Dickson, shown testifying in 2021, spent a lot of his time dealing with the crisis over the Boeing 737 MAX. If Pai was aggressive and brash, Dickson tended to be rules-focused and methodical. (Joshua Roberts/Getty Images)

Dickson did not, for example, call Pai to hash out the 5G issue. He did not march to the White House to sound the alarm. He issued no press releases to bring attention to the looming problem. The agency’s only official expression of concern in 2019 was a two-page letter from an agency engineer to a Commerce Department panel charged with resolving government spectrum disputes. It urged the FCC to delay any C-band auction until a technical study the FAA had funded had arrived and “any interference mitigations have been considered.” (Dickson declined to comment for this article.)

The FAA’s passivity was particularly striking given the mounting concern in the aviation industry. A pair of reports by aviation research groups intensified those anxieties. The first was a preliminary lab study, conducted by a government-industry research cooperative at Texas A&M University. It found all seven radio altimeters it tested were susceptible to interference. It too urged further analysis. The report was submitted to the FCC in late 2019.

But the FCC didn’t wait. On Feb. 28, 2020, it voted to authorize the C-band sale, and it scheduled the auction for Dec. 8. The FCC’s 258-page report and order devoted just six paragraphs to aviation safety, much of it agreeing with a T-Mobile-sponsored report that dismissed aviation concerns. The FCC contended that its precautions, including leaving a patch of spectrum vacant between 5G transmissions and the altimeter frequency, would be sufficient.

The FCC order made clear whose problem this was to solve. “Well-designed equipment should not ordinarily receive any significant interference (let alone harmful interference) given these circumstances,” the order stated. “We expect the aviation industry to ... take appropriate action, if necessary, to ensure protection of such devices.”

The aviation companies didn’t see it that way. Their concerns escalated in October 2020 with the issuance of a 231-page report by the RTCA, a nonprofit aviation industry research organization originally known as the Radio Technical Commission for Aeronautics. It found that 5G posed “a major risk” to altimeters with “the potential for broad impacts to aviation operations in the United States, including the possibility of catastrophic failures leading to multiple fatalities.” It too urged the FCC, FAA and industries to work together to tackle the problem.

The opposite happened. The telecom and aviation industries embraced diametrically opposing views of reality. They assailed each other’s studies and methodologies. The wireless advocates declared that nearly 40 other countries had already deployed 5G on the C-band near airports, under conditions similar to those contemplated in the U.S., without incident. Aviation allies replied that power levels and other limits on 5G operations near overseas airports were meaningfully different. Each side accused the other of refusing to share technical data needed to assess the issue.

The two sides also viewed risk in radically different ways. From the aviation perspective, the wireless industry simply couldn’t fathom its hypercautious safety culture, which, given the horrific consequences of an accident, demands that any critical equipment be proven to pose a probability of failure of no more than one in a billion. “If there’s the possibility of a risk to the flying public,” the FAA’s “5G and Aviation Safety” website notes, “we are obligated to restrict the relevant flight activity until we can prove it is safe.”

Aviation companies were getting increasingly nervous. Yet the FAA continued to sit on its hands. Finally, with the 5G auction just a week away, in December 2020, the FAA took action of sorts: It drafted a letter.

What happened next involves a tiny government agency few people have heard of. Buried deep inside the U.S. Department of Commerce, it’s called the National Telecommunications and Information Administration. It advises the president on spectrum issues and mediates fights between federal agencies. Its job is to help resolve exactly the sort of conflict that was raging over 5G.

In the Trump administration, however, the NTIA was in disarray. A Government Accountability Office report would find that the agency lacked a “formalized” process for weighing in on spectrum issues. The last Senate-confirmed chief of the agency had abruptly quit in May 2019. By November 2020, it was on its third acting administrator, former Michigan State law professor Adam Candeub.

Candeub had a record as a conservative legal warrior. He’d represented a white supremacist in unsuccessfully suing Twitter for permanently barring him and his organization from its platform. He was also a fervent advocate for the FCC’s aggressive 5G agenda. Right before joining the Trump administration, Candeub published a column in Forbes titled “FCC Chair Ajit Pai Must Press Forward on 5G Auctions.” The article praised Pai for cutting “bureaucratic meddling.”

It was into these hands that the FAA and the Department of Transportation would deliver a four-page missive, dated Dec. 1, 2020, with a request that it be forwarded “expeditiously” to the FCC for public posting. Filing such a letter through the NTIA was the proper federal protocol. But the step hardly seemed to match the gravity of the problem.

Still, what the letter was asking for was remarkable: It urged the FCC to delay its C-band auction, which was just a week away at that point. Understanding “the safety and economic ramifications” of the 5G rollout required a “comprehensive risk assessment and an analysis of potential mitigation options,” the letter stated. Its tone may have been bureaucratic, but the letter contained a dramatic warning: If 5G deployment moved forward “without addressing these safety issues,” the FAA would consider imposing flight restrictions that “would reduce access to core airports in the U.S.”

This letter never made it onto the FCC’s public docket, where it would have amplified the need to resolve the dispute. Candeub never sent it.

Nearly a year afterward, when news of the letter first surfaced in media reports, and some people accused him of burying the letter to help the FCC’s agenda, Candeub, back at his old job at Michigan State, denied any political motivation. His agency’s experts, Candeub told reporters, had found “serious flaws” in the RTCA report and therefore dismissed its aviation-safety warnings.

In an interview with ProPublica, Candeub acknowledged discussing the FAA letter with Pai, who “wasn’t happy” about it. (Pai said he couldn’t recall whether or not he and Candeub had talked about the letter.) But Candeub said he’d made his decision based on a highly critical assessment of the RTCA report by Charles Cooper, head of NTIA’s spectrum management office and a career government employee. Candeub said Cooper thought the report had “serious errors.”

Emails between Candeub and Cooper, obtained by ProPublica, reveal a different narrative. In an email on Nov. 25, 2020, Cooper wrote to Candeub that, “as requested,” he and his staff had performed an initial assessment, and it indicated “agreement” with the RTCA’s approach.

“Ah ... so there is a there, there,” Candeub replied. “Do you recommend, therefore, that we work with DOT for a submission to the FCC?”

“I don’t think we have a choice!” Cooper emailed back.

Asked about the exchange, Candeub insisted that Cooper reversed his view after studying the matter for a few more days. “As we dug in further, the conclusion of Charles was that this did not rise to a level of concern, so the letter wasn’t sent. ... That was the final verdict I got from him.”

An NTIA spokesperson, in a statement, offered a different view: “There is no record of a staff recommendation against forwarding the letter from the FAA.” (Cooper declined to comment.) The statement also noted that NTIA staff “recommended that the RTCA study be validated and offered a path forward for better understanding the issues raised. Our work evaluating those issues is ongoing.”

On Dec. 8, the FCC commenced its auction for the C-band spectrum. The agency announced a few months later that the sale had raised a record $81.1 billion, roughly double what industry observers expected.

Verizon bought the biggest stake, for $45.5 billion, followed by AT&T, which paid $23.4 billion. Their costs for building out 5G infrastructure, marketing and paying satellite companies to speed their exit would add tens of billions more to their tab. It left the two companies, understandably, determined to exploit their investment. “We have a license from the U.S. government saying we can proceed,” explained one executive from a wireless company. “We’re not really looking for reasons why we can’t proceed.”

At that point, it appeared that the FCC had prevailed in the battle of federal agencies. Pai and Larry Kudlow, former director of Trump’s National Economic Council, would crow about how they had triumphed over Washington “swamp creatures” in a discussion on Kudlow’s Fox Business show months after both had left government. Pai insisted his agency had followed the science, and the two men denigrated concerns over aviation safety. “The FAA is bellyaching about 5G. The airlines are bellyaching about 5G. We ignored them,” Kudlow declared. “We actually fought the FAA. We won.”

As the 5G auction concluded in early 2021 and winter turned into spring, the FAA resembled the bureaucratic equivalent of a turtle that had first retracted into its shell, then been flipped onto its back. It seemed helpless. After its last-minute letter seeking to halt the spectrum auction was ignored, the agency had said nothing publicly about the issue for months.

The aviation industry was growing increasingly frantic at the FAA’s temporizing. In the summer of 2021, the agency told attendees at an industry forum that it was “still gathering information” on the radio altimeter problem. Aviation executives begged the agency to go public. “We wanted them to publicly state there is a huge problem, and it’s going to cause massive disruptions,” said John Shea, government affairs director for Helicopter Association International, a trade group. “We said: ‘You need to say this out loud! This can’t just be industry speculation.’”

Behind the scenes, though, reality was beginning to dawn at the FAA. Top officials, who had clung to the industry’s hope that somehow the FCC could be persuaded to postpone the C-band rollout for a year or two, had finally grasped that the launch was happening. The FAA simply couldn’t wait any longer if the agency wanted to follow its methodical processes and give airlines time to prepare.

Now the agency prepared to deploy its ultimate weapon: formal air-safety alerts that would pave the way for grounding commercial aircraft. By August 2021, the FAA was ready to proceed.

But a new impediment had arisen: the Biden administration. The White House was discouraging any public action, as was the FCC, which was now operating with a Democratic chair but was every bit as supportive of 5G and the telecom industry’s position on it as Pai had been. They assured the FAA that the agencies and industries could somehow still work out the problem quietly. (A senior FCC official denies the agency requested any delays.)

Repeatedly, the FAA deferred sending out its air warnings. Dickson privately told his staff that his agency was like Charlie Brown, with the White House and the FCC in the role of Lucy, who “keeps pulling the football out from under us.”

In October 2021, the FAA finally began preparing its first airworthiness bulletin, warning of “potential adverse effects on radio altimeters” — but not until its bureaucratic opponents had gotten a chance to vet the language. The bulletin received a line-by-line review from officials at the FCC and the White House’s National Economic Council, according to an FAA staffer involved in the matter. The White House “wanted to make the problem not seem as bad as it was,” the FAA official said. “And they wanted to make sure it was worded in such a way that wireless was not seen as the villain.” (The senior FCC official said his agency “routinely” provides “technical” input on bulletins. The FAA’s parent agency, the DOT, said it supported a “collaborative approach” to “minimize any disruptions to the traveling public” but that the FAA made the final call on the language of its bulletins. As the DOT put it, “​​Part of the process failure during the last administration was a result of auctioning the spectrum without the required collaboration between stakeholders and agencies to ensure the safety of the traveling public and minimize disruptions for them — despite consistent clear requests by DOT and FAA to do so. Conversely, this Administration wanted to ensure that government agencies with technical expertise were all at the table and collaborating.”)

Issued on Nov. 2, 2021, the bulletin alerted equipment manufacturers, aircraft companies and pilots to the potential for “both erroneous altimeter readings and loss of altimeter function.” This, the bulletin advised, could result in “the loss of function” of safety systems. It added that the FAA was assessing whether potential limits on flight operations were warranted.

That threat instantly transformed the standoff. “That kicked in some action,” a wireless-industry executive said. “That’s the first time they said to the airlines: ‘When these guys light up on Dec. 5, we’re going to ground your planes.’” The executive added: “All of a sudden, we needed to tackle a two-year problem in 30 days.”

Two days after the FAA’s airworthiness bulletin went out, Verizon and AT&T agreed to a one-month delay, pushing the 5G start date to Jan. 5, 2022. With threats of aviation shutdowns now officially in play, no one wanted to be blamed for ruining holiday travel.

Now the question became how broad and long-lasting any restrictions on the 5G rollout should be. The telecom companies, backed by the White House and FCC, wanted them to be limited and temporary. The FAA and aviation interests wanted something far more sweeping and permanent.

Haggling commenced in earnest. Verizon and AT&T had already offered to modestly cut power from some 5G transmitters near runways for six months. The aviation companies rejected that as “inadequate and far too narrow.” They proposed a broad swath around airports where towers would never be turned on as well as other limits. No way, countered the FCC. That would render the telecoms’ C-band spectrum “commercially unviable. ... Effectively it would cease to be 5G.” FCC officials felt that the telecom industry was being falsely cast as a villain.

But momentum had turned in favor of the aviation forces. The mere specter of fatal airplane disasters was a potent message. The wireless companies were getting hammered in the press, with news reports warning that 5G could cause planes to crash.

Negotiations intensified. In late December 2021, Transportation Secretary Pete Buttigieg jumped in, talking with the CEOs of Verizon and AT&T. Buttigieg announced a truce on Jan. 3. The wireless companies agreed to another two-week delay and to establish temporary modest 5G-free buffer zones around 50 airports for six months. And they’d provide the FAA with full details about their tower sites.

But almost as fast as it was announced, the deal fell apart. Altimeter testing made clear that the planned buffer zones weren’t nearly big enough to resolve the FAA’s interference fears.

The once-somnolent agency was now firing a fusillade of safety notices, laying out the specifics of how each airport would be affected. Thousands of planes would need to be barred from landing in low-visibility conditions at airports where 5G was present. Some big long-haul jets wouldn’t be able to fly into airports with 5G at all. One FAA notice warned that C-band interference might prevent braking systems on some Boeing 787s from kicking in during landings, causing planes to speed off runways.

Buttigieg and the FAA’s Dickson went back to the CEOs of Verizon and AT&T and demanded yet more concessions. On Jan. 18, the companies capitulated, even as AT&T bitterly complained that the FAA and aviation industry had “not utilized the two years they’ve had to responsibly plan for this deployment.”

When Verizon and AT&T finally switched on their networks the next day, the expanded restrictions (a 3-mile buffer zone around 87 airports) left more than 600 of their 5G towers dark — about 10% of their planned first-day service.

The last-minute chaos spurred a flurry of flight cancellations. But the provisions, and continued testing of radio altimeters, allowed about 90% of planes to operate normally within days. A conspicuous exception was about a thousand Embraer regional jets, used by JetBlue, American, Delta and other airlines. Equipped with altimeters particularly susceptible to interference, they remain restricted from landing in poor-weather conditions in many cities with C-band towers.

The former adversaries finally began to collaborate. The FAA built a measure of trust with Verizon and AT&T by allowing them to turn on enough towers to showcase their 5G service at the Super Bowl on Feb. 13, even though the stadium was beneath a landing approach to Los Angeles International Airport. As the weeks passed, both sides made more accommodations, shrinking the size of the buffer zones while boosting the total number of “protected” airports to 114.

Most participants in the 5G process say comity and cooperation has increased among all parties. AT&T told ProPublica in a statement that it is “continuing to cooperate and collaborate with the FAA, FCC and other stakeholders to help facilitate the FAA’s technical assessments and clearance of aviation equipment. We are encouraged by the significant progress the FAA has made thus far, and we expect that progress will continue going forward.” Verizon also said it was “encouraged” by the “collaboration and pace” among the companies and agencies, adding, “We’re highly confident that the small and declining number of outstanding questions will be resolved sooner than later, without any meaningful impact to airline operations or the availability of 5G at airports.”

For all the expressions of optimism, the problems aren’t yet resolved and a deadline looms: Verizon and AT&T have made no commitment to extend their “voluntary” restrictions beyond July 5. And this may not be the last such battle, either: In December 2023, T-Mobile and other wireless companies will be free to fire up a new patch of C-band, even closer to the altimeter frequency. At that point, 5G will be operating near hundreds of additional airports.

In the face of this uncertainty, aviation companies are scrambling to develop the only promising short-term solution: filters designed to screen out electronic interference for the worst-performing radio altimeters. But many altimeters can’t be fitted with filters and inventing and deploying new altimeters for a 5G world will take years. Meanwhile, the industry is continuing to agitate for someone else to pay for it all.

In recent months, the center of activity in the 5G saga has been the FAA, which is now led by an interim chief. (Dickson announced his resignation in February, saying it was “time to go home”; he left in March.)

The FCC, more on the fringes at this stage of the process, has been talking about steps like improving its processes with the NTIA, while continuing to insist that claims of 5G risk are hooey. AT&T echoed that sentiment, saying “the physics has not changed,” in a second statement it sent to ProPublica, in late May. The company’s hope, in this statement, was beginning to sound like it was being uttered through gritted teeth. AT&T is still “working collaboratively with the FAA and the aviation industry,” it said, while noting that “we have made no additional commitments beyond July 5, but are in discussions with the FAA and aviation on a phased deployment approach that will provide the aviation industry with some additional time to complete equipment updates without stalling our C-Band deployment.”

At the FAA, it seemed like one step forward, one step back as the July 5 deadline approached. On May 4, the agency convened an in-person gathering of 40 invited “stakeholders” from the wireless and aviation industries — but no FCC officials — aimed at forging a path for continued peace. Agency officials reviewed the “rapid evolution” in easing the limits on the wireless companies around airports. And they pressed aviation officials to develop a firm timetable for retrofitting the entire U.S. commercial fleet with filters and new altimeters, in short, a day when 5G can finally be unfettered.

But barely more than two weeks later, on May 19, the follow-up meeting with the FAA sounded considerably less encouraging. One company that is preparing filters for altimeters pleaded for time, saying it needed until the end of 2023. That’s not good enough, the FAA’s acting chief responded. He told them it needs to happen by the end of this year.

Efforts to reach accommodation had increased, it seemed, but so had “heartburn,” as one FAA official put it. “The wireless companies have made it very clear they’re not going to agree to an open-ended situation,” he said. “They seem willing to go past July 5, as long as they know how far past. But they’re making clear their patience is not infinite.”

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Doris Burke contributed research.

Embedded illustrations by ProPublica. Source Images: The7Dew and Peng Song/Getty Images.

by Peter Elkind

Daniel Taylor Was Innocent. He Spent Decades in Prison Trying to Fix the State’s Mistake.

2 years 5 months ago

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When guards first brought Daniel Taylor into a room at the Stateville Correctional Center outside Chicago, we were strangers. It was 2001. I was a reporter for the Chicago Tribune. He was an inmate serving a life sentence.

He had written to me earlier. His was one of the dozen or so letters I’d get from inmates each month — each in an envelope red-stamped with a note saying they were from an inmate at the Illinois Department of Corrections, as if to warn me about their contents. But his letter stood out. He had been convicted of a 1992 double murder, he wrote, but he had records that showed he was in a police station holding cell when the murders were committed.

Even in Chicago, which was fast becoming known for its miscarriages of justice, it was stunning.

Over more than a decade, I talked with Taylor scores of times on the telephone. I visited him in prison. And with Tribune reporters Maurice Possley and Ken Armstrong, I investigated his case as part of a series of stories on false confessions, then followed it until he was exonerated in June 2013.

That it took some two decades for Taylor to be exonerated and win his release spoke to many things, but none more so than the frailties of the criminal justice system and Taylor’s fierce persistence.

Taylor had a kindness and openness I liked immediately. He was candid about his troubled childhood growing up in foster homes and shelters, about leaving school and about life on the streets. Some three months before the murders, he joined the Vice Lords street gang, largely because his friends were in it. He had been arrested a handful of times for such minor offenses as mob action and theft.

Over the years, we got to know each other better. More than anything, I came to admire his tenacity in the face of a justice system that had repeatedly turned aside his innocence claims. His persistence was another indication to me that he might well be innocent, though it was the facts of the case that mattered the most.

This week, the Chicago City Council approved a $14.25 million wrongful-conviction settlement for Taylor in a vote that brought to an end a saga that had begun three decades earlier. His journey should have been so much shorter.

After all, Taylor, then 17, had what seemed the best imaginable alibi: When Jeffrey Lassiter and Sharon Haugabook were shot to death on Nov. 16, 1992, in Chicago’s Uptown neighborhood, Taylor was behind bars in a nearby police lockup. He had been arrested for fighting two hours before the murders and released more than an hour after the murders.

The Police Department’s own records, and officers working at the lockup, showed he was in their custody at the time of the shooting. But by the time police found those records, they already had built their case against him. Two other young men had been picked up and confessed to being lookouts; they implicated Taylor and others. All told, eight young Black men were charged with the murders.

Taylor confessed, too. He said he concluded it was futile to resist after detectives hit him with a flashlight and told him that he could leave if he told them what they wanted to hear. In the end, he gave a lengthy statement. In it, he said he and the others had killed Lassiter and Haugabook, four of them carrying out the crime, the other four acting as lookouts.

The other young men confessed, too, implicating one another in interlocking statements that, in the end, sent five of them to state prison; the cases against three of the eight fell apart at various stages. Some of the others said they were mistreated as well. Police have repeatedly denied wrongdoing in all these cases.

In Chicago, as elsewhere, confessions are potent pieces of evidence, and it is hard for people to understand how someone could admit to a crime they didn’t commit. But it happens with troubling regularity.

And once a confession is made, it is almost impossible to move law enforcement off that narrative. Police and prosecutors have proceeded with cases even when DNA evidence exonerates a defendant and points to another suspect. They have proceeded when a confession doesn’t match the physical evidence. And they have proceeded with other cases besides Taylor’s where a suspect was in jail when the crime occurred. There have been so many dubious confessions in Chicago — including the false confessions obtained through torture by former Cmdr. Jon Burge and his detectives, cases that have led to tens of millions of dollars in settlements — that criminal justice advocates have called the city the capital of false confessions.

Taylor’s case upends the idealistic notion that injustices, and particularly those that seem more obvious, will be quickly corrected. That when evidence emerges to undermine the theory of a case, there will be an aggressive and thorough reexamination of the facts to be sure the right people are taken to trial and sent to prison. That there will be an honest soul-searching to make people whole when they have been wronged rather than the legal brawl that so many have experienced.

When Taylor went to trial in 1995, prosecutors attacked his alibi. They said the records that showed him behind bars were unreliable, essentially arguing that their own documents and employees couldn’t be trusted. They offered witnesses who said they saw Taylor on the streets when he was supposedly in custody.

At 19, Taylor was convicted and sentenced to life in prison without parole. Two of the other men who had confessed were sentenced to life in prison as well, while another two were given 30-year terms.

As we investigated Taylor’s case at the Tribune, we found ample new evidence of his innocence — documents and witnesses who undermined the case against him. If Taylor’s case fell apart, all the cases would fall apart, since they depended on confessions that linked all the young men to the crime. Prompted by our investigation, prosecutors said that they conducted a reexamination of the case; they said they were confident Taylor was guilty. Taylor was upset. My reporting partners and I were not surprised.

Over the next decade or so, as Taylor languished in prison, Possley and I continued to report on the case, increasingly troubled that the system refused to right what seemed so clearly wrong. We uncovered additional evidence that pointed to his innocence. In 2003, one of the convicted men — the only one significantly older than the other seven — admitted he was involved in the slayings and the others weren’t. Other witnesses were found. More exculpatory documents were uncovered. No one else has ever been arrested for the murders; Taylor’s lawyers said there’s no indication they were ever reinvestigated.

And so it went. A slow accumulation of evidence suggested what seemed clear from the start: Daniel Taylor was innocent. At the same time, attorneys at the Northwestern University Law School’s Center on Wrongful Convictions took on the case, developing additional evidence over many years and making powerful arguments in court that a miscarriage of justice had been perpetrated.

Over time, the case gained traction. The 7th U.S. Circuit Court of Appeals wrote in 2011 that there was “strong proof that Taylor’s participation in the crime was physically impossible.” The Illinois attorney general’s office took an interest and turned over records that Taylor’s lawyers hadn’t seen.

Faced with spending his life in prison, Taylor educated himself and, like many inmates, studied his case. He learned to play chess and he lifted weights. He was doing what seemed impossible to me: making a virtue of necessity. But there were times he lost hope. He cried at night. At one point, he cut his wrist. His life seemed defined by an injustice. We talked every few weeks for years, but I was never sure our conversations offered much in the way of hope or solace. Too often, I had no news to offer him. Investigating wrongful conviction cases, some of them decades old, is slow, painstaking work. You can go months, even years without making any progress.

And then, in 2013, prosecutors agreed to dismiss Taylor’s conviction, saying that a review of documents and interviews with additional witnesses had persuaded them that it was not in the “interest of justice to proceed on this matter” — clinical language that failed to convey the legal battles the Cook County state’s attorney’s office had waged to keep Taylor behind bars.

After spending more than half of his life behind bars, his beard now turning gray, Taylor strode out of the Menard Correctional Center on a hot and sunny afternoon with $41 in his pocket. He walked into the embrace of his family. He walked into freedom. He got an apartment. He found a job at Northwestern University, in shipping and receiving. He became a father.

In 2014, a judge granted him a certificate of innocence. Later that year, he filed his lawsuit, alleging that police had arrested him though they knew he was not guilty. That set the stage for the legal fight that followed — years of depositions and motions that led finally to the settlement.

Now, nearly three decades after he was arrested, the city of Chicago will pay Taylor millions of dollars to make up for the years he lost in prison. A police spokesperson declined to comment. Jessica Felker, a deputy corporation counsel for the city, told the Finance Committee last week that settling the case was a “cost-effective measure to limit the city’s exposure.” Felker said that if the case went to trial, Taylor’s lawyers could ask for $21 million to $42 million in damages, plus an additional $4 million in fees.

When Taylor receives his settlement, the city will have paid roughly $40 million to Taylor and the three others who were also exonerated, a stunning amount for a case that seemed dubious from the outset. Police and prosecutors have never revealed publicly if any of the people who handled the investigation or prosecution were disciplined, and Taylor’s lawyers have not found any evidence that anyone has been held accountable. My guess is that no one ever will be.

“Rather than admitting there was a grievous injustice here, the city of Chicago chose to fight and drag this out. They chose to maintain the position that Daniel was guilty,” David Owens, a lawyer at the Chicago firm Loevy & Loevy and one of Taylor’s attorneys in his lawsuit, said in an interview. (The Loevy firm has represented ProPublica in open records lawsuits.)

At every stage, Owens said, Taylor faced opposition. Even after a jury awarded $13.4 million to one of Taylor’s co-defendants in 2017, and after the city of Chicago agreed to pay two others $5.25 million each, the city continued to fight Taylor’s lawsuit. It did so at a steep cost, too, paying outside attorneys more than $2 million in fees, according to Felker.

“They saw Daniel as a defendant,” Owens said, “rather than someone who was traumatized.”

I no longer have Taylor’s initial letter to me; I think I lost it when I moved from the Tribune to ProPublica five years ago. Until this week, I hadn’t talked to him for several years. He had attorneys he had grown close to, including the late Karen Daniel of Northwestern, and I didn’t want to intrude on his freedom. I didn’t want to remind him of his old life. He is charting a new one.

But, with his case now concluded, the time seemed right. We met on Monday at his lawyers’ office and embraced. He looks the same, though his small beard is now more white than gray. At 46, he is focused on his 7-year-old son. He and his girlfriend and son are now planning to move, to leave behind Illinois and the memories of his arrest, prosecution and imprisonment.

Taylor told me he is mostly at peace. He said he has let go of his anger that no one has been held accountable for his wrongful conviction. Instead, he chooses to be excited for the future, for the chance to live “a comfortable life” and to give his son “the opportunities I didn’t have.” His life has changed, but he knows the criminal justice system hasn’t.

“Mark my word,” he said, “I won’t be the last one to be proved innocent.”

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by Steve Mills

The U.S. Has Spent More Than $2 Billion on a Plan to Save Salmon. The Fish Are Vanishing Anyway.

2 years 6 months ago

This article was produced for ProPublica’s Local Reporting Network in partnership with Oregon Public Broadcasting. Sign up for Dispatches to get stories like this one as soon as they are published.

CARSON, Wash. — The fish were on their way to be executed. One minute, they were swimming around a concrete pond. The next, they were being dumped onto a stainless steel table set on an incline. Hook-nosed and wide-eyed, they thrashed and thumped their way down the table toward an air-powered guillotine.

Hoses hanging from steel girders flushed blood through the grated metal floor. Hatchery workers in splattered chest waders gutted globs of bright orange eggs from the dead females and dropped them into buckets, then doused them first with a stream of sperm taken from the dead males and then with an iodine disinfectant.

Salmon at the Carson hatchery are moved toward a guillotine during the process of harvesting their sperm and eggs, which will be used to breed more than a million baby fish. Left to right: Fish are sorted by sex and tagged to track their DNA. Then the eggs are removed and fertilized with sperm.

The fertilized eggs were trucked around the corner to an incubation building where over 200 stacked plastic trays held more than a million salmon eggs. Once hatched, they would fatten and mature in rectangular concrete tanks sunk into the ground, safe from the perils of the wild, until it was time to make their journey to the ocean.

The Carson National Fish Hatchery was among the first hatcheries funded by Congress over 80 years ago to be part of the salvation of salmon, facilities created specifically to replace the vast numbers of wild salmon killed by the building of dozens of hydroelectric dams along the Northwest’s mightiest river, the Columbia. Tucked beside a river in the woods about 60 miles northeast of Portland, Carson has 50 tanks and ponds surrounded by chain-link fencing. They sit among wood-frame fish nursery buildings and a half-dozen cottages built for hatchery workers in the 1930s.

Today, there are hundreds of hatcheries in the Northwest run by federal, state and tribal governments, employing thousands and welcoming the community with visitor centers and gift shops. The fish they send to the Pacific Ocean have allowed restaurants and grocery seafood counters to offer “wild-caught” Chinook salmon even as the fish became endangered.

The hatcheries were supposed to stop the decline of salmon. They haven’t. The numbers of each of the six salmon species native to the Columbia basin have dropped to a fraction of what they once were, and 13 distinct populations are now considered threatened or endangered. Nearly 250 million young salmon, most of them from hatcheries, head to the ocean each year — roughly three times as many as before any dams were built. But the return rate today is less than one-fifth of what it was decades ago. Out of the million salmon eggs fertilized at Carson, only a few thousand will survive their journey to the ocean and return upriver as adults, where they can provide food and income for fishermen or give birth to a new generation.

Listen to the OPB Stories Listen to "The US has spent more than $2B on a plan to save salmon but the fish are vanishing anyway" on Spreaker. Listen to "As climate change threatens hatchery salmon, reforms and investments are sorely lacking" on Spreaker.

Federal officials have propped up aging hatcheries despite their known failures, pouring more than $2.2 billion over the past 20 years into keeping them going instead of investing in new hatcheries and habitat restorations that could sustain salmon for the long term. At the largest cluster of federally subsidized hatcheries on the Columbia, the government spends between $250 and $650 for every salmon that returns to the river. So few fish survive that the network of hatcheries responsible for 80% of all the salmon in the Columbia River is at risk of collapse, unable to keep producing fish at meaningful levels, an investigation by Oregon Public Broadcasting and ProPublica has found.

These failures are all the more important because hatcheries represent the U.S. government’s best effort to fulfill a promise to the Northwest’s Indigenous people. The government and tribes signed treaties in the 1850s promising that the tribes’ access to salmon, and their way of life, would be preserved. Those treaties enshrined their right to fish in their “usual and accustomed places.” The pacts between sovereign nations did not stop the U.S. from moving forward with a massive decades-long construction project in the middle of the 20th century: the building of 18 dams that transformed a free-flowing river into a machine of irrigation, shipping and hydroelectric power.

The dams meet nearly 40% of today’s regional electricity needs. But they decimated wild salmon.

Otis Johnson processes freshly caught salmon at a roadside fish stand last August. Johnson, who grew up on the Warm Springs Reservation, said fishing reminds him of his mother’s tribal traditions and it “keeps me out of trouble. The fish keeps me in a good way and they take care of me. They're very sacred.”

Many species of salmon are at or near their lowest numbers on record. Native fishermen say their way of life has been stolen from them and from future generations. But the government didn’t invest in making hatcheries better equipped to grow more resilient and abundant stocks. Instead, officials ushered in endangered species restrictions. They knew that hatchery fish were genetically weaker than wild salmon, so they put limits on the number of hatchery fish that could be released into rivers, where they might spawn with wild fish and weaken the gene pool. These restrictions hampered the productivity of the hatcheries, squeezing tribal fishing even more.

In recent years, salmon survival has dropped to some of the worst rates on record. The numbers of returning adult salmon have been so low that dozens of hatcheries have struggled to collect enough fish for breeding, putting future fishing seasons in jeopardy.

Each passing year of poor returns worsens the outlook for salmon. While salmon runs fluctuate from year to year and this year’s returns have been higher than those of the past few years, human-caused climate change continues to warm the ocean and rivers, and the failure to improve salmon survival rates has left the region’s tribes facing a future without either wild or hatchery fish. Federal scientists project that salmon survival will decline by as much as 90% over the next 40 years.

Left to right: Salmon spawned at Carson National Fish Hatchery are tracked with DNA samples. The harvested eggs are given a tag identifying their mother and moved into trays for hatching.

The federal agencies responsible for more than 200 hatchery programs — including the National Oceanic and Atmospheric Administration, the U.S. Fish and Wildlife Service and the Northwest Power and Conservation Council — have failed to implement recommendations from their own scientists about how to improve outcomes at the hatcheries they support.

Allyson Purcell is the director of West Coast hatcheries for NOAA, which oversees endangered salmon recovery, sets regulations for hatcheries and funds roughly a third of all Columbia River hatchery production. In an interview, she conceded that federal hatchery reform efforts have historically focused on saving wild salmon, but said that her agency is now researching ways to create more resilient hatchery fish.

“As soon as we have actionable science, we will implement changes,” Purcell said. She also acknowledged that hatcheries will need to change to sustain fish populations as the climate continues to change.

“We want to stay nimble,” she said. “In some cases you may want to change the goal of the hatchery. If you find that you need to rely on it to keep a population from going extinct, you’re going to operate that hatchery program differently.”

People like John Sirois, a former chair of the Confederated Tribes of the Colville Reservation in northeast Washington, have been waiting a long time for changes. Nearly a decade ago, he cut the ribbon at the opening of the Chief Joseph Hatchery, 545 miles upriver from the mouth of the Columbia. That hatchery, one of 23 facilities overseen by the Northwest Power and Conservation Council, opened in 2013.

But it is now struggling to return enough fish, and the upper Columbia’s spring Chinook population has fallen to one of its lowest levels on record. Last year the Colville Tribes, whose diet was once as much as 60% salmon, caught less than one fish for each of its 10,000 people.

“Despite all the efforts that we’ve done, the salmon run is looking pretty on the ropes.” Sirois said. “If it’s more difficult for hatcheries to produce salmon, it is the beginning of the end.”

John Sirois of the Colville Tribes looks over an area where salmon swam before the Chief Joseph Dam was built. Fish have been released here ceremonially, but the dam blocks them from reaching the ocean, where salmon finish maturing, so the fish released here cannot rebuild the river’s population. “A Finger in a Dike”

There are many reasons that Columbia River salmon die, whether they were born in the wild or in hatcheries. Millions don’t survive their trip down the river, which has become a gantlet of dams and slackwater reservoirs, hot and polluted waters, and invasive predators. Millions more die in the ocean or get snared by commercial fishing ships, ending up as grocery fillets or pet food before they can return upriver toward their spawning grounds.

Some die-off is natural. But the dismal survival rates of salmon bred on the Columbia today are neither natural nor sustainable.

Oregon Public Broadcasting and ProPublica examined the yearly survival of eight Columbia River Basin hatchery populations of vulnerable salmon and steelhead trout, detected at a federal dam on their way out to sea as juveniles and on their way back upriver as adults. This dam-to-dam measure provides one of the only consistent indexes of how well salmon are surviving. But it’s a high-end estimate, because it only measures how well they’re surviving in the ocean. These numbers don’t account for the millions of juvenile fish that die migrating downriver before they’re counted at the dam or the many adults who pass the dam but die before reaching their destination upriver. Our analysis of the publicly available data provides a high-level and easily understandable snapshot of hatchery performance; previously, assessing the health of the hatchery system would have required combing through thousands of pages of government reports and academic research.

Even with this generous estimate, however, the survival rates of these hatchery fish have been well short of the established goals for rebuilding salmon populations, according to the Oregon Public Broadcasting and ProPublica analysis.

Hatcheries Aren’t Rebuilding Salmon Populations in the Columbia Basin Note: Survival rates are for four vulnerable populations of Chinook salmon that were released from hatcheries between 2014 and 2018, the most recent years for which complete data is available. Source: Columbia Basin Research estimates, map data (c) OpenStreetMap contributors. (Irena Hwang/ProPublica)

According to our analysis, salmon populations released from 2014 to 2018, the most recent years for which complete data was available, had some of the worst survival rates on record. In that time period, none of the eight populations had average returns exceeding 4%, the threshold necessary for a population to recover, which was adopted by the Northwest Power and Conservation Council and vetted by independent panels of experts. But even in the previous six years, when ocean conditions were favorable for salmon, only two achieved average returns above 4%.

That 4% goal was established for wild populations, but in a 2015 report to Congress, 17 scientists recommended that survival rates of hatchery fish would have to be high relative to wild fish “to effectively contribute to harvest and/or conservation.”

Note: Survival rates are for two threatened populations of steelhead trout that were released from hatcheries between 2014 and 2018, the most recent years for which complete data is available. Source: Columbia Basin Research estimates. (Illustration by Irena Hwang/ProPublica; source photo by John R. McMillan)

Most hatcheries, however, aren’t even aiming to meet the council’s recovery goals. Some aim to get less than half a percent of their fish back. But lately, they aren’t even getting that.

“It’s not self-sustaining. We don’t have the numbers,” said Aaron Penney, a member of the Nez Perce who spent more than 20 years managing his tribe’s hatchery on the Clearwater River in Idaho. Penney, now a biologist for the Coeur d’Alene Tribe in northern Idaho, says raising hatchery fish in worsening river and ocean habitat is like “putting a finger in a dike to stop a leak.”

Records obtained from NOAA show that over the past five years, dozens of hatchery programs have fallen short of their typical production levels, some by more than half. Some have tried to address that shortfall by capturing more wild fish to breed. Others used eggs that were shared by nearby hatcheries.

Note: Survival rates are for vulnerable populations of coho and sockeye salmon that were released from hatcheries between 2014 and 2018, the most recent years for which complete data is available. Source: Columbia Basin Research estimates. (Irena Hwang/ProPublica)

But major shortages across the Columbia basin in 2018 and 2019 left hatcheries scrambling to find enough egg-bearing female fish. Tribal hatcheries, which are located farther upriver where salmon face a longer, harder journey, bore the brunt. They’ve been planning for shortages to become commonplace as rivers and the Pacific Ocean get hotter.

In 2019, Idaho’s Nez Perce Tribe needed an influx of hundreds of fish from hatcheries 300 miles away in Washington to keep breeding salmon. Staff at the time called it a “dire emergency.”

In central Washington, the Yakama Nation’s share of eggs was so small that its hatchery on the Klickitat River was down to 30% of the number of fish it usually raises.

“It’s impacting the Indians a lot, man,” said Shane Patterson, a member of the Yakama Nation who fishes the Klickitat and works as a catch monitor for the tribe. “The seasons ain’t as long as they used to be, they’re smaller runs, everything.”

Between spring and fall, Patterson and his friend and fellow tribe member Chance Fiander spend evenings atop plywood scaffolds built into the rock face of the Klickitat River canyon, plunging dip nets 30 feet into the waters, awaiting the jolt of a salmon fighting its way upstream.

Shane Patterson of the Yakama Nation, right, uses a dip net to fish for salmon on the Klickitat River. He said a lot of people rely on fishing for income and to feed their families. “And it just ain’t like it used to be,” he said.

The Klickitat hatchery provides Patterson and Fiander fish to catch for their families and for the tribe’s longhouses, spiritual gathering centers that need salmon for weekly ceremonies, annual feasts, funerals and coming-of-age ceremonies known as name givings.

This April, there were so few spring Chinook salmon for the annual spring feast Patterson attended — held to honor the first foods of the new year — that it took donated bags of frozen salmon to feed everyone at the longhouse that day.

“That defeats the purpose. That ceremony was for that first food coming up the river,” Patterson said. “It’s just … kinda backwards.”

Power and Fish

From the very start, federal agencies had evidence of hatcheries’ failures. But they didn’t leave themselves any other solutions.

Within two decades of enshrining in treaties the right of Northwest tribes to fish for salmon as they always had, the United States government had let commercial fishing deplete salmon runs to the point that the nation’s fish commissioner was devising ways to produce more of them.

In 1872, Spencer Baird, the founder of the agency now known as NOAA Fisheries, built the West Coast’s first salmon hatchery in California and three years later recommended the same solution for the Columbia River’s problems with habitat loss and overfishing.

Baird Station, on Northern California’s McCloud River, was the first federal fish hatchery. Seen here in a photo from 1922, the station was named after NOAA Fisheries founder Spencer Baird, an early champion of hatcheries. (Freshwater and Marine Image Bank)

Baird told fishermen and cannery operators that artificial production would “maintain the present numbers indefinitely, and even … increase them.” Oregon fishing commissioners seized on the idea, declaring that salmon required less labor and care to raise than vegetables.

But the early hatchery efforts faded. By the 1920s, the first analysis of hatcheries at the time found “no evidence” to suggest hatcheries had effectively conserved salmon. Similar research reached the federal Department of Fisheries, a precursor to what is now NOAA Fisheries, in 1929. Amid the poor results and the Great Depression, state and federal fisheries agencies largely abandoned costly large-scale efforts to breed salmon.

Overfishing was the first blow to salmon populations. Dams were the biggest. Between 1933 and 1975, 18 dams were built on the Columbia and Snake rivers. Nearly half of all salmon habitat in the Columbia basin was completely blocked; the rest was drastically altered as humans turned a free-flowing river system into a series of reservoirs and built farms and communities.

The dams destroyed the river’s most important tribal fishing sites and pushed many populations of wild salmon nearly to the point of extinction or wiped them out entirely. But despite the hatcheries’ failures in the early days, the federal government turned to them after damming up the Columbia and the Snake. It was the best offer officials made to the tribes that depended on salmon.

Left: Native Americans fish for salmon from traditional platforms at Celilo Falls, Oregon, in 1941. The falls and traditional fishing grounds were flooded in 1957 by the opening of the floodgates of the newly completed Dalles Dam. Right: Grand Coulee dam construction, 1936. (Library of Congress)

The federal government laid out its position in a 1947 memo, signed by the secretary of the interior: “The overall benefits to the Pacific Northwest from a thorough-going development of the Snake and Columbia are such that the present salmon run must be sacrificed. Efforts should be directed toward ameliorating the impact of this development upon the injured interests and not toward a vain attempt to hold still the hands of the clock.”

Biologists for the Fish and Wildlife Service knew at the time there was no evidence to suggest hatcheries could make up for the impact. But four of those scientists, including the author of the 1920s research casting doubt on hatcheries, suggested hatcheries anyway; after seeing the government’s plans for dam construction, biologists knew that preserving existing salmon runs would be essentially impossible.

Hatcheries again failed to offset the damage. By the late 1970s, hatcheries were releasing three times more juvenile salmon than scientists estimate the wild fish ever produced themselves. But fish counts at federal dams showed that while tens of millions more juvenile salmon were heading downriver each year, the number of returning adult salmon kept dropping.

Part of the problem was how the fish were bred. Salmon have lasted millions of years, across multiple ice ages, because of the diversity in their populations. But in the hatcheries, that diversity started to disappear and fish developed traits that make it harder for them to survive in the wild.

Rob Jones, the former head of NOAA’s hatchery division, said the agencies running hatcheries have known this for as long as he can remember, which is why they have always depended on wild populations to bolster their stocks.

“Without infusing hatcheries, from time to time, with better-fit fish,” Jones said, “hatchery fish might taper off and not return anymore. Because their fitness is just so poor.”

In the early 1990s, several salmon populations landed on the endangered species list. Scientists and environmental advocates began to argue that hatchery fish posed a threat to wild salmon recovery.

“Fisheries scientists, by promoting hatchery technology and giving hatchery tours, have misled the public into thinking that hatcheries are necessary and can truly compensate for habitat loss,” Ray Hilborn, a prominent fisheries scientist at the University of Washington, wrote in a 1992 paper. “Hatchery programs that attempt to add additional fish to existing healthy wild stocks are ill advised and highly dangerous.”

By the end of the 1990s, a panel of scientists for the Northwest Power and Conservation Council concluded that hatcheries had failed in their objective to mitigate habitat damage and were harming wild populations by competing for food and spreading weaker genes. And, they noted, other scientific reviews had reached the same conclusion.

“Scientists and fish culturists should be concerned about the findings of three independent scientific panels that concluded hatcheries have generally failed to meet their objectives,” they wrote.

Congress created a task force to reform hatcheries in 2000, aiming to minimize competition between wild and hatchery fish and to keep weaker hatchery-fish genes out of the wild. Soon, hatcheries faced limits on which fish they could breed, how many wild fish they could capture, how many fish they could release, and how many of their fish were allowed to escape to spawn in the wild. Each hatchery program now requires a genetics management plan.

“There was a lot of work on genetics the past couple of decades, and that’s because that’s probably where our biggest concern was,” said Purcell, who succeeded Jones as head of NOAA hatcheries.

But as it focused on wild genetics, NOAA’s reforms largely ignored how hatcheries grow and release their fish. The agency did not require updates to outdated facilities, nor did it order changes to how hatchery fish were penned, fed or released.

Tribes had begun experimenting with new methods of breeding in their own hatcheries. At its hatchery in Cle Elum, Washington, the Yakama Nation painted concrete tanks to match streambeds, tried filling them with woody debris found in streams, and used underwater feeding tubes so fish didn’t get used to being fed at the surface by humans. They bred captured wild fish instead of hatchery stock and used a collection of earthen ponds to acclimate fish to the wild before they’re released. They documented some success at increasing abundance while minimizing the harm to wild genetics.

At the Melvin R. Sampson Coho Hatchery in Ellensburg, Washington, coho salmon from tribal collection points are used as breeding stock to maximize genetic diversity.

But endangered species regulations and environmental lawsuits alleged that releases of hatchery fish were threatening wild salmon and compromising their recovery. Tribes found that their only tool for putting fish back into rivers — and for exercising their treaty rights — was under threat.

The National Congress of American Indians in 2015 issued a resolution calling for the protection and maximization of hatchery production. In it, the tribes said that salmon production had been “reduced, restricted, and threatened” by endangered species protections, lack of funding and inaction by NOAA, adding that “a disproportionate burden of conservation” had been “placed on the tribal harvest and hatchery requirements.”

Purcell said NOAA has for many years been backlogged in reviewing hatcheries to make sure their breeding programs adequately protected wild fish. Those delays left hatcheries exposed to lawsuits from environmental groups that have blocked or reduced releases of hatchery fish. Purcell said the agency to date has reviewed about 75% of hatchery programs across Oregon, Washington, California and Idaho.

Purcell acknowledged concern for wild fish has led to some hatchery reductions, but said the agency has tried to avoid that when possible for the sake of tribes.

“NOAA Fisheries understands how important hatchery programs are to the tribes,” she said, “so we work hard to find solutions that work for all involved.”

“It’s Not Hopeless”

When salmon return each June to north-central Washington’s Icicle Creek, Sirois, the former chair of the Colville Tribes, drives with a rod and tackle box to the Leavenworth Fish Hatchery, where he sleeps in his car so he can be there when the sun comes up.

Sirois fishes at Icicle Creek at the Leavenworth Fish Hatchery, an area that the Wenatchi people had to fight to regain access to. “I’m standing on the shoulders of those ancestors, but with that, there’s a lot of responsibilities,” Sirois said. “You need to come fish and you need to be a part of this life, this walk, this way.” (Tony Schick/Oregon Public Broadcasting)

He’ll spend a weekend casting for salmon from Icicle Creek. During last June’s run, Sirois fished beside his cousin, with his young nephew perched atop a concrete bridge, watching from above. Across the water, his friend Jason Whalawitsa was fishing with his son atop scaffolds they had built.

The Wenatchi people, part of 12 bands making up the Colville Tribes, spent decades battling in court to reclaim their legal right to fish for salmon in Icicle Creek.

Now, they worry how long the supply of fish will last.

“Our warmer ocean waters don’t allow our fish to get here,” Whalawitsa said.

Salmon numbers have always fluctuated, but salmon biologists say the latest downturn is different: Climate change is making temperatures increasingly inhospitable to salmon, which need cold water. They’ve died by the hundreds of thousands in unusually hot rivers. And in warmer oceans, fish starve without adequate food.

A 2021 study led by NOAA ecologist Lisa Crozier found that warming ocean temperatures could cause salmon survival to decline by roughly 90% within the next 40 years.

“We can imagine all kinds of new situations that could occur. Unfortunately, most of them don’t seem to be favorable for salmon,” Crozier said.

The obstacles to saving salmon are myriad. Large swaths of the Columbia River Basin remain impaired by the effects of excessive heat and chemical pollution, and biologists say habitat restoration efforts are far behind what is needed to give salmon a real chance of rebounding. Advocates of removing the four dams on the lower Snake River to save salmon have gotten the attention of elected officials, but that would only benefit one subset of the basin’s salmon. It wouldn’t help the Wenatchi on the upper Columbia. And salmon there and elsewhere would still need a major boost in fitness to survive the ocean journey.

But Crozier’s study also recommended “desperately needed” actions to restore freshwater habitat, improve river flows and change hatchery practices to give salmon a better chance in the ocean.

“My biggest concern about publishing that paper was that people would say, ‘Oh, salmon are doomed. Let’s give up on them,’” Crozier said. “It’s not hopeless.”

Tanks filled with thousands of coho salmon at the Melvin R. Sampson Coho Hatchery, which aims to breed fish in a more sustainable way that maximizes genetic diversity.

Barry Berejikian, the top hatchery scientist at NOAA’s Northwest Fisheries Science Center, agrees. He points to changes in fish tanks, water temperature and feeding schedules that can all increase hatchery fish’s survival odds. Facilities could also adjust how many fish are released and when: Longtime hatchery philosophy has been to flood the river with fish. But scientists have found that overloading the environment with too many fish can slow population growth, and that varying release times gives fish a better chance of survival.

As climate change damages the habitats of wild salmon, hatchery fish become all the more important.

“As we increasingly rely on them, we need to do them better,” Berejikian said of hatcheries. “Right now, the emphasis is not there.”

Officials at federal agencies governing hatcheries said they know salmon survival needs to improve, but demurred when asked about adopting the strategies Berejikian mentioned.

Most production at the 13 hatcheries run by the Fish and Wildlife Service is governed by legal agreements or settlements, giving the agency little flexibility, spokesperson Brent Lawrence said. He touted the agency’s success in keeping fish alive while they’re at the hatchery and said that fish survival in the wild is largely outside the agency’s control.

“We strive to release the healthiest salmon possible from our hatcheries to give the fish the best chance of survival,” Lawrence said.

Guy Norman, chair of the Northwest Power and Conservation Council, acknowledged changes are needed at hatcheries to produce stronger fish. But the council’s latest program called for no such changes. Norman said the council would help facilitate research and improvements, but that it has a limited role in prescribing operations at the state and tribal hatcheries in its program. However, the council has ordered changes in the past, such as stipulating that all hatcheries funded through its program needed to follow recommendations for protecting wild salmon.

Purcell, the NOAA hatcheries official, said her agency is limited in what it can require of hatcheries if the changes aren’t directly impacting an endangered population. And, because most of the region’s hatchery facilities are between 40 and 100 years old, she said recommended improvements like more natural rearing conditions “are not an option without a major rebuild.”

According to documents obtained from NOAA, much of the Columbia River Basin’s hatchery tanks and rearing facilities are near the end of their lifespans, and the basin’s capacity for hatchery production has diminished as failing infrastructure has been decommissioned or put into limited operation.

“That creates a lot of limitations to what we can implement,” Purcell said.

Existing operations at Northwest hatcheries are already underfunded by hundreds of millions of dollars, and in some cases parts of their infrastructure have literally crumbled and killed thousands of fish in the process.

At the Lookingglass Hatchery in northeast Oregon, outdated concrete “fish ladders” meant to help salmon escape upstream to spawn are instead blocking them, but the hatchery doesn’t have the $3.4 million needed to fix the problem. Meanwhile, the Lyons Ferry Hatchery in southeast Washington lost 250,000 fish this year because of a crumbling rubber gasket. Last year, it spent more than $5 million on a burst pipe and a pump failure.

In all, records show staff at federally funded hatcheries have identified more than $320 million in repairs and equipment upgrades they can’t make unless the government provides funding.

Congress has kept hatchery funding essentially flat for more than a decade, leaving those needs unaddressed. Sen. Maria Cantwell, a Democrat from Washington, sought to include $400 million for hatcheries as part of President Joe Biden’s Build Back Better plan. It would have been the single largest expenditure on hatcheries ever. That effort failed along with the bill. Cantwell did not respond to requests for comment.

Overhauling hatcheries to withstand climate change will cost hundreds of millions more. For instance, the Fish and Wildlife Service predicts that warming waters will lead to more disease and harm the growth of its fish, and that droughts could lead to water shortages on site. The agency has not yet requested additional funding to address what it calls “climate vulnerabilities” at Leavenworth or elsewhere.

More than a decade ago, Whalawitsa and his son Chris began fishing beside the Leavenworth National Fish Hatchery, where the current system only supports about half the promised production levels.

Whalawitsa and Chris fish hook-and-line by day and with traditional dip nets all night, trying to fill orders for tribal elders, family members and sick neighbors to help sustain them through winters on the reservation.

“We’re doing the best we can to keep this alive,” Whalawitsa said. “All I can do is pray and hope that this gets better because I want to see my grandchildren fish this.”

When they first started, they’d easily fill five coolers in a single trip and end up racing back and forth to the reservation to make room for more.

Now, they say, they’re lucky to fill one.

About the Data: How We Analyzed Salmon and Steelhead Trout Survival

Oregon Public Broadcasting and ProPublica obtained data from Columbia Basin Research at the University of Washington describing fish in several salmon and steelhead trout populations that were embedded with electronic tags. Tagged fish can be detected by special technology, often at dams, and tag data can provide a window into fish migration and survival. Our approach took a basin-wide view of the hatchery program to create a meaningful, accessible and representative picture of hatchery efforts to support vulnerable salmon and steelhead populations in the region.

We focused our analysis on eight fish populations, all of them Columbia River Basin stocks that are highly vulnerable and monitored by the National Oceanic and Atmospheric Administration with the goal of restoring populations to healthy and harvestable levels. Focusing on fish populations that originated in the middle and upper Columbia and Snake rivers had two benefits: First, these were areas that were significantly impacted by the building of hydropower dams in the basin, and second, these were regions for which data was available. The upper Columbia River spring Chinook and Snake River sockeye populations are listed as endangered under the 1973 Endangered Species Act. The Snake River fall Chinook, Snake River spring/summer Chinook, Snake River steelhead and upper Columbia River steelhead populations are listed as threatened. The Mid-Columbia Coho Restoration Program includes all coho released in the Wenatchee and Methow basins, and the population was considered by NOAA for designation as threatened or endangered, as were upper Columbia River summer/fall Chinook; though these populations ultimately were not listed, they are still monitored by Columbia Basin Research and NOAA. These eight monitored populations are supported by more than 30 artificial propagation programs along the Columbia River and its tributaries.

The University of Washington’s Columbia Basin Research center provides data about these eight populations at any one of three federal dams: Bonneville Dam, Lower Granite Dam and McNary Dam. The tags, called passive integrated transponders, help generate data including the number of tagged juveniles released each year on their outbound journey downriver and the number of fish from each release year that were later detected as adults returning upriver from the ocean. Comparing these two quantities taken at Bonneville Dam, the nearest dam to the ocean on the Columbia River, provides an estimate of how many fish survived the ocean.

We calculated survival rates across two time periods: 2008-2013 and 2014-2018. During the first period, coastal conditions and climate conditions in the Pacific Ocean were particularly favorable for salmon and steelhead trout. Conditions changed around 2014, the beginning of our most recent span of data. Though Chinook, coho, sockeye and steelhead trout all mature at different times and follow distinct migration patterns, the majority of adult fish from these species return to fresh water to spawn after four years in the ocean, which is why we ended our analysis with the 2018 population: Any juveniles released after that may not yet have had time to return as adults, so that was the most recent population for which data was reliable.

We compared survival rates to benchmarks established by the Northwest Power and Conservation Council. In 2003, the council set a goal of 4%, on average, of all juvenile salmon who headed for the ocean would return to fresh water as adults, although it allowed for a range of between 2% and 6% annually. According to the council, these rates should be sufficient to ensure the recovery of the salmon species that are listed as endangered and to help reach the council’s goal of 5 million total salmon and steelhead returning to the Columbia and its tributaries each year. We used this approach for a couple key reasons. While individual hatcheries assess their programs using a variety of measures, we found that these assessments aren’t standardized and very few people are looking at the overall success of the hatchery system; the 4% benchmark allows us to look at the health of the system as a whole. We also listened to the advice of experts in looking at the data across multiple years because the results from any given year are too volatile to be meaningful.

In 2008-2013, only two of the eight populations we examined had average returns exceeding 4%: mid-Columbia coho and Snake River fall Chinook. In 2014-2018, none of the populations had average returns exceeding 4%. For the statistically minded, some further notes: To characterize the uncertainty in average survival rates for the two time periods, we ran bootstrapping experiments on the data using 1,000 trials within each time period to calculate 95th percentile confidence intervals around the bootstrap mean. The confidence intervals for three additional populations (Snake River spring/summer Chinook, upper Columbia River summer/fall Chinook and upper Columbia River steelhead) included the 4% recovery goal between 2008 and 2013. Between 2014 and 2018, the confidence interval for one population, the mid-Columbia coho, included the 4% minimum threshold.

It is important to note that fish biologists evaluate salmon and trout using a variety of performance indicators and metrics, with ocean survival being only one of them. Other metrics include the total number of juvenile fish released by hatcheries, the total number of adult fish returning to fresh water, the proportion of adult returns that started as hatchery juveniles, the state of local habitats, and even fish genetics. However, many of these measures are complex and difficult to compare across a variety of fish management practices, geographies and fish populations. By contrast, estimates of survival are readily available and offer a relatively holistic picture of how a population is doing. They also allow us to see the return on investment of the resources that have been allocated to hatcheries programs — a crucial measure given the limited amount of money available for this effort.

This estimate of ocean survival has some caveats. Only a portion of the salmon released each year are tagged. Furthermore, only a fraction of juvenile salmon survive the journey from release sites far upstream of Bonneville to the dam, and not all adult salmon that make it to Bonneville on the return trip will survive the full freshwater journey back through the hydropower system. That means the estimates drawn from these numbers are generous — the highest that they’ll be on the journey upriver. Nevertheless, these ratios of adult to juvenile tag detection can be considered an index that reflects the trends in populations that can be compared across species, migration patterns and release sites.

Help Us Understand Pacific Northwest Salmon and Treaty Rights

Maya Miller contributed reporting.

by Tony Schick, Oregon Public Broadcasting, and Irena Hwang, ProPublica, photography by Kristyna Wentz-Graff, Oregon Public Broadcasting

The Hypnotherapist and Failed Politician Who Helped Fuel the Never-Ending Hunt for Election Fraud in Wisconsin

2 years 6 months ago

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Jay Stone grew up in the rough-and-tumble world of Chicago ward politics, the son of a longtime city alderman. But his own forays into politics left him distrustful of Chicago Democrats.

When he ran for alderman in 2003, he was crushed at the polls after party leaders sent city workers out to campaign against him. Even his own father didn’t endorse him.

Then when Stone sought the mayor’s office in 2010, he only mustered a few hundred of the 12,500 signatures needed to qualify for the ballot. He filed a federal lawsuit over the requirement and lost.

His father, Bernard Stone, who held office for 38 years, once told the Chicago Tribune: “My son is very good at what he’s trained to do. And that’s not politics.”

Jay Stone’s training was in hypnotherapy, and he eventually walked away from Chicago politics, carving out a living using hypnosis to help people with anxiety, weight gain, nicotine addiction and other issues. Only in retirement, and after a move to Wisconsin, did he finally find his political niche.

In 2020, Stone played a crucial, if little-known, role in making Wisconsin a hotbed of conspiracy theories that Democrats stole the state’s 10 electoral votes from then-President Donald Trump. The outcry emanating from Wisconsin has cast Facebook founder Mark Zuckerberg as a force of untoward political influence and helped create a backlash against using private grants, including large donations from Zuckerberg, to assist election officials across the country.

In Wisconsin, Stone has finally been embraced politically, by activists and politicians who, like him, didn’t approve of the so-called “Zuckerbucks” or of big-city Democratic mayors. They, too, are unhappy with the way the 2020 presidential election was run in Wisconsin and how it turned out. And they, too, show no inclination of giving up, even when their claims have been rejected and other Republicans have told them it’s time to move on.

“The best part of getting involved in politics in Wisconsin is the wonderful people I’ve been meeting,” Stone said in an interview. “They’re just a great group of men and women that I admire and respect.”

The questioning of the legitimacy of President Joe Biden’s 20,000-vote victory in Wisconsin continues thanks to Stone and others who have emerged to take on outsize roles after the election. Among them: a retired travel industry executive who has alleged voter fraud at nursing homes. Ten alternate GOP electors who signed documents to try to subvert the certification of Biden’s election. And some state legislators who are still looking for ways to hand the state to Trump, a year and a half after the election.

Stone hasn’t garnered much public attention, but records indicate that in the summer of 2020 he was the first person to complain to state authorities about grant money accepted by local election officials. The funds were earmarked for face masks, shields and other safety supplies, as well as hazard pay, larger voting facilities, vote-by-mail processing, drop boxes and educational outreach about absentee voting.

Stone, however, saw the election funding, which came from a Chicago nonprofit, as a way to sway the election for Biden by helping bring more Democratic-leaning voters to the polls in Wisconsin’s five largest cities.

The Wisconsin Elections Commission rejected Stone’s claim last year, on the grounds that he didn’t live in any of the cities he mentioned and that the complaint did not allege any violations that the commission had the authority to investigate. A separate complaint Stone filed with the Federal Election Commission, in which he objects to the Zuckerberg money, has not been resolved.

Nonetheless, the idea that the election was somehow rigged lives on.

Chief among the election deniers is Michael Gableman, who served on the state Supreme Court for a decade. A Trump ally, Gableman was named as special counsel by the GOP-controlled State Assembly to investigate the legitimacy of Biden’s victory in Wisconsin. Not only did Gableman give Stone’s accusations a platform, he took them even further. In his review for the Assembly, Gableman labeled the grants a form of bribery.

Gableman expressed his admiration for Stone during a March interview on the “Tucker Carlson Today” show, which streams online.

It’s “a private citizen, a guy named Jay Stone, who really deserves a lot of credit,” Gableman said, referring to questions about the election grants.

“He saw all of this coming,” Gableman said. “And he’s not a lawyer. I don’t know what his particular training is — he’s trained in the medical field. He filed a complaint with the Wisconsin Elections Commission back in August of 2020, well before the election. And he foresaw all of this, he foresaw the partisan nature of all of the Zuckerberg money and all of the Zuckerberg people coming in to influence the election.”

Gableman, who has not responded to requests for an interview, had hired Stone as a paid consultant for his review by the time he appeared on Carlson’s show.

But that’s not the only thing keeping Stone from a quiet retirement in Pleasant Prairie, not far from the Illinois border, where he grows his own fruits and vegetables and heats his home only with firewood. Once again, he’s got his eyes on political office. This time he’s running for the Wisconsin State Senate.

The Chicago Connection Items for sale at the H.O.T. Government meeting (Nathanial Schmidt, special to ProPublica)

In the summer of 2020, cities across the U.S. were canceling Fourth of July firework celebrations. Public health departments were scrambling to put contact tracing measures in place to track the spread of COVID-19. Movie theaters remained shuttered. Vaccines were still undergoing testing.

Against this backdrop, the Center for Tech and Civic Life, a nonprofit based in Chicago, decided to get involved. Its stated mission is to ensure that elections across the country are “more professional, inclusive and secure.”

The group approached the mayors of Wisconsin’s five largest cities — Milwaukee, Madison, Green Bay, Kenosha and Racine — and encouraged them to draw up a “Safe Voting Plan” outlining how they would spend more than $6 million in grant money to make it easier for people to vote while also limiting their exposure to the highly contagious coronavirus.

Wisconsin’s April elections, including the presidential primary, had been a near-disaster. The state’s Democratic governor and GOP-controlled legislature bickered over whether to postpone the balloting. Election offices were deluged with requests for absentee ballots. National Guard troops stepped in to replace poll workers too scared to volunteer. Polling places closed or relocated. Some voters waited in long lines for hours.

The Safe Voting Plan envisioned a smoother election that November. The goals were to keep voters safe and educate them about how to cast a ballot properly, whether in person or by mail. The plan also expressed the desire to ensure the right to vote “in our dense and diverse communities.”

Green Bay, for example, proposed using $15,000 to partner with “churches, educational institutions, and organizations serving African immigrants, LatinX residents, and African Americans” to help new voters obtain documents needed to get a valid state ID that they could show at the polls or to get an absentee ballot.

The Center for Tech and Civic Life awarded the $6.3 million to Wisconsin’s five largest cities in early July 2020. That’s when a friend of Stone’s sent him a link to a newspaper article about the grants.

“Within 10 minutes, I knew this was a scam, because they were targeting the Democratic strongholds in the state of Wisconsin,” said Stone.

Stone recognized that the organization’s address on Chicago’s Magnificent Mile was in the same building that had once housed Barack Obama’s campaign headquarters, which he felt confirmed his instincts.

He took exception to the proposed outreach to communities that traditionally vote Democratic, saying such efforts are the responsibility of candidates and parties, not municipal election workers. On Aug. 28, 2020, he fired off a 27-page complaint to the Wisconsin Elections Commission, which included 167 exhibits.

The Center for Tech and Civic Life “exploited COVID-19” to help Democrats, Stone wrote. “All of CTCL’s $6.3 million expenditures will increase voter turnout in Wisconsin cities that are heavily Democratic and increase the likelihood that Democrat Joe Biden will win Wisconsin’s 10 electoral votes.”

Less than a week later, CTCL made a major announcement: It had received a $250 million donation from Zuckerberg and his wife, Priscilla Chan. The couple later added an additional $100 million. CTCL’s previous funding had come from a variety of foundations.

Ultimately, CTCL awarded grants to more than 2,500 elections offices across 49 states, including rural parts of Wisconsin. The sums included $5,000 to small communities such as Ralls County, Missouri, and $10 million each for the city of Philadelphia and for Fulton County, Georgia, which encompasses most of Atlanta.

In an interview, Stone said he wouldn’t have objected if the grants had been awarded to each of Wisconsin’s 72 counties — with every county getting an equal amount per registered voter.

According to a ProPublica analysis, the biggest municipalities in Wisconsin received the most money and had higher per capita grants than smaller places like Waukesha, Brookfield and Fond Du Lac, which all had a history of voting for Trump. For instance, the per capita figure for Milwaukee was more than 10 times that of nearby Waukesha.

An analysis by Ballotpedia, a nonprofit focusing on elections, found that Wisconsin, Pennsylvania, Georgia and Michigan — swing states that ended up in the Biden column — received some of the highest per capita grants from CTCL. However, it’s nearly impossible to discern what may have turned the tide in those states and whether turnout was affected by the grant money, a motivation to vote against Trump, or other factors.

CTCL was formed in 2014. One of its founders, Tiana Epps-Johnson, was named an Obama Foundation fellow in 2018, providing her with leadership training and other resources to help her in her work. She has described CTCL as nonpartisan, but Stone said the Obama Foundation connection suggests otherwise.

Epps-Johnson, who is CTCL’s executive director, did not respond to a voice message left on her direct line, but the group replied with a statement saying the grant money was available to all parts of the country. “Every eligible local election office that applied was awarded funds,” CTCL stated.

The center also defended its actions in a lawsuit the Trump campaign filed against the Wisconsin Elections Commission; the suit alleged, in part, that the state election commission had improperly supported the five cities’ plan to promote expanded mail-in voting.

In an amicus brief in that case, CTCL wrote: “Most of those funds were used to purchase personal protective equipment for voters and election workers, to recruit and train additional staff, to provide improved security, to establish in-person polling places, to process mail-in ballots, and to ensure emergency preparedness. CTCL’s program thus helped officials throughout the nation to run secure, lawful, and efficient elections for all Americans.”

A federal judge appointed by Trump found no merit in the former president’s case and dismissed it.

Zuckerberg also denies having hidden motives in funding nonprofits that targeted voting issues. His spokesperson Brian Baker said in an email to ProPublica that Zuckerberg and his wife stepped in when “our nation’s election infrastructure faced unprecedented challenges” and the federal government “failed to provide adequate funds.” The goal, Baker said, was to “ensure that residents could vote regardless of their party or preference.”

When Wisconsinites went to the polls in November 2020, there were far fewer issues with people having trouble casting a ballot or having to wait in long lines than there had been in the spring election.

Jay Stone’s Grievances “We have to fight for changes with the Wisconsin Elections Commission, because the way it is currently going we’re not going to have fair elections, and it’s going to be hard for us to elect honest candidates,” Jay Stone told the H.O.T. Government gathering. (Nathanial Schmidt, special to ProPublica)

Stone’s skepticism was deeply rooted. His own family and his political failures were shaped by Chicago politics, giving him a close-up view of the unseemly tactics of loyalists associated with Democratic rule under Chicago Mayor Richard J. Daley and then, to a lesser extent, his son Richard M. Daley.

Running for 32nd Ward alderman on Chicago’s North Side in 2003, Stone preached good government, transparency and election reform. He lost. Testimony in a 2006 federal corruption trial involving top Daley administration officials described how party bosses ordered city workers to campaign for Stone’s opponent, the sitting alderman.

“They wanted a puppet they could control,” Stone said.

After his election defeat, Stone filed a claim against the Daley administration as part of a class-action suit seeking compensation for damages related to political patronage. A federal monitor awarded him $75,000 based on Stone’s claims about city workers forced to campaign against him. His efforts taking on the Daley machine earned him a description as a “passionate independent” from a reporter for the Chicago Reader, an alternative weekly.

Reflecting on the experience, Stone said that even his father was unwilling to endorse him for fear of political retribution. (Stone’s father died in 2014. Jay Stone said that despite their political differences, they remained close.)

Undeterred, in 2010 Stone made a bid for mayor, hoping to take on Richard M. Daley, but Daley announced he would not run for a record seventh term.

Stone didn’t obtain enough signatures to qualify for the ballot and sued the city’s Board of Election Commissioners, claiming the requirement was onerous and unconstitutional, designed to keep the machine in power. The courts disagreed, and the case failed.

Stone never won an election in Chicago, but he was able to build a professional life there as a hypnotherapist in private practice. Stone decided to enter the field after earning first an undergraduate philosophy degree and then an MBA. He received a doctorate in clinical hypnotherapy through remote learning from a now-shuttered California institute.

Hypnotherapists are not licensed in Illinois. But the treatment has gained acceptance. According to the National Institutes of Health, hypnosis has been shown to help people manage some painful conditions and deal with anxiety.

Stone sought to help clients visualize a better future, a goal he said he wanted to achieve in politics, too. In hypnosis, Stone said, some of his patients experienced flashbacks to past lives that helped them find peace and change their behavior for the better. He wrote a paper, posted on his website, on the potential to use DNA to prove the existence of past lives.

Science, he noted, always starts with a theory. “And then you have to be able to prove it,” he said.

His theories about elections tend to lump all Chicago Democrats together, so that Michelle and Barack Obama are considered just as capable of unsavory political tactics as the two Daleys who governed Chicago for decades.

Stone maintains that the Obamas have unduly influenced elections through a network of former White House staffers associated with nonprofits Stone believes are inappropriately registering and influencing voters. (He said he soured on Barack Obama long ago because he believed that Obama had failed to confront the Chicago Democratic machine as a U.S. senator.)

He is particularly opposed to the star-studded nonprofit When We All Vote, set up by Michelle Obama to register voters and help “close the race and age gap.” By the 2020 election, more than 500,000 people had started or completed their voter registration process through When We All Vote, according to the group.

“I believe Michelle Obama’s When We All Vote is the most powerful political organization or political machine in the country,” Stone said in a video he posted on Rumble, a video platform that’s popular among some conservatives. “When We All Vote is more powerful than the Democratic National Committee and Republican National Committee combined.”

When We All Vote told ProPublica in an email that it is nonpartisan and works with schools and educators to increase civic engagement and voter participation, saying its “initiatives comply with the letter and spirit of the law.”

Stone filed a complaint with the Wisconsin Elections Commission against the former first lady, alleging criminal violations for offering financial prizes to schools that registered the most voters and for enticing people to early voting sites with food and music. The commission, in a 5-1 vote in April, dismissed the matter “due to a lack of reasonable suspicion” and fined him $500 for filing a “frivolous” complaint. (Stone on Friday appealed that decision in Kenosha County Circuit Court.)

Stone saw the supposed Obama network’s fingerprints on the 2020 election grants offered by the Center for Tech and Civic Life.

And while he measures his words more carefully than Gableman and others who see the 2020 Wisconsin election results as tainted, he clearly is in that camp.

“There was so much, I don’t want to say ‘fraud,’ but there was so much deviation from the election laws and the election norms, it raises serious questions,” he said of Trump’s loss in Wisconsin.

“I don’t think the election was fair and just.”

Allies in Wisconsin The H.O.T. Government meeting in Union Grove (Nathanial Schmidt, special to ProPublica)

The CTCL money has become a central theme in complaints about Biden’s victory in Wisconsin — and in the review by Gableman. Under pressure from Trump, GOP Assembly Speaker Robin

Vos appointed Gableman to review whether the election was administered fairly and lawfully.

Gableman has fallen short of proving fraud, but did use an interim report and an appearance before the legislative oversight committee on March 1 to highlight the Zuckerberg money and call for disbanding the Wisconsin Elections Commission. He said the legislature should look into decertifying the 2020 election results, but even Republican officials balked at that.

​​Republican Assembly Majority Leader Jim Steineke tweeted that “handing authority to partisan politicians to determine if election fraud exists would be the end of our republic as we know it.”

Jay Stone sat in the front row behind Gableman during the meeting, where Gableman released a report of his findings thus far. It spanned 136 pages, half of which dealt with the CTCL grants, which he characterized as “election bribery.”

Stone helped in the review but won’t talk about what exactly he did in the ongoing investigation, which was budgeted by Vos to cost taxpayers $676,000. “I’m on a confidentiality agreement,” Stone said.

Stone billed Gableman $3,250 for 128 hours of work between Feb. 16 and March 1, according to an invoice obtained by the nonprofit group American Oversight, which has sued to get access to Gableman’s records.

Asked about Gableman’s bribery terminology, Stone sighed. “It’s not a typical case where somebody gives a politician money for, let’s say, a zoning change,” he said. “So, it’s not your typical bribery case, but certainly it’s worth looking into.”

Lawsuits in Wisconsin, Pennsylvania, Michigan and Minnesota about the CTCL grants have failed, as did Stone’s complaint to the Wisconsin Elections Commission.

Just last week in Madison, Dane County Circuit Court Judge Stephen Ehlke called the election bribery allegation “ridiculous,” saying he saw no evidence that CTCL offered anything to change anyone’s vote. “I mean, what proof is there in the record anywhere of an inducement of bribery? That whole thing just falls away. There’s nothing in the record. Is there?”

Minnesota lawyer Erick G. Kaardal, who continues to challenge the grants, replied that he reads state law to mean: “We don’t want Wisconsin public officials taking money to get people to go to the polls.”

The county case is an appeal of the elections commission’s rejection of a similar complaint Kaardal filed there about the grants. Ehlke has yet to rule.

Gableman’s work, meanwhile, has been widely discredited, cast by politicians, including some Republicans, and legal analysts as unprofessional and amateurish. Wisconsin’s Democratic governor called the investigation a “colossal waste of taxpayer dollars.”

“This effort has spread disinformation about our election processes, it has attacked the integrity of our clerks, election administrators, and poll workers, and it has emboldened individuals to harass and demean dedicated public servants,” Gov. Tony Evers said in a prepared statement.

The issue of using private grants in administering elections, however, remains alive.

Zuckerberg will not be making future donations to election offices, his spokesperson told ProPublica earlier this month, calling it “a one-time donation given the unprecedented nature of the crisis.”

More than a dozen states, meanwhile, have banned or restricted the use of private funds for election offices. The Wisconsin legislature passed a bill in 2021 prohibiting counties or municipalities from applying for or accepting any private donations for elections, but left room for the Wisconsin Elections Commission to take outside grants so long as the money is distributed statewide on a per capita basis. Evers vetoed it.

In southeastern Wisconsin, however, the Walworth County Board of Supervisors passed its own ban last month, prohibiting the county from accepting donations or grants for election administration from individuals or nongovernmental entities.

Now that he’s left a mark as a political activist in Wisconsin, Stone is back on the campaign trail.

At an event hall near Kenosha this month, Stone addressed about 100 people gathered at a regular meeting of the H.O.T. Government group, a right-leaning Wisconsin grassroots organization that adopted an acronym for the words “honest, open and transparent.” (Stone is the group’s vice president.) A stuffed effigy of a torso with a white foam head hung from the rafters, wearing a shirt labeled “Corrupt Officials.”

Standing before a large American flag, he politely asked people to sign his nominating forms. Republican State Rep. Janel Brandtjen, who chairs the elections committee overseeing Gableman’s investigation and supports the effort to overturn Biden’s Wisconsin victory, jumped up from her seat to lead the crowd in a chant: “Jay Stone! Jay Stone!”

“Jay is the one who filed the complaint in the very beginning,” she told the audience. “Jay is a real hero in what he’s done for Wisconsin.”

Help ProPublica Investigate Threats to U.S. Democracy

by Megan O’Matz

Why It’s Hard to Sanction Ransomware Groups

2 years 6 months ago

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On Feb. 25, the day after Russia invaded Ukraine, a prolific ransomware gang called Conti made a proclamation on its dark web site. It was an unusually political statement for a cybercrime organization: Conti pledged its “full support of Russian government” and said it would use “all possible resources to strike back at the critical infrastructures” of Russia’s opponents.

Perhaps sensing that such a public alliance with the regime of Russian President Vladimir Putin could cause problems, Conti tempered its declaration later that day. “We do not ally with any government and we condemn the ongoing war,” it wrote in a follow-up statement that nonetheless vowed retaliation against the United States if it used cyberwarfare to target “any Russian-speaking region of the world.”

Conti was likely concerned about the specter of U.S. sanctions, which Washington applies to people or countries threatening America’s security, foreign policy or economy. But Conti’s attempt to resume its status as a stateless operation didn’t work out: Within days of Russia’s invasion, a researcher who would later tweet “Glory to Ukraine!” leaked 60,000 internal Conti messages on Twitter. The communications showed signs of connections between the gang and the FSB, a Russian intelligence agency, and included one suggesting a Conti boss “is in service of Pu.”

Yet even as Putin’s family and other Russian officials, oligarchs, banks and businesses have faced an unprecedented wave of U.S. sanctions designed to impose a crippling blow on the Russian economy, Conti was not hit with sanctions. Any time the U.S. Treasury Department sanctions such an operation, Americans are legally barred from paying it ransom.

The fact that Conti wasn’t put on a sanctions list may seem surprising given the widespread damage it wrought. Conti penetrated the computer systems of more than 1,000 victims around the world, locked their files and collected more than $150 million in ransoms to restore access. The group also stole victims’ data, published samples on a dark website and threatened to publish more unless it was paid.

But only a small handful of the legions of alleged ransomware criminals and groups attacking U.S. victims have been named on sanctions lists over the years by the Treasury Department’s Office of Foreign Assets Control, which administers and enforces them.

Putting a ransomware group on a sanctions list isn’t as simple as it might seem, current and former Treasury officials said. Sanctions are only as good as the evidence behind them. OFAC mostly relies on information from intelligence and law enforcement agencies, as well as media reports and other sources. When it comes to ransomware, OFAC has typically used evidence from criminal indictments, such as that of the alleged mastermind behind the Russia-based Evil Corp cybercrime gang in 2019. But such law enforcement actions can take years.

“Attribution is very difficult,” Michael Lieberman, assistant director of OFAC’s enforcement division, acknowledged at a conference this year. (The Treasury Department did not respond to ProPublica’s requests for comment.)

Ransomware groups are constantly changing their names, in part to evade sanctions and law enforcement. Indeed, on Thursday, a tech site called BleepingComputer reported that Conti itself has “officially shut down their operation.” The article, which cited information from a threat-prevention company called AdvIntel, laid out details about the status of Conti’s sites and servers but was unambiguous on a key point: “Conti’s gone, but the operation lives on.”

The evanescence of the Conti name underscores another reason it’s hard to sanction ransomware groups: Putting a group on a list of sanctioned entities without also naming the individuals behind it or releasing other identifying characteristics could cause hardship for bystanders. For example, a bank customer with the last name “Conti” might pop up as a sanctioned person, creating unintended legal exposure for that person and the bank, said Michael Parker, a former official in OFAC’s Enforcement Division. The government then would have to untangle these snarls.

By imposing sanctions, the federal government would hamstring victimized organizations, such as businesses and hospitals, that might suffer disclosure of trade secrets or other sensitive information, or might have to shut down if they couldn’t recover their locked files. If they could pay the ransom, the hacker would supply a key to unlock the files and pledge to delete stolen data.

But even without sanctions, victims are in a bind. Years before the invasion of Ukraine, OFAC imposed sanctions on the FSB, one of the successor agencies to the Soviet-era KGB. So even though Conti was not listed by name, its possible ties to the FSB or other listed Russian entities may have rendered it sanctioned anyway.

Between that and the bad optics of paying a group linked to Russia, most victims had not paid Conti’s ransom after the February proclamation, according to lawyers and negotiators who work with ransomware victims. They say the situation is confusing. “It certainly would be easier for us if the standard were to add particular ransomware groups to the OFAC list,” said Michael Waters, an attorney who frequently works with victims of ransomware. “Then we simply aren’t going to make payments to those groups. But it is much foggier than that.”

Some American victims continued to pay ransoms to Conti through a Canadian intermediary called Cypfer. CEO Daniel Tobok said Cypher paid Conti on behalf of about a dozen victims, more than a third of them American, after the war began. He said that some companies would have had to lay off employees or shut down entirely if they hadn’t paid Conti. Cypfer follows U.S. sanctions on groups listed by name, such as Evil Corp, Tobok said. “Either they’re on the sanctions list or they’re not,” he said of Conti. “I don't include morals here.”

The lack of clarity puts the onus on victims to discover if their attacker falls into a sanctioned category. Determining whether groups are operating out of North Korea or Iran, for example, or on behalf of the FSB is “very, very challenging because there’s obviously efforts to conceal that on the other side,” said Ryan Fayhee, a sanctions attorney who works with victims. The government makes it seem “as if this is a traditional commercial enterprise and you can just simply screen the criminal,” he added. “That’s not how it happens.”

The federal government has long discouraged the payment of ransom and in recent years has put the professionals who work with ransomware victims on notice. In October 2020 the Treasury Department issued an advisory saying that “companies that facilitate ransomware payments to cyber actors on behalf of victims” may “risk violating OFAC regulations.” A second advisory, in 2021, seemed to acknowledge that victims sometimes make payments that violate sanctions. In those cases, victims and their representatives may receive leniency if they quickly report the incident and payment to OFAC.

Since many victims in the past have been loath to report attacks to the FBI, fearing that the intrusion would become public or the FBI would instead investigate the company itself, the Treasury Department hoped the guidance would prompt more victims to work with law enforcement. That, in turn, could lead to more indictments and more sanctions.

That part of the strategy seems to be working: More victims are reporting incidents to law enforcement, according to Waters. Following the 2021 advisory, many insurers began requesting proof that policyholders making ransomware claims report the incidents to the FBI, he said. The insurers he works with heavily weigh decisions made by intermediaries such as negotiating firm Coveware. Following Conti’s proclamation about Russia, Coveware stopped making payments to the group, said its co-founder, Bill Siegel. Coveware continued to negotiate with Conti, allowing time for the victim to assess the situation, prepare a public relations strategy and make arrangements to notify people affected by the breach.

For its part, Conti laid low following the late February leak of its messages, then launched a final burst of intrusions in April, including a significant one against the Costa Rican government. But that attack, AdvIntel told BleepingComputer, seemed intended to provide cover while Conti protected its online infrastructure. Not unlike the Russian army in Ukraine, it seemed, Conti’s forces were making a tactical retreat in preparation for future attacks.

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Update, May 24, 2022: This article has been updated to include comments, made after this story was produced for publication, from the CEO of a company that continued to pay ransom to Conti after it proclaimed its sympathy to Russia.

Daniel Golden contributed reporting.

Renee Dudley and Daniel Golden are the authors of “The Ransomware Hunting Team,” which will be published in October by Farrar, Straus and Giroux.

by Renee Dudley

She Warned the Grain Elevator Would Disrupt Sacred Black History. They Deleted Her Findings.

2 years 6 months ago

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In July of 2021, a professional architectural historian named Erin Edwards delivered what she expected would be the near-final draft of a report about a contested swath of sugar cane plantation land along the Mississippi River in Louisiana. The painstaking survey, for her bosses at a consulting firm, was supposed to identify harms to historic sites so that developers can prevent or minimize them.

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Edwards’ report detailed how a proposed $400 million grain elevator, almost the height of the Statue of Liberty, would disrupt sites that are both sacred and dedicated to educating people about slavery and its aftermath. These included homes in the 750-person community of Wallace, an African American cemetery and the nearby Whitney Plantation Museum, which serves as a memorial to generations of people forced to work the fields against their will. The draft said vermin, loud noises and ground vibrations would likely invade the quiet space of the museum, which draws tens of thousands of visitors each year.

For many residents of Wallace and nearby communities in St. John the Baptist Parish, the site holds deeper meaning. They are the descendants of people who’d once been enslaved there.

An agricultural company called Greenfield had purchased the land for $40 million in 2021 and is seeking a permit from the Army Corps of Engineers to build a massive industrial operation that would include 54 grain silos. A long conveyor would carry millions of tons of wheat, soy and other crops to the facility from ships docked on the river. Gulf South Research Corporation, where Edwards worked, was hired to help Greenfield comply with a section of the 1966 National Historic Preservation Act that requires development projects funded or given a permit by federal agencies to document significant sites and come up with a plan to minimize harm. The law gives agencies like the Corps authority to deny permits if a proposed project cannot be reshaped to avoid harming sites with historic significance.

The draft report by Edwards and a co-author concluded that the grain elevator would have “an adverse effect on historic properties.” The authors said they had determined that the entire area should be listed as a historic district in the National Register of Historic Places, the federal government’s roster of sites deemed worthy of preservation.

The field where the agricultural company Greenfield plans on building a grain elevator. (Akasha Rabut, special to ProPublica)

Edwards had included a sentence that she believed was suggestive if not definitive about an underexamined aspect of the land: the possibility that it contained as-yet undiscovered graves. “Thus far, no enslaved cemeteries have been found for either Whitney or Evergreen Plantations,” another nearby and unusually intact plantation where the movie “Django Unchained” was filmed, “despite hundreds of enslaved people being kept there for over 155 years.”

Three months after Edwards handed in her report, in October 2021, Gulf South filed to the state a document with the same title as the one Edwards wrote but with some notable edits.

The determination of the historic district, the findings about the impact on Whitney and the community around it, and the lone sentence about unknown graves had all been removed. The report now concluded that “the project would not result in an adverse effect.”

The report submitted by Gulf South Research Corporation. (Screenshot highlighted by ProPublica)

The rewrite came after the contractor Greenfield hired to handle the permitting process pressured Gulf South, according to emails obtained by ProPublica. Gulf South was warned that if the firm didn’t take out Edwards’ key finding — that the entire area was a historic district — it would lose the contract.

“They are refusing to accept it,” Gulf South’s head of cultural resources, Mike Renacker, wrote about Edwards’ report in an email to an internal team. “They are willing to tear up the contract and fire us.” As written, the report “has the potential to not only cost us our contract and future work, but might end the overall project as well.”

Edwards was shocked. “It is unethical for a client to tell us what our findings are,” she replied in an email. “They came to us for our expertise, and they got a professional report that is factual.”

“Our reputation will be that we can be bought,” she added.

Renacker replied: “I’m not suggesting, nor would I ever suggest that we do something unethical. I’m not questioning your methods or even the recommendation. What I am doing is laying out the problem we are having and asking for help to find a solution.”

After Edwards’ bosses changed her report, she resigned from her job of seven years.

Gulf South wrote in response to questions from ProPublica that it “was not required by Greenfield or anyone else for that matter to make changes that GSRC does not support.” What Edwards submitted, the company said, was a draft, and it’s not uncommon for drafts to change after clients review them and offer new relevant information.

The company says it asked Edwards to provide additional evidence to support her conclusion that the area should be considered an historic district, but she “was unable to provide data needed to meet the referenced listing criteria.” Edwards, who has a master’s degree in preservation from Tulane, said that she was confident her report was comprehensive and that the state’s historic preservation office would have agreed, had that agency been sent the complete report.

Greenfield did not answer a number of detailed questions about the Gulf South surveys but said that it prioritizes the protection of historic sites, and that it would halt work in any area where construction discovers unknown cultural resources.

The contractor Greenfield hired to handle the permit process, Ramboll Group, declined to answer questions, stating that media requests should go to Greenfield and Gulf South.

Experts in the field of cultural resource management say that companies sometimes look away from findings or are asked to change them to make their developer bosses happy. The field is now dominated by for-profit firms like Gulf South that developers hire to comply with the federal law. As a result, these firms can operate not as preservation gatekeepers but as lock-pickers for private industry intent on development.

“There is little incentive for companies to find anything,” explained Tom King, who during the 80s was the director of the federal Office of Cultural Resource Preservation, under the Advisory Council on Historic Preservation. “They’re not hired to find things. If they make construction impossible, they are not going to get more work.”

The community of Wallace, which is almost entirely Black, sits along a rare stretch of undeveloped riverbank south of Baton Rouge that’s not been transformed by polluting petrochemical plants and other heavy industry. Right off River Road, an 83-year-old woman named Clementine Grows sat on the porch of her small cottage, which was still covered in blue tarps after severe damage from Hurricane Ida last year. On this May morning, before the midday heat set in, she explained that she’d spent some of her childhood on the Whitney Plantation. From the dead-end road where she lives, Grows can see the plantation property, several hundred yards across a cane field.

Her grandparents had labored and lived on the Whitney, where wage workers were bound through credit to the plantation store, a whole century after the Civil War. They had cared for Grows, she said, after her mother was injured in a cane fire. She and her husband raised their children in Wallace. Grows worked as a cook at the local high school. Her husband worked at a grain elevator across the river. Her son, who was visiting Grows on that May morning, recalled coming home from school years ago and earning pocket change picking vegetables.

The cane field and Whitney Plantation seen from the end of Clementine Grows’ street. (Akasha Rabut, special to ProPublica)

Grows said she did not know exactly what the grain elevator would mean for her and her home. She’s heard some people in her community say that the project would make it difficult to remain in these houses. “A lot of people say it’s going to cause all sorts of problems.”

Three decades ago, another company had nearly begun building a plant on the same land. She’d prepared to leave. But the plans were scrapped. “If we had to move all of a sudden that would be something. I’ve been here. My daddy was living right there,” Grows said. “All these people on this little land are kinfolk.”

Edwards had listed Grows’ house among several in a small enclave in Wallace called Willow Grove that should be considered part of a larger rural historic district, “as it was built for and used by the descendants of freed plantation workers.” At the end of Grows’ dead-end road, beyond a cleared grassy plot and adjacent to the planned grain elevator, a cemetery with about 50 stones bears names of people who died here, including Grows’ mother, Lorenza Poche, born in 1910, and her husband, Melvin Grows, an Army veteran, as well as one of her sons, four siblings and a grandson.

Grows at Willow Grove Cemetery, where many of her relatives are buried. (Akasha Rabut, special to ProPublica)

Grows recalls that decades ago, families would ask to bury their deceased relatives in areas near existing graves. Her neighbors who managed the burials, all of whom Grows said have now passed away, would sometimes tell them that there were open spaces that were off-limits to new interments. “When someone would come to bury someone there, they would say, ‘You can’t bury them there because someone’s been buried there already.’ And they’d find another place to bury them.”

It was her understanding that people had been buried there without headstones.

There is no mention of these or any other possible unmarked burials in the report that Gulf South sent to the state.

Shortly after Gulf South changed Edwards’ report, University of New Orleans professor Ryan Gray sent a letter to the Corps detailing a list of ways that Gulf South’s methodology for locating unknown cemetery sites was “completely inadequate.”

Gray, who worked for eight years for a private cultural resource management firm in Louisiana before he got a doctorate in archaeology at the University of Chicago, concluded that the Willow Grove Cemetery likely extends beyond what is visible. The land around it, he wrote, is “almost positively the location” of “unmarked enslaved or nineteenth-century post-Emancipation burials.”

Greenfield did not respond to questions about potential burial sites, but on its website the company says it “has gone above and beyond what is required to ensure there are no ancestral burial grounds where the facility will be located.”

Cultural resource management firms have been criticized before for missing historic sites in their reports. Just up the river several years ago, a firm hired by a petrochemical company initially failed to document burial sites that activists and researchers uncovered by comparing aerial photos from the 1940s that might still have shown the contours of those plots with 19th-century maps that identified locations of cemeteries. After an outside archaeologist alerted the state to the likely existence of gravesites, the petrochemical company that owned the land agreed to cordon off at least one of those cemeteries.

In December 2020, Gulf South submitted a first report to the state historic preservation officer. After reviewing the work, the state asked the company to expand the radius of its study, to include all of the Whitney and Evergreen plantations and the communities nearby and to take into account other potential impacts. This is the work Edwards and another employee were assigned to.

Edwards said she raised the issue of unknown graves in the hopes it would spur the Division of Historic Preservation to demand that Greenfield conduct a more diligent search for unmarked burial sites, including near the Willow Grove Cemetery. (Edwards’ co-author has recently taken a job as a compliance officer with the Louisiana Division of Archaeology, overseeing cultural resource management reports. She declined to be interviewed because she is not authorized by the state to speak to the press.)

“If there might be burials,” Edwards said, “why not look harder?”

Grows walks to Willow Grove Cemetery. (Akasha Rabut, special to ProPublica)

Last year, the Whitney Plantation Museum, which decades ago was added to the National Park Service’s National Register of Historic Places, put up a new plaque on the museum premises. “It is a major threat to the slave-decsendant community in Wallace,” the plaque reads, referring to Greenfield’s plans. Visitors see the display before they reach a memorial to men who were executed after staging the German Coast uprising, the largest revolt of enslaved people before the Civil War.

“This grain elevator would take up hundreds of acres of the fields around you that once formed Whitney Plantation, potentially destroying unknown burial sites,” the plaque says. “It will contribute to the existing toxic burden with the grain dust pollution, and permanently change the landscape of West St. John Parish.”

A plaque put up last year at the Whitney Plantation Museum. (Courtesy of the Whitney Plantation Museum)

The grain elevator would be visible from parts of the plantation memorial site. And it would tower over a small restaurant on a verdant, tree-shaded plot off River Road.

Joy and Jo Banner, twin sisters in their mid-40s from Wallace, run the restaurant, which is on the same road as their family home. They also are the co-founders of the Descendants Project, a nonprofit dedicated to lifting the history of Black people in the region, and in particular ancestors of enslaved people in the river parish plantations.

After both sisters left Wallace for college and graduate school, and in Joy’s case to get a doctorate and then teach at a university in Texas, they returned to work in this small community. Like many residents, they trace their ancestry to people who were enslaved in these very plantations, including Whitney.

Sisters Joy, left, and Jo Banner run a restaurant on the same road as their family home. (Akasha Rabut, special to ProPublica)

The Banner sisters have dedicated much of their time to building the Descendants Project so that people like Grows might gain some power in decisions about how their communities change. For the last year, that has meant fighting Greenfield’s plans. Along with other advocates, they’ve alleged that the industrial facility will lead to the kind of harm that Edwards was independently documenting, entirely unbeknownst to them, because the report as she wrote it has never been released.

“If they build this, this community will not survive,” said Joy Banner, whose day job is communications director of the Whitney Plantation Museum.

The grain elevator would be constructed next to the pink building on the right, the Banners’ restaurant. (Akasha Rabut, special to ProPublica)

In May of 2021, the Banner sisters heard reverberating bangs originating several hundred feet from their home, on the land that Greenfield owned where the elevator would be. Builders were driving large metal beams, more than 20 of them, into the ground to determine feasibility for building, according to Greenfield. “If you didn’t know what was going on, you would think that there’s nothing you can do to stop it,” Jo Banner said, pointing into the field, just past their family home, where Greenfield placed a “No Trespassing Private Property” sign.

After the beams were pounded into the ground, lawyers with the Center for Constitutional Rights who represent the Descendants Project sent a letter to the Louisiana attorney general and the Louisiana Division of Archaeology, requesting that they force the activity to stop.

The letter cited work by a research firm called Forensic Architecture, based at Goldsmiths’ College at the University of London, that had been investigating the location of historic cemeteries in Cancer Alley, the predominantly African American region between Baton Rouge and New Orleans that’s packed with dozens of petrochemical plants and refineries. Using historic maps and aerial photographs, they’ve identified geological anomalies that could indicate burial sites, including trees growing in otherwise-cultivated fields. In some cases, those anomalies took root because plows or planters had long steered clear of known or suspected locations of graves.

“If you are genuinely interested in finding antebellum or other historic sites, you want to find the earliest possible view of the land,” said Imani Jaqueline Brown, the researcher with Forensic Architecture who spent a year studying the geography, architecture and cartography of the region and constructed the maps of the anomalies in Wallace. Brown said two sites are particularly likely to be burial places, based on their relative location to plantation architecture.

Gulf South said that it “did review historic maps and aerial imagery and considered the potential for burial locations” and “found no evidence of potential burial locations within the footprint of potential ground disturbance resulting from the project.”

Forensic Architecture used historic maps and aerial images to identify possible burial sites near the proposed grain elevator. (Courtesy of Descendants Project)

The attorney general’s office replied to the letter from the Descendants Projects’ lawyers. “While some of the anomalies identified in your letter may represent unmarked burial sites,” it said, “so long as they are undisturbed we cannot take action under the existing laws.” Unless bones were dug up, in other words, under Louisiana’s cemetery laws, the state could not stop the work.

Another group of lawyers, also working with the Descendants Project, was trying to stop the federal permit, arguing in part that grain dust could leak into the air and create a respiratory irritant.

Greenfield disputes that the grain elevator would cause such problems, adding that “it will be one of the safest and cleanest facilities in North America. Greenfield is engineered to outperform all current and anticipated EPA standards.”

In November, the Descendants Project sued St. John the Baptist Parish to try to stop the project. Through their lawyers in that suit, the group presented evidence that the grain elevator land had been zoned for industrial use through fraud; a corrupt land deal three decades earlier landed the former parish president in federal prison. A judge in late April ruled that the case could proceed. Greenfield, which the court allowed to become a party to the case, said it would likely appeal. In court filings it has argued that the 30-year-old zoning decisions, whatever their origins, were approved by the St. John Parish Council.

Among the claims in the suit, the Descendants Project says that the sprawling operation could pose a risk to their own ancestors’ graves. The sisters aim to preserve the land to serve Black communities who have lived here for hundreds of years yet have been robbed of their claim to it by those who controlled it.

Jo and Joy Banner at the construction with a rendering of how the grain elevator will look behind their community. Protruding in the background are the stakes where construction is planned. (Akasha Rabut, special to ProPublica)

“These are Black spaces,” Joy Banner said, sitting on the lawn of her restaurant, about the geography of the plantations amid which she lives. “The trauma of not being able to talk freely about our own history is hurting our communities.”

Jo Banner added: “We have this district, we have an area that is really not found anywhere in the country. Communities like ours have been surviving all this time, since slavery and after slavery, so we’re fighting to protect this place.”

It is impossible to know how often important sites get covered up or downplayed in cultural resource management reports. These omissions typically come to light only because someone insists on revealing them.

After Edwards quit her job at Gulf South, she felt compelled to tell the state what had happened. On Oct. 22, 2021, she emailed the director of the Louisiana Division of Historic Preservation, stating that the report she had drafted, and a set of accompanying forms, are “very different from the current version that should be coming to you soon.”

“The current version of the report was written by the project manager and the client, playing architectural historian, and they have made eligibility determinations and conclusions in the report that I absolutely do not agree with,” she wrote in an email ProPublica obtained. “Since my professional reputation in Louisiana is involved in this, I wanted to ask you to please be aware that my name, my degree, and SOI [Secretary of Interior] qualifications should not [be] associated with this revised report in any way.”

“That elevator was going to be harmful,” Edwards told ProPublica. “That is what I concluded.”

For communities with an interest in the land, removing those kinds of conclusions can foreclose access to a provision of federal law that promises communities a say in what happens when historic sites are at risk. For land that Black communities are deeply connected to but have never been allowed to control, like the land in Wallace, community consultation provides a rare opening, however narrow, to be heard.

“Consultation opens a crack to holding the laws to an ethical standard,” Gray, the University of New Orleans professor, said.

Historic preservation has given preference to the protection of grand things, places like slaveowners’ homes and courthouses and stately cemeteries, sites controlled by and for white men of significance and maintained with their wealth and by white-led institutions. Places whose significance is tied to how enslaved people and their descendants lived and died rarely have been recognized by protection laws. Only a tiny fraction of the 90,000 sites on the National Register of Historic Places are specifically associated with Black people.

Community input allows for “those preservation laws to be applied in a more equitable way,” Gray said, “to understand integrity differently.”

After Edwards sent her email to the director of the state Division of Historic Preservation, warning the agency that it was about to receive a gutted report about the Greenfield grain elevator, the director, Nicole Hobson-Morris, replied: “You have my respect for standing up for your professional reputation.” Edwards, who now works for a national environmental compliance firm, said she heard nothing more from the state. She thought that was the end of it.

But Hobson-Morris later raised flags about the project. On Jan. 20, 2022, in an email to the Louisiana Department of Natural Resources, which oversees a separate state permitting process, she wrote that her office “has concerns regarding cumulative impacts the Greenfield project may present to historic and cultural resources in the area. We believe environmental and audible impacts over time may adversely affect historic resources in close proximity to the project.” She noted that when the Army Corps of Engineers reaches out to the state as part of its review, she will be communicating these concerns.

On April 12, the Tulane Environmental Law Clinic, in its effort to halt the permits, filed comments and a set of attachments to the Corps. Among them was the email that Edwards had written to the state.

“The Corps must not allow Greenfield to develop the proposed Wallace site in light of the unreliability of the applicant’s report on the cultural, historical, and archaeological resources at and near the site,” the clinic wrote.

The Corps confirmed that it had received the email that Edwards wrote and had seen the revised report from Gulf South. The agency told ProPublica it disagreed with the report’s conclusion that the Greenfield development would inflict no negative impact. The Corps said it would enter a process to develop a plan to protect sites of historic significance.

Six days after submission, the Tulane clinic received notice from the Corps. The Descendants Project had been named a consulting party in the Greenfield permitting process. “It feels like a shift. We’ve been fighting against heavy industry, and for a voice about this land, for so long,” Joy Banner said. “We’ve been able to gather enough strength where they’re forced to listen to us, to take us into account.”

“We at the Corps are seeing adverse impacts,” said Ricky Boyett, the head of public affairs for the group in New Orleans. The Corps, he explained, will work with the National Park Service, since the Evergreen Plantation is an official national historic landmark, and with other stakeholders, including the Descendants Project, to develop an agreement about how the project might proceed and how to protect sites of historic significance.

“There’s discussion of cemeteries in the area,” Boyett added. “We need to do a little more research on those as well.”

The permit for the grain elevator, he said, is still under review.

ProPublica will continue to report on developers and cultural resource management firms that may have covered up or downplayed historic sites. We’re especially interested in information about spaces connected to marginalized communities.

If you know about this issue, please email reporter Seth Freed Wessler. We take your privacy seriously and will contact you if we wish to publish any part of your story.

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by Seth Freed Wessler

Air Monitors Alone Won’t Save Communities From Toxic Industrial Air Pollution

2 years 6 months ago

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One summer night last year, air began flowing into a steel canister across the street from the Little Bo Peep Child Development Center in Calvert City, Kentucky. The pollution monitor hummed into the morning as parents dropped off their toddlers and later into the day as the kids played outside. Within a month, a lab analysis would reveal that the canister had captured a troubling concentration of ethylene dichloride, which has been linked to pancreatic and stomach cancers and leukemia.

No one, however, raced in to warn parents or alert nearby residents that the air they sucked in with every breath was laced with a poisonous chemical. No one took immediate steps to stop the stream or sue the offending polluter into compliance.

In fact, that Calvert City monitor had been running all year, along with two others around town. Each of them had registered more ethylene dichloride than any of the 123 other monitors nationwide designed to detect the chemical. The results had been logged by Kentucky regulators and uploaded to a database managed by the Environmental Protection Agency.

If my child attended that day care, “I would be very concerned and working tremendously to get them into another school,” said Wilma Subra, an environmental health expert who advises the EPA on community concerns, after reviewing a summary of the air-monitoring results at ProPublica’s request.

It’s examples like Calvert City, experts say, that expose an infuriating conundrum with the U.S. systems for protecting citizens from dangerous pollution: Regulators install air monitors to flag hazardous emissions from local companies, then pull their punches in taking action against the offenders.

Meanwhile, the monitors serve as a false promise to residents that the findings will be used to keep them safe. Some people believe the mere existence of monitoring is “protecting them” from harm, said Barbara Morin, an air pollution expert at a nonprofit that advises the environmental regulators of eight Northeastern states. “Unfortunately, sometimes there’s just the monitoring and nothing happens to change the situation.”

ProPublica spent the last year crisscrossing the country to detail the failures of the EPA and state regulators to measure and address the community impacts of industrial toxic air pollution. The series of stories resulted in immediate response, including promises by the EPA to install monitors and track outputs — a move hailed as a victory for local communities. Residents of many of the toxic hot spots had spent years begging regulators to install them.

But an examination of the long history of air monitors in Calvert City shows that even when the monitors capture years’ worth of evidence that a polluter is putting a community in harm’s way, the path to clean, safe air is rocky and filled with well-funded obstacles, misdirection and inaction.

An air monitor maintained by Kentucky environmental regulators has been located behind Calvert City Elementary School for about a decade.

In this remote industrial city of 2,500, where manufacturing has long been king, regulators have had proof for at least three decades that residents are breathing dangerous amounts of air pollution. During that time, the EPA and the state have amassed an extraordinary amount of documentation establishing not just how hazardous the air is in Calvert City, but where the worst pollution is coming from.

They’ve watched in real time as the problem got worse and as the estimated cancer risks of area residents crossed the threshold level that the EPA considered acceptable — in places, reaching 17 times that limit.

Nicole Deziel, a Yale epidemiology professor and environmental health expert, said it could take decades to see the damage. Researchers often find themselves lagging behind, studying emerging cancer clusters and trying to reconstruct the cause, Deziel said. In Calvert City, where there’s already data that pollution levels exceed what’s considered safe, “we have the opportunity to actually intervene,” she said.

State and federal regulators have an arsenal of ways to do so and hold the culprits accountable, including levying millions in fines, requiring pollution controls and launching criminal investigations.

And yet, as the history of Calvert City shows, such action isn’t a given. In the face of a global petrochemical corporation, in a company town where residents are reluctant to criticize their employers, regulators have, again and again, stopped short of using all the tools at their disposal.

“Good Neighbor”

Founded on a railroad stop near the Tennessee River, Calvert City began attracting industrial development after the Kentucky Dam brought cheap electricity to the region in the 1940s. By 2020, more than a quarter of the private-sector jobs in surrounding Marshall County came from chemical plants and other manufacturing, with wages well above those in other fields. Every year, local families gather for a “Good Neighbor Night” hosted by a collection of plants whose employees hand out free swag, such as lawn chairs printed with the companies’ logos, as a turtle mascot named Wally Wise Guy teaches kids how to shelter in place in the event of an industrial accident.

Westlake Chemical moved into town in 1990, expanding over time into three plants — a maze of industrial boilers, tanks and wastewater ponds, with innumerable smokestacks and vents and pipes. The plants make polyvinyl chloride, better known as PVC, and petrochemicals used in construction, packaging and other goods. The company got regulatory permits that authorized it to release thousands of pounds of carcinogens a year, but almost from the start, additional, unauthorized releases accidentally seeped or leaked into the air, according to EPA records. It wasn’t just ethylene dichloride, but vinyl chloride, which is highly flammable and has been associated with brain, liver and lung cancers. (The company did not respond to multiple requests for comment).

A Westlake chemical plant in Calvert City.

While a few plants run by other companies nearby also emitted these chemicals, Westlake’s authorized emissions would come to dwarf theirs. According to the most recent four years of available federal data, Westlake released at least 48,000 pounds of ethylene dichloride per year; the other companies combined released just 1 pound. Westlake’s annual vinyl chloride emissions during that time were at least 28 times that of the others.

Within eight years of Westlake’s opening, state and federal regulators had already been alerted to problems at the sprawling compound. In the decades that followed, news articles and regulatory documents would chart the company’s checkered record with the chemicals. In 1998, for example, Westlake told the EPA that it hadn’t released any ethylene dichloride into the water when it had actually released more than 8,000 pounds, according to an EPA complaint. In 2001, it waited more than an hour before reporting a 2,727-pound leak; the same happened four years later, after a release of 7,700 pounds, the complaint said. The company was supposed to immediately inform a federal center for chemical accidents if it leaked 100 pounds of the potent carcinogen into the air.

Shortly after that leak in 2005, the local emergency response system made thousands of automated calls warning residents to shelter indoors, The Paducah Sun reported. The system had been adopted after 5,000 pounds of leaking vinyl chloride caused a fire and explosion at the plant in 2002. Despite the calls in 2005, a Westlake manager told The Associated Press that air monitors hadn’t detected the carcinogen outside the plant’s boundaries.

In 2010, the EPA took the aggressive step of announcing a consent decree, a settlement that involves complex negotiations with the help of the Department of Justice. Under the terms of the decree, Westlake agreed to pay $800,000 and create a vast leak detection plan. Failure to meet those terms could lead to daily penalties of up to $5,000. The EPA predicted this would force Westlake to cut emissions of vinyl chloride by 2,300 pounds a year and of ethylene dichloride by 1,300 pounds per year.

Less than a year later, more than 11,000 pounds of vinyl chloride and 2,000 pounds of ethylene dichloride streamed out of a hole in a piece of Westlake piping, according to state and federal records. The leak destroyed the EPA’s goal in a single day; the agency later found Westlake hadn’t inspected the piping for mechanical integrity.

“Negligence Loophole”

With that leak in 2011, state regulators believed they had three separate air pollution violations, but Westlake wielded its legal might to fight back.

In the company’s lengthy response to regulators, a Westlake manager interrogated the definitions of basic terms like “equipment leak” or “standard” and argued that none of the violations were valid. In response, Kentucky regulators rescinded one of them, noting that the federal rule only applied to leaks during startups, shutdowns or malfunctions. Then they offered a startling rationale: The leak didn’t count as a “malfunction” because the problem partly stemmed from “poor operations and maintenance.”

“We are left with this loophole,” the regulators wrote.

Experts say such exit ramps from regulation are not uncommon. The system often presents a “laundry list of defenses” to polluters, said Seema Kakade, a former attorney in the EPA’s civil enforcement division who is now a law professor at the University of Maryland. Some provide leeway for unavoidable accidents and some are negotiated end-runs around the rules by corporate or other special interests, she said — with large, wealthy companies poised to take advantage.

Westlake benefited from what was “basically a negligence loophole” that “allows plants to avoid accountability even for releases caused by their own poor operations and maintenance,” Jim Pew, an attorney for the nonprofit group Earthjustice, said in an email. His organization has spent decades advocating for stronger EPA rules.

Left: Calvert City, located in western Kentucky. Right: The Westlake Chemical Corporation facility in Calvert City.

Over the next few years, the EPA unearthed four more leaks caused by faulty inspections or testing. However, none of these incidents broke the terms of the consent decree, as the agency concluded that these leaks concerned “alleged violations” of a different regulation from the one cited in the consent decree, said Tim Carroll, deputy press secretary for the EPA. (Carroll said Westlake has continuously demonstrated compliance with the 2010 settlement.) Despite the continued problems, and additional leaks cited by state regulators, Westlake was able to expand one of its plants — a move with so little pushback from the state that then-Gov. Steve Beshear, a Democrat, attended the ceremony. (Beshear didn’t respond to a request for comment.)

In 2017, two state environmental investigators were on the highway when they spotted a plume of black smoke, which they traced to a flare at a Westlake plant. Flares reduce pollution by burning off toxic gases, and they’re much less effective when there’s visible smoke. When the inspectors parked outside the facility fence to take photos, a Westlake security officer came out “and, after we had introduced ourselves, asked us to leave this location,” an inspector wrote in a report, which they did. Hours later, the plume of smoke was still visible from 10 miles away.

Though this violation and others at the same plant could have entailed millions in penalties, the agency offered Westlake a $350,000 settlement, according to an email from Beth Clemons, a Kentucky environmental enforcement specialist, to Westlake. In the email, obtained through open records requests, Clemons called it “a good deal.”

Westlake flatly disagreed. “$350,000 may be a good deal if there were violations, which we clearly believe there are not,” Kevin Sheridan, a Westlake health, safety and environment manager, wrote in an email.

Clemons responded that state regulators believed “the violations are valid and we are pretty much in total disagreement with what you are saying.”

The parties eventually agreed on a $175,000 penalty and a list of required repairs — a sanction that experts say amounts to a financial hiccup for the corporation that owns Westlake. Last year, Westlake’s parent company, Westlake Corporation, reported $2 billion in net income from dozens of facilities across North America, Europe and Asia.

Such penalties are “like a nuisance to the facility. It doesn’t serve as a significant deterrent,” said Scott Throwe, a former senior staffer in the EPA’s Office of Enforcement and Compliance Assurance. Wealthy corporations see it as “the cost of doing business.”

In response to questions about the effectiveness of its enforcement actions, John Mura, director of communication for the Kentucky regulator, said in a statement that his agency “remains committed to safeguarding the health of all Kentuckians and believes that it has acted appropriately under its regulatory authority.”

Even the better-resourced EPA rarely seeks maximum fines, said George Czerniak, a former enforcement officer in EPA’s Midwest regional office. Doing so involves going to court, and there is no guarantee the judge will rule favorably. The risk, he said, has made the agency skittish about pursuing aggressive sanctions in court. In the 35 years he spent on air pollution enforcement covering six states, Czerniak recalled fewer than 20 cases that ended up before a judge or jury.

If the EPA is going to take a case to court, then it needs to be “assured this is an important case,” Czerniak said — and one that “we can win.”

Limited budgets and EPA leaders’ changing priorities drove a decline in EPA enforcement actions from 2007 to 2018, according to a recent EPA Inspector General report. In 2009, the office that manages Kentucky conducted 2,700 inspections and other related activities to ensure polluters were following the law; that number plummeted more than 50% over the next decade. After Donald Trump became president, his administration deferred more enforcement cases to the states; Throwe said state agencies are more hamstrung by political pressure and less able to act decisively. “That’s why EPA is supposed to be the neutral entity that goes in,” he said.

The EPA wrapped up another investigation of Westlake in 2019, issuing a consent agreement and final order for a series of leaks that occurred more recently. The order, which is less serious than a consent decree, came with a $49,000 penalty. The company also had to buy $183,500 worth of equipment for local emergency responders. Four additional EPA inquiries of Westlake violations over the past decade have resulted in less than $150,000 in penalties.

Throwe said it would have been more effective to require Westlake to install no-leak valves and other devices to reduce leaks.

“This shows how hard it is to actually effect change,” he said.

“You Can’t Use That”

Manufacturers in Calvert City benefited from yet another flaw in oversight: Even when regulators stocked the town with air monitors that logged damning evidence, bureaucratic bungles and missed opportunities rendered them virtually useless.

Alarm bells about dangerously dirty air began going off as far back as 2005. Some of the more than 10,000 air samples collected statewide by Kentucky regulators over the prior 15 years showed “levels of concern” in Calvert City, and officials announced a work group to investigate “elevated levels of hazardous air pollutants,” the Courier-Journal in Louisville, Kentucky, reported.

Between 2005 and 2007, state regulators installed five monitors in town, including the one at Calvert City Elementary School, across the street from the Little Bo Peep day care center.

Air monitors installed between 2005 and 2007.

Once every six days, the monitors took a 24-hour sample that was analyzed for ethylene dichloride, vinyl chloride and other hazardous pollutants. “What they’ve done here is way more air monitoring than what’s required by any EPA program,” said Morin, the Northeastern air pollution expert. “So the state clearly recognized there was some issue they wanted to deal with.”

By 2015, a quarter of the samples from the monitor closest to Westlake’s vinyls plant had levels of ethylene dichloride that violated EPA’s long-term cancer risk guidelines.

But an EPA audit that year found a critical flaw in the data; the state had never created a quality-assurance plan for the monitors, detailing the procedures to ensure that the collected data was reliable and accurate. Neglecting to do so, Throwe said, “gives ammunition to the industry to say, ‘You can’t use that.’”

Kentucky officials say they didn’t break any rules in their failure to implement a quality-assurance plan. But a spokesperson for the EPA regional office in charge of Kentucky said the federal government required such a plan.

The agency ordered the state to develop one in 2015, but two years later Kentucky still didn’t have one. By then, every one of the five monitors had captured elevated cancer risks, with ethylene dichloride and vinyl chloride the chief culprits. The EPA considers a 1 in 10,000 risk as acceptable, meaning that if 10,000 people in an area are exposed to a certain level of hazardous air pollution over a lifetime, at least one person would develop cancer as a result. (These EPA guidelines are used to calculate community cancer risk, and it’s nearly impossible to tie an individual cancer case to emissions from a specific facility.) In Calvert City, at least one sample showed cumulative risk as high as 60 times the limit, according to a 2017 risk screening analysis conducted by the EPA.

“Overall, the weight of evidence indicates that high levels of several VOC air toxics are present in the air in the Calvert City area,” concluded a report from Kentucky regulators and the EPA, while acknowledging that the lack of a quality-assurance plan “may affect the potential legal defensibility of the prior data collected.”

Mura said the state didn’t develop a plan because “no specific data monitoring objective was identified by EPA or Kentucky for the data collected.” Mura said his agency doesn’t know how many residents were exposed to those concentrations or for how long.

The failure to come up with a plan — rendering the results vulnerable to challenge — was baffling to experts and advocates. Monitoring for hazardous air pollutants is a costly, painstaking endeavor; no regulator would operate multiple monitors for years without a good reason, several experts told ProPublica. “You would think you’d want to get data that you can use,” Czerniak said.

And despite its worrisome conclusions, neither the EPA nor state regulators told residents about the cancer analysis. Billy Pitts, public health director of the Marshall County Health Department, said no one has contacted his office.

“We’ll Cross Those Bridges When We Get There”

It wasn’t until 2020 — five years after it was ordered to do so and 15 years after concerns about toxic air pollution were first raised — that Kentucky finally put in place a quality-assurance plan that would make the monitors’ data usable in serious enforcement efforts. It was the seventh straight year that one of Westlake’s plants emitted more ethylene dichloride than any other polluter in the country.

In 2020, the EPA installed new monitors in town after conducting air modeling to find the areas with the highest concentrations of the dangerous chemicals. The agency modeled vinyl chloride and ethylene dichloride emissions from the three Westlake facilities and three other nearby plants. Federal data shows that Westlake releases far more of these compounds than the other companies: Since 2010, only one of the non-Westlake plants has leaked vinyl chloride (a 15-pound leak in 2014), and none has leaked ethylene dichloride, according to state records. In contrast, regulators have cited Westlake at least a dozen times for leaking these and other hazardous compounds.

EPA and state regulators are analyzing data from the new monitors (and the one at the school) that was gathered from October 2020 to September 2021. A cancer risk analysis will be shared with the community once it’s complete.

Air monitors for the October 2020-September 2021 study. The EPA modeled emissions from the six facilities shown in order to determine the monitors’ locations. Two of the monitors were placed to catch the highest concentrations of ethylene dichloride and vinyl chloride; the monitor at the school indicates what people are exposed to near the center of town.

If the results show a cause for concern, then “we’ll cross those bridges when we get there,” said Pitts, the health director, during an interview in his office. After ProPublica described the elevated levels from the past decade, Pitts said he wouldn’t “get too concerned until I see the facts that are presented.”

He later explained his department conducts a community health assessment once every three years, using data from local hospitals, schools and other sources. After ProPublica showed him air-monitoring reports from the EPA and state regulators, Pitts shared the materials with the team developing the health assessment, he said. The next assessment is scheduled for June, and the community would help decide the top public health concerns.

Interim updates from the current study, obtained through public records requests, show higher concentrations than the earlier data. While average ethylene dichloride levels at one monitor near the Westlake plants exceeded the EPA’s cancer risk guideline by 40% in 2017, the newer data showed the levels exceeded the limit by 600%. When ProPublica showed the data to Morin, the concentrations were so high in Calvert City that she initially thought there’d been a mistake.

Czerniak, the former EPA regional enforcement officer, said that if he were in charge, he would assign three of the federal agency’s technical experts and a couple of attorneys to do a deep dive on the Westlake plants and neighboring polluters. Czerniak has conducted similar investigations during his time at EPA, he said. If the agency found that specific air-permit violations at any Calvert City facility are pushing air pollution past acceptable cancer risk, he said, it should require the facilities to fix the root cause. If the excessive risk is caused by the sheer quantity of local facilities, the case could be referred to EPA headquarters with the request that tighter emission limits be put on these types of facilities.

In an email, Carroll, the EPA spokesperson, said the agency “is continuing to take steps to address noncompliance” at Westlake’s plants. In response to questions about the company’s pattern of violations, Carroll cited the ongoing study in Calvert City and said the EPA “will address any noncompliance identified using the appropriate enforcement tools.”

The EPA is also investigating Westlake’s flares at its Calvert City and Lake Charles, Louisiana, facilities, according to the company’s 2021 annual report to the U.S. Securities and Exchange Commission. The EPA has worked on the case since 2014 and “indicated that it is seeking a consent decree that would obligate us to take corrective actions,” the report said. The decree could lead to penalties “in excess of $1 million,” the report continued. “We do not believe that the resolution of these flare matters will have a material adverse effect on our financial condition, results of operations or cash flows.” (An EPA spokesperson said the agency “cannot comment on potential or ongoing investigations.”)

It might be time to raise the stakes by building a criminal case against Westlake, Czerniak said, as even the threat of a criminal investigation could change the facility’s behavior. “I realize that agencies have limited capacity to undertake criminal-type proceedings, but heck, when you have a community that is exposed” to cancer risks up to 60 times the EPA’s acceptable limit, he said, “make no mistake ... there are people who are being impacted.”

The motivation to hold the polluter accountable may need to come from regulators, as most residents ProPublica encountered in Calvert City were unaware of Westlake’s environmental record or the pattern of alarming air-monitoring data. When a reporter and photographer visited community leaders in March, we found that no one had heard of ethylene dichloride, and most did not know there was an air monitor at the school. Some expressed concern after learning about elevated levels of carcinogens.

“We know the EPA monitors the area,” said Tammy Blackwell, director of the county library system. “I would hope that if anything was significant enough that we needed to be made aware of it, the EPA would let us know.”

Tammy Blackwell, Director of the Marshall County Public Library.

Marshall County Schools Superintendent Steve Miracle was even blunter: “You can’t just record it. ... You would think if they’re the EPA, they can actually go in and help those companies come up with a solution for correcting that.”

Others did not want to talk about the companies that support the tax base and employ their friends and family.

Mayor Gene Colburn didn’t respond to multiple inquiries for this story, including messages left in person. (The mayor and three of the six City Council members work for local chemical plants, but not for Westlake.) The principal of Calvert City Elementary School, Kendra Glenn, declined through a representative to listen to a single question when ProPublica reporters visited in March.

Connie Monroe, who owns the Little Bo Peep day care across the street, said that she’d want to learn more about the pollution if it’s harming the kids she cares for, but that her husband recently retired from a local chemical plant. “It’s made our living,” she said, “so I’m not going to say anything critical.”

Chemical plants “do a lot for the community,” retired nurse Sherry Todd said on a recent spring day while watching her grandson’s soccer practice. The plants pay taxes that go toward “making Calvert City nice.” She had no qualms about air pollution or the plants hurting the town. “I can’t believe they’d do something intentionally,” she said.

Sherry Todd, right, watches her grandson's soccer practice.

About the Story

Last year, ProPublica conducted an analysis of data from the EPA’s Risk Screening Environmental Indicators model to identify hot spots of cancer-causing industrial air pollution across the United States. We then compared the results of our analysis to data from the EPA’s Air Quality System (AQS), which is a database of state, local and federally collected ambient air-monitoring samples. Because the EPA does not require states to set up air monitors near most major sources of toxic air pollution, we were unable to make comparisons in many of the hot spots that we identified. We filtered and sorted the data to understand which air monitors in the AQS network were picking up high concentrations of cancer-causing chemicals. Calvert City stood out, particularly for its concentrations of ethylene dichloride, a potent human carcinogen. Our analysis of the RSEI model indicated that Westlake was the dominant driver of cancer risk in Calvert City, so we began investigating the enforcement history of the facility and the reason the monitoring program was established there in the first place. We obtained documents through public records requests and correspondence with the EPA and Kentucky Division for Air Quality.

Do You Live Near an Industrial Facility? Help Us Investigate.

Mariam Elba contributed research.

Update, May 19, 2022: This story has been updated to reflect that information about the air-monitoring data could end up in the upcoming Marshall County Community Health Assessment.

by Lisa Song and Lylla Younes, photography by Kathleen Flynn for ProPublica

New Documents Show How Drug Companies Targeted Doctors to Increase Opioid Prescriptions

2 years 6 months ago

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Twelve years ago, ProPublica set out to build a first-of-its-kind tool that would allow users, with a single search, to see whether their doctors were receiving money from an array of pharmaceutical companies.

Dollars for Docs generated a huge rush of interest. Readers searched the database tens of millions of times to see if their doctors had financial ties to the companies that made the drugs they prescribed. Law enforcement officials used it to investigate drug company marketing, drug companies looked up their competitors and doctors searched for themselves.

A trove of recently released documents offers the public an unvarnished look inside those relationships from the perspective of drug companies themselves. The material shows company officials worked to deflect the media scrutiny even as they sought to take advantage of relationships that they had built with doctors they were paying significant sums of money.

The documents were published online by the University of California San Francisco and Johns Hopkins University and became available as a result of drugmakers settling lawsuits against them for their role in the opioid crisis. These are exactly the kinds of documents we wanted to see when we started working on the Dollars for Docs series in 2010, but of course, no one was willing to show them to us.

Reading them should give patients even more pause about the financial entanglements their doctors have with the drug industry and spur them to ask questions (we have some ideas about specifics below).

The Washington Post mined the records and found that more than a quarter of the 239 medical professionals ranked as top prescribers by opioid maker Mallinckrodt Pharmaceuticals in 2013 “were later convicted of crimes related to their medical practices, had their medical licenses suspended or revoked, or paid state or federal fines after being accused of wrongdoing.” The article was replete with examples of doctors whose problems were well known but who were targeted anyway by sales representatives.

This was a familiar finding. Back in 2010, we found that hundreds of doctors paid by drug companies to promote their drugs had been accused of professional misconduct, were disciplined by state boards or lacked credentials as researchers or specialists.

The document trove included some mentions of our earlier work.

Among them: a 2010 email from a senior director of global compliance at Cephalon Inc., a small drug company that was subsequently acquired by Teva Pharmaceuticals.

In the message, the director notes that what ProPublica found — Cephalon had paid doctors who had been sanctioned by their states to deliver promotional talks on its behalf — was, indeed, true, and that the company was undertaking a review of all of its doctors in light of our findings.

(Screenshot by ProPublica)

Another document included a list of those doctors.

And there’s a 2017 presentation from an official at Mallinckrodt about the state of transparency around payments to doctors. It called ProPublica the “most thorough and vocal media source re: Open Payments data. Their analyses and searchable database are likely the go-to place for anyone wanting to do a comparison of companies and physicians.”

(Screenshot by ProPublica)

Our Dollars for Docs data often was picked up by news outlets across the country, including WNBC-TV in New York City. In one document, a spokesperson for the company Covidien was happy that the reporter had not asked about Exalgo, a new opioid made by the company. “Based on our conversation, I do not believe that the reporter is aware of Exalgo — and I am certainly not planning to make him aware,” she wrote in 2013.

The document trove also shows firsthand how drug companies targeted doctors and used information purchased from data brokers to rank them and gain insight on how many of their drugs each doctor prescribed each week.

When we first started working on our stories, we were very eager to see what pharma drug reps knew about the prescribing practices of doctors. So we asked a company then called IMS Health, which purchased data from pharmacies on which drugs each doctor prescribed and then sold it to the drug companies, if it would sell that data to us. IMS, now known as IQVIA, told us we could not buy the data at any cost.

The document trove includes a number of samples of what that data looks like and makes clear why the industry was so reluctant to have it come into public view.

The following chart was put together for Covidien about Exalgo. For every doctor in the Las Vegas region, it shows their prescribing, by week, of the drug and notes whether they are a “target.”

(Screenshot by ProPublica)

Documents then show how such information was used when meeting with doctors. In this email, a Covidien drug rep brags about how she was able to turn a doctor’s office staff into allies who would feed her information and talk up the company’s drugs to the doctor. “The nurse got very excited ... and wanted to know all about the product, the coverage, how to use it, etc. She even took the liberty of detailing the doctor when he walked into to (sic) lunch as well.”

(Screenshot by ProPublica)

The documents also showed how closely Covidien measured the performance of drug reps in getting doctors to prescribe their drugs.

(Screenshot by ProPublica)

Covidien spun off Mallinckrodt in 2013 as a specialty pharmaceutical company, managing drugs such as Exalgo. (Mallinckrodt stopped promoting Exalgo in 2015 and no longer sells it.) Covidien focused on medical devices and was acquired by Medtronic.

In 2020, Mallinckrodt agreed to pay $1.6 billion to settle with states and the federal government for its role in the opioid crisis. That figure has since grown to $1.725 billion. In response to a request for comment, a spokesperson for the company sent a statement identical to one it had sent to the Post: “While Mallinckrodt does not agree with the allegations regarding decade-old issues, it has spent the past three years negotiating a comprehensive, complete and final settlement that resolves the opioid litigation against it, provides $1.725 billion to a trust serving affected communities, and allows Mallinckrodt to continue to serve patients with critical health needs under an independently monitored compliance program.”

This year, Mallinckrodt also agreed to pay $260 million to resolve allegations that it underpaid rebates to the Medicaid program and paid illegal kickbacks related to another of its drugs, H.P. Acthar Gel. As it happens, ProPublica has also written about that drug, raising questions about the public spending on it in light of questions about its efficacy.

We stopped updating our Dollars for Docs tool in 2019 because the government’s Open Payments database is robust and refreshed annually and has gotten better with time.

Still, searching through these documents reinforced my view of how important it is for patients to know about their doctors’ relationships with drug companies and talk directly to their doctors about the drugs they are prescribed.

Here are some of the questions you may want to ask:

  • What type of work do you do with these companies?
  • Have you prescribed me any drugs that are manufactured by companies you’ve taken payments from?
  • Are there non-drug alternatives that I may want to consider first?
  • Are there less expensive generic alternatives to the drugs you have prescribed?
  • What devices have you used in my care that are manufactured by companies you’ve taken payments from?

Have you used Dollars for Docs or Open Payments? What have you found? I’d love to hear your story.

by Charles Ornstein

The State Behind Roe’s Likely Demise Also Does the Least for New Parents in Need

2 years 6 months ago

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When it comes to reproductive care, Mississippi has a dual distinction. The state spawned the law that likely will lead to the Supreme Court striking down Roe v. Wade. It is also unique among Deep South states for doing the least to provide health care coverage to low-income people who have given birth.

Mississippians on Medicaid, the government health insurance program for the poor, lose coverage a mere 60 days after childbirth. That’s often well before the onset of postpartum depression or life-threatening, birth-related infections: A 2020 study found that people racked up 81% of their postpartum expenses between 60 days and a year after delivery. And Mississippi’s own Maternal Mortality Review Committee found that 37% of pregnancy-related deaths between 2013 and 2016 occurred more than six weeks postpartum.

Every other state in the Deep South has extended or is in the process of extending Medicaid coverage to 12 months postpartum. Wyoming and South Dakota are the only other states where trigger laws will outlaw nearly all abortions if Roe falls and where lawmakers haven’t expanded Medicaid or extended postpartum coverage.

“It’s hypocrisy to say that we are pro-life on one end, that we want to protect the baby, but yet you don’t want to pass this kind of legislation that will protect that mom who has to bear the responsibility of that child,” said Cassandra Welchlin, executive director of the MS Black Women’s Roundtable, a nonprofit that works at the intersection of race, gender and economic justice.

Efforts to extend coverage past 60 days have repeatedly failed in Mississippi — where 60% of births are covered by Medicaid — despite support from major medical associations and legislators on both sides of the aisle.

Mississippi House Speaker Philip Gunn, a Republican, said shortly after he killed the most recent bill that would’ve extended postpartum coverage that he’s against expanding any form of Medicaid. “We need to look for ways to keep people off, not put them on,” he told The Associated Press in March. When asked about the issue during a May 8 interview on CNN, Mississippi Gov. Tate Reeves said, “When you talk about these young ladies, the best thing we can do for them is to provide and improve educational opportunities for them.” (Neither Gunn nor Reeves responded to requests for comment.)

During the pandemic, a change in federal rules prevented states from cutting off Medicaid recipients, which has allowed people in Mississippi and elsewhere to retain postpartum coverage beyond 60 days. But at the end of the federal public health emergency declaration — which is set to expire in July 2022 — states will revert to their prior policies. “What we are afraid of is that when that does end, it will go back to what we knew was pre-pandemic health care,” Welchlin said.

We discussed the implications of Mississippi’s post-Roe reality with Welchlin and two other experts in the field: Alina Salganicoff, the Kaiser Family Foundation’s director for women’s health policy, and Andrea Miller, president of the National Institute for Reproductive Health. Their answers have been lightly edited for length and clarity.

What services does Medicaid provide postpartum?

Salganicoff: Typically, everything from assistance if the person is having problems breastfeeding to screening for depression services.

Welchlin: We know the struggles of so many who have had life threatening illnesses such as heart conditions and hypertension. We know of course that Medicaid helps in that.

What have you seen in terms of postpartum needs in Mississippi?

Welchlin: One of the stories that really touched me over the course of this pandemic was that of a mom who already had a child, and she needed access to child care so she could get back and forth to the doctor. During this particular pregnancy she had a severe heart disorder where she couldn’t breathe, and she had to get rushed to the hospital. Because she was so connected to doulas and a supportive care organization like us, she was able to get admitted and sure enough that’s when they diagnosed her with that heart condition. And she was a mom on Medicaid.

What happens when mothers lose Medicaid coverage postpartum?

Miller: Only giving someone two months postpartum doesn’t allow for the kind of continuation of care that you need. If there are indications of problems in the postpartum period, they don’t all necessarily show up within the first two months. And we certainly know that the ability to have a healthy infant and keep an infant healthy is also related to whether you have coverage. The extension to 12 months really allows for that kind of continuum of care.

Welchlin: We know in the state of Mississippi, women die at higher rates, and of course it’s higher for Black women. And so, when women don’t have that coverage, what happens is they die.

What does it mean to not extend postpartum Medicaid coverage if Roe falls?

Miller: These bans on abortion are going to be layered on top of an already-unconscionable maternal and infant health crisis that most particularly impacts those who are struggling to make ends meet. It particularly impacts Black women and other communities of color. ... A state like Mississippi that is so clearly wanting to ban abortions — the fact that they refuse to extend basic health care benefits that will help during pregnancy and postpartum just clearly indicates that they are not interested in the health and well-being of women and families and children, that they are purely on an ideological crusade.

Anything else that you wanted to add?

Salganicoff: We’re very focused on that first year of life. But if you’re speaking about a woman who is not going to be able to get an abortion that she seeks and ends up carrying the pregnancy, the supports that she’s going to need and her child is going to need go far beyond the first year of life.

Miller: You can’t have a conversation about legality or soon-to-be illegality of abortion in these states and not have a conversation simultaneously about the existing crisis around maternal and infant health. These things are all interconnected, and that’s why it is so deeply disturbing that the states trying to ban abortion are the same states that are refusing to expand Medicaid under the ACA, that are failing to take advantage of the ability to extend postpartum [coverage] by 12 months, that don’t invest in child care, that don’t invest in education — these are all part of the same conversation.

Welchlin: Audre Lorde said, “There is no such thing as a single-issue struggle because we do not live single-issue lives.” So, abortion access, reproductive justice, voting rights, racial justice, gender equity — these are not separate issues, they are intersecting issues that collectively determine the quality of our lives.

by Sarah Smith

The COVID Testing Company That Missed 96% of Cases

2 years 6 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

This article was co-published with The Nevada Independent and Block Club Chicago.

Last winter’s sports season had just begun, and the epidemiology staff at Nevada’s second-largest health district were busy calling the parents of high school athletes who’d tested positive for COVID-19.

A state mandate required unvaccinated or traveling athletes to get tested weekly. A nasal swab for an on-site antigen test produced rapid results in 15 minutes; a second swab was sent to an out-of-state laboratory for a more sensitive PCR test. Parents of students who tested positive on the rapid tests would get phone calls from the health district.

Because families already knew about positive rapid results, the phone calls should have been a routine follow-up to start tracking anyone who had had contact with the infected person. But for some reason, parents were repeatedly disputing that their children had the virus.

“These parents were pretty adamant that their kid was not a case and that they could play,” said Heather Kerwin, epidemiology program manager for the Washoe County Health District.

Heather Kerwin, epidemiology program manager for the Washoe County Health District (Emily Najera for ProPublica)

A pattern emerged. Athletes would test positive on the rapid test. But before a contact tracer could call, parents would learn from the testing company that their children’s PCR tests, typically the gold standard of COVID-19 testing, were negative, even for students with symptoms. Kerwin investigated and learned the University of Nevada Reno campus was seeing similarly conflicting results.

The university and school district had something in common. Both had recently hired the same company to conduct their testing: Northshore Clinical Labs.

The Chicago-based company was aggressively pursuing government customers in Nevada. In fact, as Kerwin was learning about the inconsistent results, Washoe County Assistant Manager David Solaro was negotiating with Northshore to provide testing for public employees and local residents. Kerwin thought county officials should know there might be a problem with the company’s tests, and encouraged her contact at the school district and her boss, COVID-19 Regional Operations Chief Jim English, to alert Solaro before an agreement was finalized.

Solaro signed the agreement anyway.

“Why did this go through without a discussion of their discordant results? This is going to cause absolute mayhem,” Kerwin wrote English when she learned the agreement had been signed.

English wrote back: “I tried. No one listens to me sorry.”

(Screenshot highlighted and redacted by ProPublica)

Kerwin’s instincts were right. As state scientists would later verify, something “catastrophic” was wrong with Northshore’s PCR tests.

A ProPublica investigation into the company’s operations in Nevada, including a review of more than 3,000 pages of internal emails obtained through public records requests, shows the Chicago laboratory’s testing was unreliable from the start. As evidence mounted that Northshore was telling infected people that they had tested negative for the virus, government managers in Nevada ignored their own scientists’ warnings and expanded the lab’s testing beyond schools to the general public.

Ultimately, state public health officials found that Northshore’s PCR tests missed 96% of the positive cases from the university campus — errors that sent people infected with COVID-19 back into the community. But to date, neither state nor county health officials have alerted the public to the inaccurate tests.

ProPublica’s investigation also found that Northshore used political connections, including contracting with the sons of a close friend to the governor, to fast-track its state laboratory license application and secure testing agreements with five government entities in the state. Those agreements not only gave Northshore the exclusive right to test and bill for thousands of people a week, they also gave its lab a legitimacy lacking among upstart testing companies that had set up shop in strip malls and parking lots across the country.

In mid-January, when state regulators finally launched an investigation into Northshore, they found the company had been operating unlicensed sites across Nevada. They allowed the company to continue its rapid antigen testing anyway.

Northshore, which said it had operations in more than 20 states, pitched free COVID-19 testing, telling local officials the tests would be paid for by individual insurance plans or a federal government program for the uninsured. But emails reviewed by ProPublica raised serious questions about the company’s billing practices.

In its pitch emails, Northshore told multiple government agencies it planned to bill the federal program for the uninsured even for those who might have insurance but declined to provide the information. In one case, a Washoe County School District official said in an email the company recommended insured individuals withhold their insurance information so the company could bill the government instead.

As of May 5, the company had collected nearly $165 million from the federal government, 11th most among more than 28,000 companies nationwide seeking reimbursement for testing uninsured individuals.

Northshore, through the public relations firm Weber Shandwick, repeatedly declined requests for interviews. After ProPublica provided the company with a summary of its findings, a spokesperson asked for additional time to address them, then responded: “Northshore declines to comment.”

Although demand for COVID-19 tests waned after the initial omicron surge passed, testing remains a key component of President Joe Biden’s pandemic mitigation strategy. What happened in Nevada offers a cautionary tale as local governments search for ways to provide testing through a system that relies on massive government spending to attract companies to meet the demand.

“It’s still a profit-hungry model,” said Alex Greninger, assistant director of the University of Washington’s virology lab. The guarantee of large payouts prompts companies to take on too many clients too quickly, he added: “Most groups get overwhelmed and exceed clinical capacity. Your operations fall apart.”

“I Do Not Understand Why This Lab Gets Preferential Treatment”

Northshore Clinical Labs has been in business for nearly three decades, but its leadership changed in July 2020. It is now run by three men with no apparent clinical laboratory experience and a history of fraud allegations: brothers Hirsh and Gaurav Mohindra and their associate Omar Hussain.

The Mohindra brothers have been involved in a variety of business pursuits unrelated to the medical field. Hirsh Mohindra was a real estate developer and Gaurav Mohindra lists himself on his LinkedIn page as an intellectual property lawyer.

Together they ran a debt collection business until 2016, when the Federal Trade Commission accused them of operating a scheme in which they bullied people into paying off debt they didn’t owe. As part of a settlement agreement, the brothers and a partner surrendered $9 million in assets and were banned from the debt collection business.

Hirsh Mohindra later served time in prison for an unrelated mortgage fraud case. He was released in February 2020, just as the pandemic was beginning and five months before his mother, Meena Mohindra, was listed as the new president of Northshore in Illinois Secretary of State filings.

In 2019, the FTC accused Hussain of participating in a phantom-debt collection ring with ties to the Mohindras’ case. He also agreed to a lifetime ban on debt collection activities and to surrender assets. The Illinois Secretary of State’s Office currently lists Hussain as Northshore’s president, replacing Meena Mohindra.

The Mohindras did not respond to requests for comment. Hussain declined an interview through a spokesperson.

Last year, the company began a dramatic national expansion. In Nevada, it contracted with Greg and Angelo Palivos, brothers with deep ties to both Chicago and Las Vegas, to build clientele and manage operations. Their father, Peter Palivos, is a prolific contributor to Nevada political campaigns and close enough with Gov. Steve Sisolak that the two met regularly in the early days of the governor’s administration. (Peter Palivos also served time in prison on an obstruction of justice charge related to a fraud case in Chicago, though he maintained he was set up by the U.S. Attorney’s Office for not helping prosecutors build a case against former Illinois Gov. George Ryan.)

The Palivoses’ first task was to get the lab licensed in Nevada. They turned to an influential ally for help: Mike Willden, a former director of the Nevada Department of Health and Human Services, who now works for The Perkins Company lobbying firm, run by former Assembly Speaker Richard Perkins. Willden had worked with Peter Palivos on a past health care venture that didn’t pan out.

Willden said he talked with the manager of the state’s licensing office, who explained to Northshore how to submit its application. But when the Palivos brothers thought it was taking too long, Willden called and emailed his contacts in the governor’s office and laboratory licensing bureau — an agency he had overseen as head of DHHS.

Willden told ProPublica he helped the Palivos brothers as a favor and because he thought the company could help address a dearth of testing capacity in Nevada.

“My understanding was there was a license pending, and in this world of testing where it would take three to five days to get results and everybody was calling me frustrated,” Willden said. “I said, ‘Look, here’s someone who can help you with testing.’”

(Screenshot redacted by ProPublica)

At Willden’s urging, Sisolak’s chief of staff, Yvanna Cancela, nudged the director of the state’s pandemic response, who nudged the head of the state’s licensing bureau, Cody Phinney. She in turn encouraged the agency to move up its inspection of Northshore’s Nevada headquarters in Las Vegas — much to the dismay of the supervising inspector.

Inspector Bradley Waples would let Northshore skip to the head of the line, but not before complaining to Phinney.

“I want to let you know how frustrating it is to have my staff schedule their inspections only to have labs use previous directors to influence or pressure us into having businesses that they represent, jump ahead of others that are patiently waiting for their inspections,” he wrote.

Waples also noted in his email to Phinney that Northshore would be processing specimens in Illinois, which would delay results. “There are a number of places in Nevada that people can go to get COVID tests in which their results will be available the same day or sooner,” he wrote. “This is why I do not understand why this lab gets preferential treatment while other labs are required to patiently wait.”

(Screenshot highlighted by ProPublica)

Three months later, Waples would lead the investigation into Northshore’s testing operations.

In an interview with ProPublica, Phinney said she understood Waples’ frustrations but didn’t view Willden’s request as an attempt to influence the process.

“I didn’t perceive that there was fast-tracking,” she said. “There were questions about when we could get an inspector out there. Certainly, we have staff who are trying to work as fast as they can, and they were being asked to work faster, that’s frustrating.”

Through the agency’s spokesperson, Waples declined to comment.

Willden also downplayed his influence, saying the state was “getting broad pressure to help speed up testing and results. I seriously doubt my inquiries carry that much weight.”

Willden said that he wasn’t paid by the Palivos brothers but that they sent him caramel popcorn and four steaks at Christmas as a gesture of appreciation.

Sisolak spokesperson, Meghin Delaney, said in a written statement the governor has not had conversations with the Palivos family about Northshore’s operations. She said the state’s pandemic response coordinator helped with Northshore’s licensing to avoid a gap in testing service.

“Throughout the pandemic, the State of Nevada has worked to remove barriers and make services available to Nevadans while working through existing regulatory and licensing processes to move expeditiously without cutting corners,” Delaney said. “State employees continue to work tirelessly on behalf of Nevadans, and the State will use lessons learned from across the pandemic to make investments and strengthen Nevada’s public health systems moving forward.”

The Palivos brothers, in a written statement from their spokesperson, Elizabeth Trosper, said they were unaware of the Northshore owners’ history of fraud allegations when they agreed to do work for the company. In addition to generating sales leads for Northshore, Trosper said, their role in Nevada was to manage the local workforce of testers and the collection of specimens.

“They relied on Northshore for standard operating procedures, licensing, compliance, test supplies, molecular lab work, reporting of test results, and billing,” she said.

She said neither the brothers nor their father spoke with Sisolak about Northshore.

“Greg and Angelo Palivos’ involvement with testing was driven by their desire to assist during the COVID-19 crisis,” Trosper said.

“They Make It Sound Almost Too Good to Be True”

When Northshore got its Nevada license in November, it was for a single location in Las Vegas. The company did not complete the paperwork and site inspections required to operate statewide. Still, Northshore began an aggressive push to woo local government agencies across the state. The climate was ripe for what they were offering: free tests.

The delta wave was subsiding and omicron hadn’t yet emerged. But that didn’t mean the need for testing was starting to wane. Quite the opposite.

An OSHA rule mandating large employers to regularly test unvaccinated workers was about to take effect. Universities in Nevada were looking to increase surveillance testing in order to resume in-person learning. School districts were adopting the CDC’s “test-to-stay” recommendation to allow K-12 students who had contact with a COVID-19 case to remain in class if they could produce a negative test. And the governor’s coronavirus plan required regular tests for student-athletes, coaches and others participating in school activities.

That all meant thousands of people would need weekly testing even without a surge of infections. And for each person, Northshore could collect between $165 and $260 for administering the two tests.

At the same time, the Washoe County Health District, a reliable provider of community COVID-19 testing since the start of the pandemic, wanted to focus its testing on communities with less access to health care, such as people without health insurance or a primary care doctor, rather than being the go-to source for the community at large.

Northshore’s pitch was difficult for pandemic-weary government managers to refuse: We can test everyone who needs it on site, we can turn around results in 24 to 48 hours, and it won’t cost you a dime.

“They are very good salespeople,” Kerwin said. “They make it sound almost too good to be true. They hire all the folks. They do it very quickly for you. You don’t have to staff it.”

English, Washoe County’s COVID-19 operations manager, said he was inundated with pitches from labs offering testing. He ignored most of them. But Northshore came recommended by a high-profile doctor who had worked with the district on its COVID-19 vaccination program. English and Kerwin met with Northshore officials and verified they had a state license and could report results through the state’s contact-tracing system.

Then they began referring Northshore to other local governments in the region that were scrambling to find testing resources.

“We didn’t recommend, we referred,” English said. “We told them they had to do their own due diligence.”

(Screenshot redacted by ProPublica)

Government managers interviewed by ProPublica acknowledged they did only a cursory vetting of Northshore, verifying their license and relying on referrals from people they trusted. They also were swayed by the company’s claims of successful testing operations in other states.

By November, Northshore had agreements with the University of Nevada Reno and the Washoe County School District. By December, Washoe County itself had signed on. In Southern Nevada, the city of Las Vegas signed an agreement for testing in multiple locations, and the city of Henderson allowed the lab to use a parking lot at one of its recreation centers.

Had officials done more research, they would have found Northshore didn’t have the proper licensing to operate statewide.

But government rules that might have ensured a more thorough vetting are suspended during emergencies, such as a pandemic, to allow a more nimble response. More than two years into this pandemic, Washoe County continues to operate under emergency response orders.

Still, Greninger, the University of Washington virology lab’s assistant director, said government managers can take measures to both avoid burdensome bureaucracy and avoid being taken advantage of. For example, they can expand local labs with a documented track record instead of handing out contracts for huge numbers of tests to a single new provider.

“Go to the people with the track record. And try to distribute your risk a little bit,” he said.

“That’s Fraudulent”

Although an attractive sales pitch, Northshore’s promise of free tests was problematic.

The federal government had mandated that insurance plans cover diagnostic testing for COVID-19 ordered by a health care provider and created a fund to reimburse testing of uninsured patients. The law didn’t require insurance plans to cover testing for nonmedical reasons, such as employment requirements, screening for student-athletes and dorm residents or travel. Most major insurance plans do not cover such screening tests, according to Krutika Amin, a policy expert at the Kaiser Family Foundation, a health policy think tank.

(Screenshot highlighted and redacted by ProPublica)

Northshore, however, indicated it did not differentiate between the two types of testing in its billing, according to a Nov. 16 email exchange between Northshore’s business development director Razi Khan and University of Nevada Reno officials. The company was relying on a pandemic-specific federal guideline instructing health care providers treating patients to bill for COVID-19 tests as diagnostic tests whether or not the patient had symptoms or could pinpoint an exposure.

“In short, our interpretation” of that guideline “constitutes all COVID-19 testing as clinically necessary and therefore allows for full coverage,” Khan wrote to university officials. He also said Nevada’s positivity rate of 11% justified this billing approach.

Through a spokesperson, Khan declined to be interviewed.

On its registration forms, including for student-athlete screening, Northshore required individuals to sign a statement that they “may have been exposed to someone infected with COVID-19 during my routine daily activities” to be tested.

ProPublica also found an example of Northshore billing an insurance company for a screening test required for a mother and daughter to travel to a high school choir performance. The Reno mother emailed the district after her family’s insurance plan denied the two claims — totaling $470 — because Northshore was an out-of-network provider.

Laura Rich, the executive officer of the Nevada Public Employees’ Benefits Program, which insures most state of Nevada employees, emailed higher education officials after she had been briefed by Northshore on its plans. In the email, she called the practice of billing screening tests as diagnostic “fraudulent."

(Screenshot highlighted and redacted by ProPublica)

The Nevada System of Higher Education was considering hiring Northshore to test unvaccinated employees and to provide testing on Southern Nevada college campuses. Rich worried the state employee health plan would be deluged with claims for surveillance tests that it hadn’t budgeted for and was under no obligation to pay. But when she tried to alert decision-makers, Northshore again asked Willden to intervene.

“So I got a call from a certain lobbyist who got a call from Northshore and now I am roped into a meeting with Northshore next week,” Rich wrote in an email to the head of NSHE’s COVID-19 task force.

(Screenshot redacted by ProPublica)

Rich confirmed that the lobbyist was Willden. She said he didn’t apply pressure, he simply wanted to understand her agency’s concerns with Northshore’s billing practices. But she took from the conversation that Northshore thought her agency was trying to block the company from getting the contract with NSHE.

Ultimately, Rich prevailed in her opposition to Northshore billing the state employee insurance plan for what she believed was surveillance testing. University officials viewed it as unethical, according to the emails, and did not sign a contract with Northshore for the Las Vegas campuses.

Laura Rich, executive officer of the Nevada Public Employees’ Benefits Program (Emily Najera for ProPublica)

Northshore had a backup if insurance wasn’t available: the federal government’s fund for the uninsured.

Documents obtained by ProPublica indicate Northshore planned to bill that fund even for individuals who had insurance. According to Khan’s pitch emails to multiple government agencies, Northshore said it would seek reimbursement from the fund for those who “choose not to provide their health insurance.” Northshore also told the school district it would bill the federal fund if an insurance claim for the test was rejected and recommended the district instruct its employees to withhold their insurance information to avoid claims to its self-funded plan, according to emails from Leslie Allfree, who manages the district’s medical emergency response program.

That contradicts the rules of the program for uninsured patients run by the Health Resources & Services Administration. A spokesperson for the agency said it has safeguards to block testing companies from receiving reimbursement for insured clients, including a database where it can check clients’ insurance status. ProPublica was unable to determine if any Northshore claims were rejected for this reason. As of May 5, the company had been paid nearly $165 million from the fund.

Still, some government managers in Washoe County considered following Northshore’s advice to withhold insurance information on the testing forms.

(Screenshot redacted by ProPublica)

“The vendor recommends that those who are insured by self-insured plans, such as ours, not provide their insurance information and allow the vendor to submit for HRSA reimbursement as if they are not insured,” Allfree wrote. “I foresee messaging around this could be problematic.”

In an interview, Paul LaMarca, the district’s chief strategies officer, said the district did not end up instructing its employees to withhold their insurance information.

Trosper said the Palivos brothers had no responsibility over billing procedures.

“It Is Something Catastrophic”

As officials were debating who to bill for Northshore’s tests, a far larger problem was coming into focus.

The discordant antigen and PCR results at the school district were causing confusion about which students should be kept out of the classroom and which could return.

On Dec. 28, Laura Gingerich, assistant principal at North Valleys High School in Reno, wrote district administrators pleading for them to shut down testing because of the inconsistent results. She had personally tested positive on two rapid tests before receiving negative PCR results from Northshore despite having “every symptom on the checklist,” she wrote.

“I know for a fact this has happened to at least two other student-athletes,” she told administrators. “It is time to stop and question this process. It is not consistent. It is not reliable. We can do better.”

Gingerich did not respond to a request for an interview.

In response, Allfree confirmed the district was “seeing an unusually high number of inconsistent, or what we call discordant results” and was working with health officials to figure out the problem.

The next day, the Centers for Medicare and Medicaid Services cited the Northshore lab in Chicago for deficiencies that put the public in “immediate jeopardy,” including problems with shipping and labeling of patient specimens and inadequate employee training. The problems had affected 1.7 million tests, according to the CMS report.

But word of that investigation did not immediately reach Nevada officials, and Northshore continued signing agreements with local governments. Washoe County could see that the spreading omicron variant was going to require increased capacity. Despite the warnings from Kerwin and the school district about Northshore’s test results, Solaro, the county’s emergency manager, inked an agreement with Northshore to provide drive-up community testing starting Jan. 5.

Solaro said in an interview that the county had to have testing in place for the OSHA mandate, which ended up being struck down by the U.S. Supreme Court, and there were no other options.

“Northshore was in town. They were doing testing for the university and the school district. It seemed like a good move to get them on contract. They needed time to ramp up and hire people. It just seemed like all the right things to do,” Solaro said.

At the time, the concerns about Northshore’s testing were still “anecdotal,” Kerwin later told ProPublica. “I didn’t have any data.”

Data would soon arrive, thanks to a decision by Dr. Cheryl Hug-English, director of the University of Nevada Reno’s student health center. She had noticed contradictory results in the first weeks of testing and contacted Northshore several times looking for an explanation and a solution that never came.

With problematic test results piling up, Hug-English began running an experiment in December. She quietly sent patient specimens to both the lab in Chicago and the Nevada State Public Health Laboratory, which had done PCR testing for the campus prior to Northshore’s arrival. After a month, the results were clear: Northshore’s PCR process wasn’t working. More than 96% of the PCR results that came back positive from the state lab came back negative from Chicago.

(Screenshot highlighted and redacted by ProPublica)

Kerwin and Hug-English again tried to get answers from Northshore. Kerwin asked if the company was seeing similar problems at any of its other testing sites across the country.

“Oh, no, this is just a weird thing going on in Washoe,” Kerwin said she was told.

“I’m like, science says that’s probably not true. But they weren’t going to be any kind of transparent with us about the real reasons,” she said.

Kerwin asked the state lab to investigate why Northshore’s testing was so unreliable. State scientists exchanged emails with Northshore representatives, and, while they never arrived at a clear explanation, they came away determined that PCR testing from Chicago should stop.

“Without physically being in their laboratory, I can only guess at what is going wrong. But it is something catastrophic,” the state lab’s molecular supervisor, Andrew Gorzalski, wrote on Jan. 10. “My personal recommendation would be to stop using Northshore for SC2 PCR testing immediately.”

(Screenshot highlighted and redacted by ProPublica)

By that time, however, the mayhem that Kerwin had predicted was erupting. The omicron surge completely overwhelmed Northshore’s operations. Community testing sites had lines so long they snarled traffic. Schools that offered Northshore testing to symptomatic students, families and staff had sick people wandering hallways. So many people needed testing that Northshore testers couldn’t keep up. Angry parents took their frustrations out on school staff.

“This is the second week in a row and tensions are getting to the boiling point with the people we have to turn away,” wrote one high school administrator.

Then Northshore’s employees began to get sick. The company was not providing N95 masks and gowns or requiring staff to wear them, according to emails from the school district and a state investigation. Some testers wore less-effective cloth or surgical masks. Some didn’t wear gloves. So many employees became ill, the company had to suspend operations at two county sites, according to emails from the Palivoses.

(Screenshot highlighted and redacted by ProPublica)

In response to concerns from Kerwin and school officials, the company purchased better personal protective equipment.

“We have also bought face shields, N-95 masks, and gowns for our techs to use at their discretion. Effective: 1/17,” Greg Palivos wrote to the school district on Jan. 16.

Trosper said the Palivos brothers stopped PCR testing in January, when the state notified them of the inaccurate results. An email exchange provided by Trosper shows Angelo Palivos had pushed Northshore to fix its problems before it even got to that point.

“This casts more doubt on the efficacy of Northshore lab, in what is already a very fragile situation with plenty of doubt already cast,” Angelo Palivos wrote to Hussain on Dec. 16. “This is very concerning to everyone in Washoe County, and us as well.”

Hussain responded in reference to patients with contradictory results: “They need to be retested.”

Kerwin was fed up with her concerns going unheeded by local officials. On Jan. 14, after the state lab documented the 96% false negative rate, Kerwin emailed state health officials: “I am asking for Northshore’s license for PCR testing in Nevada be revoked immediately.”

(Screenshot highlighted and redacted by ProPublica)

Even then, state inspectors were slow to act. Worried the school district and community would be left in the lurch if Northshore halted operations, the deputy administrator of the state Division of Public and Behavioral Health, Julia Peek, asked for a backup plan. But there wasn’t one. Peek and Kerwin agreed Northshore should continue using rapid tests while ceasing PCR testing. The rapid tests were accurately “coming up positive,” Kerwin said.

A text message exchange between Northshore’s Angelo Palivos and Washoe County Assistant Manager David Solaro (Screenshot obtained by ProPublica)

When it became clear the state would investigate Kerwin’s complaint, Angelo Palivos texted Solaro, at the county, to try to put a stop to it: “If they can rescind the complaint we would appreciate it. It’s caused a major problem for us.” Solaro said he was “digging in with my mole now” to find out who had filed the complaint.

Trosper said Angelo Palivos challenged the complaint because the brothers had already told the testing sites to stop PCR testing.

Solaro told ProPublica he did not uncover who filed the complaint or take any action to have it rescinded. He said Angelo Palivos was frustrated. “In his mind, we needed their help, and here we are filing a complaint,” Solaro said.

At this point, Phinney’s agency, which was responsible for licensing and inspecting the lab, learned about the discordant results and discovered that Northshore was testing at locations across the state despite only being licensed for a single location. Waples immediately sent out an investigator, who came back with a list of deficiencies in Northshore’s operations, including not properly training all of its workers, not following the test manufacturers’ instructions and not properly performing quality control measures.

Waples was reluctant to shut down Northshore’s operations and instead said he wanted to bring them “into compliance.” In an interview, Phinney said that’s common practice for the bureau. “When we have a facility or provider that appears to be working with us, we do our darndest to work with them.”

By February, demand for testing had dropped. Although Northshore provided investigators with 600 pages of documentation to support its claim that it had fixed the problems, regulators continued to find deficiencies. In the end, Northshore decided to abandon its operations in Nevada and asked for the agency to close its license.

At this point the Palivos brothers also ended their relationship with Northshore. Trosper said Northshore still owes the brothers “hundreds of thousands of dollars” for employee salaries, subcontractors and vendors.

Ultimately, the state of Nevada rescinded the license and closed its investigation, but not before detailing its findings in a letter to the company. The director of the state Department of Health and Human Services, Richard Whitley, wanted the issues to be documented.

“It’s like staff who do harm and we let quit rather than be fired and then there is no record of the performance and they can reinvent themselves after a period of time and come back,” he wrote to Phinney. “We shouldn’t let this happen in health care.”

(Screenshot highlighted by ProPublica)

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Alex Mierjeski and Agnel Philip contributed research.

by Anjeanette Damon

The Plot to Keep Meatpacking Plants Open During COVID-19

2 years 6 months ago

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As hundreds of meatpacking workers fell sick from the coronavirus that was spreading through their plants and into their communities in April 2020, the CEO of Tyson Foods reached out to the head of another major meatpacker, Smithfield Foods, with a proposal.

Smithfield’s pork plant in Sioux Falls, South Dakota, had been hit particularly hard, and state and local officials were pressuring the company to shut it down.

“Anything we can do to help?” Tyson CEO Noel White asked in an email.

Smithfield’s CEO Ken Sullivan replied that he wished there was.

But White had an idea. Would Sullivan like to discuss the possibility of getting President Donald Trump to sign an executive order to keep meatpacking plants open?

So began a high-pressure lobbying campaign by the meat industry, according to a report released Thursday by congressional investigators, leading to one of the most consequential moments in the nation’s COVID-19 response: a presidential order that effectively thwarted efforts by local health officials to shut plants down and slow the spread of COVID-19.

In 2020, ProPublica obtained thousands of emails and other documents showing that the meatpacking industry had ignored years of pandemic warnings, tried to overrule public health officials and exposed vulnerable workers and their communities to COVID-19.

But the new report from the House Select Subcommittee on the Coronavirus Crisis, along with revelations in a wrongful death lawsuit, make clear that the callousness of meatpacking executives and the level of industry influence over the Trump administration were far greater than previously known.

For example, ProPublica had reported that the meat industry’s trade group shared a draft executive order with the Trump administration that bore striking similarities to the one the president signed days later.

Emails released by the subcommittee now show that the proposed order was drafted by Tyson’s legal department. The goal, according to Tyson’s vice president of government relations, was to shield the company from legal liability.

ProPublica also reported that the meat industry dismissed government warnings to prepare for a pandemic by stockpiling masks and developing plans to space out workers on processing lines.

But documents uncovered in a wrongful death lawsuit filed this week in Iowa show that while Tyson was slow to adopt safety measures to protect U.S. workers, it moved swiftly to do so at its plants in China, with extensive protocols, including a mask requirement and reduced production, in place by mid-February 2020 — more than a month before cases showed up in U.S. plants.

The effect that the meatpacking plant outbreaks had on the early spread of COVID-19 is staggering. ProPublica and other news outlets tracked cases and deaths involving meatpacking workers. But academic researchers have found that by July 2020, about 6% to 8% of all coronavirus cases in the U.S. were tied to packing plant outbreaks, and that by October 2020, community spread from the plants had generated 334,000 illnesses and 18,000 COVID-19-related deaths.

Within the cache of new documents are allegations that meatpacking companies tried to hide cases. As workers began calling in sick at a Tyson pork plant in Waterloo, Iowa, the company’s workplace health managers instructed plant nurses not to record the absences as “COVID-19,” but instead as “flu-like symptoms,” families of deceased workers said in their lawsuit. ProPublica reported extensively on how COVID cases at the plant spread through the community.

Similarly, when local health officials in California investigated an outbreak at a Foster Farms chicken plant, they discovered five additional deaths that had been marked not as fatalities, but instead as “resolved cases” or “resolutions.” Health officials told the subcommittee that during a conference call with the U.S. Department of Agriculture, someone from either Foster Farms or the USDA jokingly called them “toe tag resolutions,” referring to the toe tags that are often put on corpses at morgues.

The new emails demonstrate that the primary goal of some meatpacking leaders was not to protect their employees as they had professed, but to get them to show up to work so they could keep producing meat.

“As an industry we’re doing everything we can to provide as sanitized an environment as possible,” Sullivan wrote to other industry executives in early April. “But, we’re not asking for N-95 masks or anything like that. The ask is for the President, as well as all levels of government, to make more explicitly clear that food and agriculture workers are front line workers fighting the pandemic. The industry needs help, straight from the bully pulpit, to reinforce our patriotic duty to produce food for the country.”

Even after it was clear that dozens of workers were dying, an executive from Koch Foods said in late May 2020 that he thought the only safety measure the chicken industry should be using was to take temperatures. Ashley Peterson, a lobbyist for the National Chicken Council, said she agreed.

“Now to get rid of those pesky health departments!” she replied.

Despite the toll, meatpacking companies have faced little consequence. Several key executives, including Sullivan and White, have either retired or remain in key leadership roles. The companies faced only small workplace safety fines and have used Trump’s executive order to fight lawsuits from workers’ families. The profit margins of four of the largest meatpackers have grown more than 300% since the start of the pandemic, according to the Biden administration.

“The meatpacking industry’s efforts — aided extensively by Trump’s USDA and White House officials — led to policies, guidance, and an executive order that, individually and altogether, forced meatpacking workers to continue working despite health risks and allowed companies to avoid taking precautions to protect workers from the coronavirus,” the subcommittee concluded.

The meatpacking industry on Thursday pushed back on the subcommittee’s findings, saying it distorted the record and ignored the billions of dollars that meatpackers spent on safety measures.

“The Committee could have tried to learn what the industry did to stop the spread of COVID among meat and poultry workers,” Julie Anna Potts, president of the North American Meat Institute, said in a statement. “Instead, the Committee uses 20/20 hindsight and cherry picks data to support a narrative that is completely unrepresentative of the early days of an unprecedented national emergency.”

The National Chicken Council did not address lobbyist Peterson’s comments but said in a statement that processors “did everything they could to keep their workers safe.” Tyson and Smithfield emphasized that the unique challenges of the pandemic necessitated that they work closely with top government officials.

“This collaboration is crucial to ensuring the essential work of the U.S. food supply chain and our continued efforts to keep team members safe,” Tyson spokesperson Gary Mickelson said, noting that the Biden administration supported the company’s effort last year to have one of the first fully vaccinated workforces in the U.S. Mickelson did not address the lawsuit allegations.

Said Smithfield spokesperson Jim Monroe, “Did we make every effort to share with government officials our perspective on the pandemic and how it was impacting the food production system? Absolutely.”

Foster Farms did not respond to a request for comment.

While most of the previous reporting on the meatpacking industry’s response to COVID-19 relied on documents obtained under public records laws, the subcommittee’s report is based on 151,000 pages of documents that include an extensive trove of internal company emails.

From the beginning, those records show, meatpacking executives used their clout with the USDA to influence health decisions made at the highest levels of the Trump administration.

In March 2020, the industry pushed for the USDA to be involved in the White House Coronavirus Task Force and to help ensure that meatpacking workers were classified as “critical infrastructure” workers so they would be exempted from governors’ stay-at-home orders.

The industry was fortunate to have the USDA as its “primary regulator,” Potts wrote in an email to colleagues. “Officials at USDA are moving more quickly than other agencies and representing our industry’s interests in every important interagency decision,” she said.

Within weeks, Trump’s agriculture secretary, Sonny Perdue, set up a call between the CEOs of Tyson, Smithfield and other meatpackers and Vice President Mike Pence. That same day, during a White House press briefing, Pence heeded the industry’s request to address recent worker absences, telling meatpacking workers to “show up and do your job.”

A spokesperson for the University System of Georgia, where Perdue is now chancellor, declined to comment on his behalf, saying Perdue was now “focused on his new position serving the students of Georgia.”

After Smithfield’s Sioux Falls plant was shut down in April 2020, the emails show, Sullivan took a uniquely aggressive stance, one that even some of his colleagues in the meat industry bristled at.

When the Centers for Disease Control and Prevention issued draft recommendations to reduce COVID-19 at the plant, Sullivan marked up a copy, starring in the margins strategies that he deemed “problematic” for the aging plant. In response, the CDC added multiple qualifiers saying Smithfield should implement the recommendations only “if feasible.”

“It really muddies the guidance when we start putting these waffle words into it,” Dr. Henry Walke, then-director of CDC’s Division of Preparedness and Emerging Infections told the subcommittee, according to excerpts from an interview transcript. “I felt that was watering down our guidance.”

Sullivan and others in the industry meanwhile misled the public about an impending meat shortage that they said would result if plants closed temporarily, the subcommittee said. After the Smithfield plant suspended operations, Sullivan said the closures were “pushing our country perilously close to the edge in terms of our meat supply.” Days later, however, Smithfield urged the North American Meat Institute to issue a statement to reassure international customers that “there was plenty of meat” for export.

In emails, the trade group’s leaders said Sullivan was “directing the panic” and “intentionally scaring people,” creating a “mess” that they’d have to clean up.

Smithfield spokesperson Monroe said, “The concerns we expressed were very real and we are thankful that a food crisis was averted.”

As the coronavirus spiraled through meatpacking towns, Potts of the North American Meat Institute began to fret, noting in an email that “plants are being closed” and “health departments are showing up unannounced at plants.”

She wrote, “It seems to be cascading and our friends at USDA and the VP’s office are not able to stop it.”

But at almost the exact same moment, Tyson’s CEO was emailing the head of Smithfield about his idea for an executive order.

Within two days, Tyson’s vice president and associate general counsel circulated a draft order that would invoke the president’s powers under a Korean War-era law called the Defense Production Act. And meatpacking executives agreed they should send it to the White House.

Tyson’s vice president of government relations called it a “long shot,” but said, “I think we have a good momentum for a Hail Mary!”

When some in the industry expressed concern that such an ask could come across as “production at any cost,” Potts once again leaned on the industry’s connections with the USDA, sending the draft to top agency officials who passed on the request to the White House.

In the days leading up to the executive order, meatpacking industry representatives were in constant communication with the White House and USDA, the subcommittee records show. Sullivan and White held calls with Trump’s chief of staff, Mark Meadows, which were followed by a request from Meadows for White to meet directly with Trump. And the president held a call with meatpacking executives on the morning he issued the executive order.

The order had immediate effect, as health officials in Virginia backed off a recommendation to close a plant and officials in Utah cited the order as the reason they couldn’t shut a plant down.

Thousands of meatpacking workers would continue to crowd into processing plants, risking contracting the virus and bringing it home to their families.

A few months later, when the Trump administration issued plans to reopen schools, executives at the North American Meat Institute privately struck a different tone. They questioned whether bringing students back together without a vaccine — what they had done with meatpacking workers — was a good idea for kids in their area.

“This is just astounding,” wrote Bill Westman, a senior vice president for the trade group. “How can anyone guarantee that schools can ‘safely reopen’ under the circumstances as cases are surging across the USA? Why put students and extended families at risk?

“This administration is living in an alternative and dangerous reality.”

by Michael Grabell

Illinois Will Stop Helping Cities Collect Some School Ticket Debt From Students

2 years 6 months ago

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This story was co-published with the Chicago Tribune.

Illinois’ top financial official has banned local governments from using a state program to collect debt from students who have been ticketed for truancy, eliminating a burden for families struggling to pay steep fines.

A number of school districts around the state, meanwhile, have begun to scale back and reevaluate when to involve law enforcement in student discipline, among them a suburban Chicago high school where Black students have been disproportionately ticketed. That school, Bloom Trail High School in Steger, said Thursday that it will stop asking police to ticket students and move to other methods of discipline.

The moves come after an investigation by the Chicago Tribune and ProPublica, “The Price Kids Pay,” found that school officials and police were working together to ticket students for misbehavior at school, resulting in fines that could cost hundreds of dollars per ticket. When students or their families failed to pay, local governments sometimes turned to the state for help collecting the money.

Bloom Trail High School in Steger, Illinois (Armando L. Sanchez/Chicago Tribune)

The state told municipalities that beginning June 11 they no longer may submit truancy ticket debt for collections, according to an email from the Illinois comptroller’s office to municipalities that participate in the state’s Local Debt Recovery Program. Through that program, the state helps local governments collect on unpaid penalties for ordinance violations, unpaid water and sewer bills and other municipal debts by withholding money from people’s tax refunds, their lottery winnings or even their paychecks if they are state employees.

School and police officials have also responded to the investigation. Among those districts is Elgin-based U-46, the second largest in the state, which has stopped working with police to fine students for truancy and is reviewing whether police should be involved in fewer situations overall.

The U-46 superintendent, Tony Sanders, said he thinks the widespread school-related ticketing revealed by the Tribune and ProPublica should prompt “school leaders across Illinois, and across the nation, to reflect on our current systems related to student behavior” and find alternatives that keep students in school and don’t punish families financially.

The investigation found that punishing students with tickets violates the intent of a state law that bans schools from issuing fines as discipline. While not fining students directly, schools have been involving police so students can be ticketed and, in most cases, fined.

Another state law prohibits schools from notifying police about truant students so officers can ticket them. The investigation found dozens of school districts where students received tickets for truancy since the law went into effect in 2019.

A spokesperson for Illinois Comptroller Susana Mendoza said her office decided to prohibit collections on truancy ticket debt because state law is clear that schools aren’t allowed to seek fines for truant students. At this point the comptroller’s office has not stopped collecting other types of student ticket debt, the spokesperson said.

Illinois Comptroller Susana Mendoza (Antonio Perez/pool/Chicago Tribune)

Officials at Bloom Trail High School in Chicago’s south suburbs, featured in “The Price Kids Pay” for its racial disparities in ticketing, said they will work with students to resolve differences when they get in trouble instead of calling the police to request that tickets be written.

The school “is committed to no longer seeing students receive police citations,” according to an emailed response on behalf of the district. “In order to prevent this, we are developing alternative approaches that will reduce the number of circumstances in which we will involve the local police.”

Police had issued 178 tickets to Bloom Trail students from the start of the 2018-19 school year through March. Almost all of the tickets were for fighting, and almost all went to Black students.

The police chief in the village of Steger said that if the school asks for help with a more serious matter, officers with juvenile training will work with students and try alternatives such as requiring community service. Until now, students who have gotten tickets have been required to attend municipal hearings, and they typically got fined.

“They are going to try to do more in-house with the kids, which is good for us because we are there all the time,” Steger Police Chief Greg Smith said. He also said that after receiving the comptroller’s directive, Steger will not submit to the state collections program any unpaid debt from truancy tickets.

“We will stop doing that,” Smith said.

The investigation documented at least 11,800 tickets issued over the last three school years to students in public schools across the state. Most of the tickets identified were for violating local ordinances against fighting, tobacco or vape possession or use, having small amounts of cannabis or truancy.

The Tribune-ProPublica investigation documented 1,830 truancy tickets issued during the past three school years across about 50 school districts. Police continued to ticket students for truancy in more than 40 districts after the 2019 law went into effect.

For instance, at Dundee-Crown High School in Carpentersville, police issued 649 tickets for truancy from January 2019 through Dec. 7, 2021, the largest number of truancy tickets that reporters documented. At $75 each, the tickets totaled nearly $50,000, police records show.

Some police records of tickets issued this school year at Dundee-Crown High School in Carpentersville (Records provided by Carpentersville)

A spokesperson for Community Unit School District 300, which includes Dundee-Crown, did not respond to repeated requests for comment.

At nearby Wauconda High School, almost all of the nearly two dozen truancy tickets issued to students came after the state banned schools from referring truant students to police. One student got a ticket after leaving “to go to McDonald’s and go home,” according to the ticket. Another was ticketed for missing the first three class periods, and a group of boys were ticketed after they “left and tried to return to school for lunch,” the tickets stated. Each ticket came with a $50 fine that doubled if not paid within a couple of weeks. District officials did not respond to requests for comment.

Local governments can try to collect debt from unpaid student tickets through private collection agencies or the state collections program. Municipalities that use the state program send debt information to the comptroller’s office without indicating the reason for the fine or the age of the debtor. Since the state does not know if it is pursuing debt from a young person or whether it was related to truancy, the onus is on local governments to follow the comptroller’s directive.

The ban on truancy debt collections applies to tickets issued by police to students or to their parents or guardians.

“The General Assembly has made clear its intention that schools not fine students for misbehavior, though they did leave the door open for schools to let police fine their parents for some activity,” comptroller’s office spokesperson Abdon Pallasch wrote in an emailed statement. “But the legislators put serious restrictions on schools’ ability to let law enforcement fine students’ parents for truancy. We agree with that policy.”

A truancy ticket issued to a Wauconda High School student who left school to go to McDonald’s (Obtained from the Wauconda Police Department by ProPublica)

Samantha Corzine had about $800 withheld from her state tax refund in 2020 because of debt owed by her daughters for tickets — including for truancy — that they received while students at Bradley-Bourbonnais Community High School in Bradley. She said the comptroller’s decision to stop collecting on some student debts is a step in the right direction.

“I’m glad they actually did that,” she said. “The state should not be able to take any money from parents.”

A clerk at the village said debt from students’ truancy tickets would not be pursued through the state program. The Bradley-Bourbonnais high school principal has said that it’s school administrators’ responsibility to alert police if students violate local ordinances.

Just hours after the investigation was published last month, Illinois’ top education official, Superintendent Carmen Ayala, told school leaders to “immediately stop” working with police to ticket students, saying that “the only consequences of the tickets are to impose a financial burden on already struggling families and to make students feel even less cared for, less welcome, and less included at school.” Gov. J.B. Pritzker, meanwhile, said conversations were already underway with legislators “to make sure that this doesn’t happen anywhere in the state of Illinois.”

One district superintendent contacted by reporters, however, said that he would continue to support involving police to either arrest or ticket students when their behavior is violent or extremely disruptive. Without police intervention, “schools will become the most violent, drug-filled places students attend,” said Jacksonville School District 117 Superintendent Steve Ptacek. “We owe it to our communities to keep schools safe, free from drugs, and focused on our academic atmosphere.” Officers wrote about 20 tickets at Jacksonville High School, west of Springfield, in the past three school years, according to Jacksonville Police Department records. Most were for student fights, though some were for truancy. None was for drugs.

But several school districts have begun to make changes in response to the investigation and Ayala’s plea.

In Harvard Community Unit School District 50, northwest of Chicago in McHenry County, Superintendent Corey Tafoya wrote in an email that an internal review of practices was underway. The deputy police chief in Harvard also said officers would immediately stop ticketing students for truancy.

Police had ticketed students at the high school and junior high at least 231 times over the past three school years, according to police records. At least 67 of the tickets were for truancy, and most of those had been issued since the state banned schools from referring truant students to police for fines.

“In light of the article being written, we decided we are not going to issue truancy tickets anymore. The school can handle it,” said Harvard Deputy Chief Tyson Bauman. He said school resource officers — police stationed at the schools — will still write citations for other local ordinance violations, including possession of tobacco or vaping materials and fighting.

Superintendent Jesse Brandt of Hall High School District 502, a one-school district of about 400 students in rural Bureau County, said school employees will no longer refer truant students to police. At least 10 truancy tickets were written to students there after the state truancy law was enacted.

Jennifer Smith Richards has been a reporter at the Chicago Tribune since 2015. Jennifer’s data-driven investigative work often focuses on schools and disability. She is a member of the ProPublica Distinguished Fellows program.

by Jodi S. Cohen, ProPublica, and Jennifer Smith Richards, Chicago Tribune

Katrina Survivors Were Told They Could Use Grant Money to Rebuild. Now They’re Being Sued for It.

2 years 6 months ago

This article was produced for ProPublica’s Local Reporting Network in partnership with The Advocate | The Times-Picayune, and it was also co-published with WWL-TV. Sign up for Dispatches to get stories like this one as soon as they are published.

As natural disasters become more expensive, ProPublica and The Advocate | The Times-Picayune are investigating how relief programs unintentionally punish poor people. Do you have a story to tell? Fill out this form.

Celeste Matthews spent last summer’s 16th anniversary of Hurricane Katrina in a panic at her cousin’s house in Uptown New Orleans as another monster storm, Hurricane Ida, roared through the city. With every gust, she was terrified the windows would shatter.

The next day, she returned to her home in the Gert Town neighborhood to find part of the roof torn off. With the electricity out, she had to sleep with the windows open. Mosquitoes swarmed around her bed.

“It was horrible,” said Matthews, 67.

After three days without power, Matthews had her daughter drive her to Houston. A week later she returned home, closed the curtains and sank into a depression, spending the next several days in bed.

One morning, she awoke to a knock on the door. An Orleans Parish sheriff’s deputy was holding a stack of court papers. Matthews, her hands shaking, read the first page:

“State of Louisiana, Division of Administration, Office of Community Development - Disaster Recovery Unit Versus Matthews, Celeste.”

Below that: “YOU HAVE BEEN SUED.”

Watch the Report

WWL-TV reports on Louisiana’s elevation grant lawsuits.

When the levees broke during Katrina in 2005, Matthews’ home was engulfed in 5 feet of water. She lost everything. Like most poor New Orleanians, she struggled to cobble together enough money to rebuild.

In 2008, the state of Louisiana offered Matthews $30,000 through the federally funded Road Home program to elevate her house to reduce the risk of future flooding. But her home was still unlivable, and she desperately needed the cash for repairs. To her relief, she said, a Road Home representative told her she could use the elevation grant to instead pay for repairs. So she did.

Now, more than a decade later, the state wanted the money back.

Louisiana has sued about 3,500 people — about one in every nine people who received an elevation grant — for failing to use the grants to raise their homes after hurricanes Katrina and Rita struck in 2005.

The real problem, however, wasn’t that people ignored the rules, according to an investigation by The Advocate | The Times-Picayune, WWL-TV and ProPublica. It’s that the state Office of Community Development and a contractor it hired in 2006, ICF Emergency Management Services, mismanaged the program. For more than a decade since, the U.S. Department of Housing and Urban Development has insisted that the state recoup the money from people who are noncompliant.

Court documents at Matthews’ home, including the notice that she was being sued by the state (Sophia Germer/The Advocate | The Times-Picayune)

Louisiana gave money to 32,000 homeowners starting in 2008. The state was in such a rush to distribute grants that no one verified they were eligible, according to the testimony of a top state official in one of the lawsuits. Some homeowners, like Matthews, said Road Home representatives told them they could use the money for repairs, even though that would violate their grant agreements.

Twice between 2013 and 2015, the state tried to fix the problem, changing the rules to allow spending on repairs and other expenses. But by then, so much time had passed that many homeowners couldn’t prove how they had used the money.

Some homeowners said they originally planned to elevate, but found that $30,000, the typical elevation grant, was less than a third of what it typically costs to lift a house and put it onto raised footings.

In 2017, under pressure from the federal government to recoup the funds, Louisiana started filing lawsuits against residents.

For many low-income homeowners, the suits could threaten financial ruin. Several pre-emptively declared bankruptcy, according to their attorneys. Others failed to defend themselves in court, resulting in the state placing liens on their properties. Some fear their homes will be taken away.

“We worked our asses off to get where we are now,” said Michelle Williams, 54, who is being sued along with her husband, Patrick Williams. “And for this to happen? You’re not helping the people of Louisiana. You’re knocking us farther and farther back.”

If they lose the lawsuit, she said, “I will crumble.”

The failures of Louisiana’s elevation grant program are part of a tapestry of dysfunction in how America prepares for disasters and helps victims in their wake. ProPublica and The Advocate | The Times-Picayune are exploring how a range of policies unintentionally punish working-class Americans and people of color, contributing to the disproportionate harm they suffer in catastrophes.

Louisiana’s Broken Disaster Aid

American disaster planning and relief programs are flawed in many ways, some of which have been brought into especially clear focus in Louisiana:

  • HUD and the state of Louisiana paid $62 million to settle a lawsuit claiming that the Road Home, the signature post-Katrina rebuilding program, disproportionately hurt poor communities and people of color by basing grants in part on pre-storm values rather than the cost of rebuilding, leaving some homeowners unable to complete renovations. That policy’s effects are still reverberating in the form of neighborhood blight and depressed home values.
  • As the National Flood Insurance Program reconfigures itself in an effort to better account for risk, premiums will rise drastically in many working-class communities in coastal Louisiana and elsewhere. The changes could make those homes difficult if not impossible to sell and could lead some people to drop their insurance, leaving them vulnerable to future storms.
  • Even HUD has acknowledged that federal aid is distributed unpredictably and unevenly after devastating storms. The blue-collar town of Lake Charles has had a hard time getting help after Hurricane Laura in 2020, though wealthier, more influential areas struck by other major storms have gotten more aid more quickly.
  • The federal government won’t build levees to protect an area from flooding until a critical mass of property is threatened. St. John the Baptist Parish, outside New Orleans, became a haven for working-class Black people due to plentiful and affordable housing. Though a hurricane levee has been planned for more than 30 years, it’s only now being built — after two punishing floods in the last decade.

The problem is particularly urgent in Louisiana. Not only is it one of the poorest states in the union, it’s the most flood-prone, and it has been struck by some of the costliest natural disasters ever to hit the U.S. Thanks to global warming, the severity of such events is increasing, and their monetary toll is skyrocketing: Adjusted for inflation, the cost of U.S. natural disasters has increased by 600% since 1980.

The lawsuits over elevation grants, which have left thousands of Louisiana homeowners facing the prospect of cripping liens or payment plans, are part of the broader pattern of poor disaster planning.

The majority of elevation grants were in lower-income neighborhoods and communities of color, as were the lawsuits that followed, according to an analysis by ProPublica and The Advocate | The Times-Picayune. For the roughly 3,000 lawsuits that could be mapped, more than half of properties were located in census tracts with median incomes below the surrounding areas.

Roughly two-thirds of the properties were in neighborhoods that were disproportionately Black compared to their parishes.

The state is seeking $103 million in the elevation lawsuits. So far it has recovered nearly 5% of that from 425 families through the suits, said Pat Forbes, executive director of the Office of Community Development.

The agency tried to avoid taking such an aggressive approach, he said. But the state is required by the federal government to claw back money from people who didn’t follow the grant requirements.

“We’ve gone to great lengths to try to not have to take money back from people,” Forbes said, adding that the state will not foreclose on anyone’s home to collect.

Matthews points out storm windows she installed after Hurricane Katrina. “I never completely recovered, emotionally,” she said. (Sophia Germer/The Advocate | The Times-Picayune)

A HUD spokesperson said the state could have used its own funds to repay any misspent grants rather than going after homeowners.

Suing them years later runs counter to the goal of helping the devastated communities of Louisiana rebuild, said U.S. Rep. Troy Carter, D-La.

Carter said he and other officials have talked to the Biden administration and Gov. John Bel Edwards about wiping the slate clean.

“These are not people that defrauded the government,” Carter said. “These are people that used the money to repair their homes. And they should not be put in a position where now those homes are being threatened.”

“I Wish I Never Signed That Paper”

Donnie Small’s family has deep ties to Jefferson Parish, which borders New Orleans. His father was the first Black sheriff’s deputy in the parish. Small drove a public bus there for 37 years.

After Katrina, Small volunteered to shuttle first responders between a small town upriver and New Orleans, 29 miles every morning and night. He did so when his own family was suffering, like so many others.

The one-story house in Kenner that he shared with his wife and two daughters sat in 2 feet of water for days after the storm. Everything had to be replaced: furniture, flooring, appliances, wiring.

Small, 69, received about $60,000 from his insurance company, but that covered only immediate needs, such as remediating mold and removing damaged trees. Unable to afford other accommodations, his family slept on air mattresses in the gutted structure, wearing masks to keep out the dust.

Small didn’t know how he was going to come up with more money, but he refused to give up. “I’ve never had any intentions of moving anywhere else,” he said. “This is my home. I’m going to be here.”

The Road Home program, created in 2006 to help people rebuild, often gave people less money than they needed to complete repairs because of how awards were calculated.

So in 2008, when the state sent 40,000 letters to homeowners telling them they were eligible for elevation grants, plenty of them were interested.

A letter to a homeowner announces that grants are available to help homeowners elevate their homes to reduce future flooding damage. (Obtained by ProPublica, The Advocate | The Times-Picayune and WWL-TV)

“The State of Louisiana is pleased to announce that funds are now available to assist you with the cost of elevating your home,” the letters read. To get the money, homeowners had to agree to raise their homes within three years of receiving grants.

Yet when Small met with a Road Home representative, he said, he was told he could put his $30,000 grant toward repairs. The money was a godsend, Small said.

Donnie Small looks for photos from after Katrina on his computer at his home in Kenner, Louisiana. Everything in the home had to be replaced in the storm’s aftermath. (Sophia Germer/The Advocate | The Times-Picayune)

Once the state Office of Community Development received an application, it sent the money to homeowners, Jeff Haley, who helped administer the elevation grant program as an official with ICF from 2006 to 2009, said in testimony during one of the elevation lawsuits.

No one double-checked before the money went out that homeowners were eligible or that their homes needed to be elevated, said Haley, who is now with the state Division of Administration. The state simply “didn’t have time,” he said. There was pressure to “get the funds out into the community as fast as possible.”

The state told the news organizations that it selected people whose homes were in flood-prone areas and who had already received another Road Home grant. It was up to homeowners to determine how much they needed to elevate their homes, officials said, and if they learned they were already at the correct height, they should have returned the money.

But when homeowners informed Road Home representatives, sometimes in writing, that they didn’t plan to elevate their homes, they were verbally told that they could use the money for repairs, according to eight families and eight attorneys representing more than 200 homeowners.

State officials told the news organizations no homeowners have identified who told them they could use the money for repairs. They suggested this didn’t happen until years later, after the state changed the rules to allow people who hadn’t raised their homes to use elevation grants for repairs.

Small said he never would’ve accepted the money if he hadn’t been told he could use it to fix his home.

“Back then it seemed they were really trying to help people,” said Small, who is the subject of a pending lawsuit. “We thought it was something that was a plus for us, that we can get our home back to the position that it was before the storm. Now, I wish I never signed that paper.”

The agreement that Small signed to receive his Road Home grant required that his home be raised within three years. He said a program representative told him he could instead put the grant toward repairs. The state contends that homeowners are bound by their agreements. (Obtained by ProPublica, The Advocate | The Times-Picayune and WWL-TV) Road Home Representative “Talked Me Into this Mess”

At least five appeals court rulings support homeowners’ contention that they were told they could use the grants for repairs.

Wallace and Kristy Styron received a $30,000 elevation grant even though their home was already above the required height. Wallace Styron testified that he repeatedly told a Road Home representative that he didn’t need to raise it, and even said he had submitted paperwork to prove it. But the person insisted he accept the grant, he said, telling him he could use it for repairs.

The representative “made me apply for this,” Styron testified in court after the state sued him in 2019 for failing to elevate his two-story home in southwestern Louisiana’s Cameron Parish. “She filled it out for me,” he said. “She talked me into this mess."

None of that mattered, the state argued. The Styrons had signed a contract in which he agreed to raise his home, and he was bound by it.

A document outlining the benefits Styron qualified for, dated Dec. 2, 2006, says he was not eligible for an elevation grant. Forms for two other homeowners reviewed by the news organizations said the same. Another three homeowners indicated on forms they didn’t want the elevation money. Yet all those homeowners subsequently received grants, and all have been sued.

The state’s Third Circuit Court of Appeal ruled for Styron, finding that “the Road Home representatives maintained” that he “did not have to use the funds for elevation purposes.”

The court noted that the state made no effort to dispute the Styrons’ claim by, for instance, putting a caseworker on the stand.

The state’s caseworkers were employees or subcontractors of ICF, ​​a subsidiary of a Virginia-based disaster management firm that won a contract for hundreds of millions of dollars in 2006 to manage the massive Road Home program, including processing grant applications and distributing funds to Louisiana homeowners.

State officials were highly critical of ICF’s performance throughout its three-year tenure. At first, they were unhappy with the slow pace at which the company awarded grants. Then, ICF said on its website in 2007, it sped up its work when “the need to move even faster than we believed possible quickly became clear.”

Cameron Parish attorney Jennifer Jones said ICF disseminated false information to families. She has won four lawsuits in which her clients testified that ICF caseworkers told them they could use the grants to fix their homes.

“All they wanted to do was get the money out, get the money out,” Jones said.

ICF spokesperson Lauren Dyke said the firm “worked within the policies put in place by the state.” She referred further questions to the state.

A worker for a shoring company shows temporary support beams at a New Orleans home being elevated in 2006. (Eliot Kamenitz/The Advocate | The Times-Picayune)

Even if families wanted to elevate, $30,000 was only a fraction of what most of them needed. The state estimated it would typically cost about $110,000 to raise a 1,500-square-foot home 3 feet — a complex process in which the home is lifted by a temporary network of support beams and jacks while a higher foundation is constructed below.

The state later offered more money, but there wasn’t enough to go around to everyone who needed more to elevate their homes.

By the time Cherylyn Davis got her elevation grant three years after Katrina, she said, she had been scammed out of $20,000 by three different contractors — a common complaint in the years after the storm.

Davis said she called a shoring company and learned it would cost more than $100,000 to raise her New Orleans East home.

“So I had no other choice but to finish my home” with the elevation grant, Davis wrote when the state demanded repayment in 2014. “I’m sorry that I did not inform you before this.” Considering she was missing some of her receipts, she asked, where “do we go from here”? She noted that she only earned $720 a month.

Haley, the former ICF official, testified in the Styrons’ case that the state and ICF were hearing from a lot of people that they didn’t have enough money to elevate and so they used the funds to repair their homes.

The state has asked a judge to enter a $28,263.57 default judgment against Davis because she hasn’t responded to the suit. She has neither the money nor the strength to fight the state, she said.

“I’ve been through a lot with this house,” she said. “I can’t worry about this, because I have a bad heart. I was sick for a long time worrying about things. I learned how to pray more and stress less.”

Cherylyn Davis, outside her home, holds a photo taken after Katrina and a 2014 letter she wrote to the state explaining that her grant would not cover the cost of elevating her home, so she used it for repairs. (Sophia Germer/The Advocate | The Times-Picayune) “These People Are Not Suspected of Fraud”

Thanks in part to the confusion around the program, 53% of grantees who had hit the three-year deadline to spend the money had not elevated their homes as of 2012, according to a 2013 report by HUD’s Office of Inspector General.

Most of the people who hadn’t followed the rules were “lower income or senior citizens who did not have sufficient resources to either rehabilitate their homes or to elevate them,” HUD said in a news release.

“These people are not suspected of fraud,” Forbes, the Office of Community Development executive director, said. “It’s just that they can’t demonstrate that the funds were spent for the purpose for which they were granted.”

While HUD seemed to sympathize with those who hadn’t fulfilled their grants, the federal agency for years has pressured the state to recoup money from noncompliant homeowners. With HUD’s approval, the state changed its rules several times to give people more ways to justify their spending.

The first time, in 2013, the state decided to allow grant recipients to count the cost of repairs, living expenses while rebuilding and other costs — but only if they could produce receipts. The original agreement hadn’t required people to save receipts, so few did, attorneys and homeowners said.

Photos show Davis’ home after Katrina. She told the state she had no choice but to make repairs, but she didn’t keep all of her receipts. (Sophia Germer/The Advocate | The Times-Picayune)

In 2015, the state tried a new approach: an inspection program to verify grantees had used the money for repairs.

That effort fell short too. So many hurricanes had struck Louisiana that inspectors couldn't determine whether the repairs they saw were from Katrina or subsequent storms, Haley testified. The inspections were halted after two years.

According to the state, more than 5,000 families benefited from its remedies. Others, however, were left in an impossible position, said attorney Keren Gesund, who represents several families being sued by the state.

“Nobody has receipts, and they’re not sending out inspectors anymore. And they don’t trust your word. So then that means that a person has no real avenue of relief at that point,” Gesund said. “After a certain amount of time, there’s no way to prove anything.”

In 2015, HUD issued its sternest warning yet, telling Louisiana that if it didn’t commit to “vigorous enforcement against fraud, waste and abuse,” the federal agency would look at all its options. HUD guidelines say failure to repay misspent funds can result in a reduction in current or future grants, including disaster assistance.

Forbes said penalties could range from the state being forced to repay unaccounted-for Road Home grants “all the way down to not having to pay back anything.”

In 2016, Louisiana sued ICF, claiming it had committed “numerous breaches” of its contract through errors in its “handling of files, determinations of eligibility, the calculation of the grant award, and the distribution of funds.”

ICF denies it breached the contract, according to court records.

The state’s lawsuit, now six years old, is still pending.

Too Tired to Fight

Matthews, the homeowner who was served with her lawsuit shortly after Ida, moved to Baton Rouge after Katrina. She would drop her daughter off at school and walk to a nearby park, where she would sit on a bench and cry.

About 80% of New Orleans flooded after the federal levees failed. About 1,800 people died; hundreds of thousands were displaced. Matthews counted family and friends among both groups.

“I never completely recovered, emotionally,” she said.

It took eight years for Matthews to return to her beloved New Orleans home. At first she planned to use her grant to elevate it, but she decided not to when others said their houses had been damaged in the process.

Then she began to receive letters warning she might have to return the money.

Matthews at her home with court documents, received in the days after her home was damaged again by Ida. (Sophia Germer/The Advocate | The Times-Picayune)

Matthews didn’t know what to do. She hadn’t saved receipts. Several years later, she tried to get an inspector to assess the value of her repairs, but by then the state had discontinued inspections.

Between Ida and the lawsuit, she’s been dragged into the abyss of a debilitating depression that has been with her since Katrina. At this point, she said, she’s too worn down to fight the state.

Roughly half of the lawsuits target New Orleanians. For those suits that could be mapped, over two-thirds were filed over properties in high-poverty neighborhoods and nearly 80% in tracts with a higher proportion of Black residents than the city as a whole, according to an analysis by ProPublica, The Advocate | The Times-Picayune and WWL-TV .

The news organizations reviewed a sample of 200 of the more than 1,600 elevation grant lawsuits filed over properties in the city. Just 30% of the defendants in the reviewed cases have legal representation.

Judges can issue default judgments against homeowners who don’t respond. About 150 have been issued or are pending, according to the state’s list of lawsuits. The state can place a lien on each home, which will have to be paid off when the house is sold or passed on — greatly reducing what these homeowners can bequeath to heirs.

“The state is relying on people to not fight back,” said attorney Shermin Khan, who represents more than 50 homeowners. “They’re having their wealth stolen from them. Their only equity.”

Meanwhile, the state has paid Baton Rouge law firm Shows, Cali & Walsh $11.1 million since 2009 to litigate claims of fraud and waste for all Road Home programs, including the elevation lawsuits.

There are essentially two ways homeowners can win these cases, attorneys said: Provide receipts, or prove that the homeowner wasn’t eligible and the state knew it when the contract was signed.

Mark and Donna Leger were able to pull that off. When they filled out a Road Home application, they provided a certificate showing their house in Cameron Parish was above the required height. On a printout of their Road Home application, next to the question “Is home required to be elevated?” the “No” box is checked.

And yet the state still awarded the Legers a $30,000 elevation grant. According to a court ruling, Mark Leger testified that a Road Home representative told him he could use the money to elevate his air-conditioning units or the utility meter, or to repair his house.

Eleven years later, the state sued them. The Third Circuit Court of Appeal ruled for the Legers.

Valerie Labat of Marrero, across the river from New Orleans, produced receipts and an affidavit showing she spent more than $31,000 between her contractor and various purchases at home improvement stores. Lawyers for the state want her to show how she spent a $12,300 insurance settlement so they know she’s not double-counting any expenses.

Labat, a 28-year Army veteran who struggles with PTSD, broke down several times as she discussed the pending lawsuit.

“The whole thing was supposed to be Road Home!” she said. “You are providing me a road to get home. A path to get in my house. But now that I’m home, you’re gonna pull the road from under me? What the hell you name it Road Home for?”

About the Data

To analyze the distribution of elevation lawsuits, ProPublica, The Advocate | The Times-Picayune and WWL-TV combined a list of lawsuit defendants sued by Louisiana’s Office of Community Development with a list of elevation grant recipients that included property addresses, excluding cases where the defendant could not be clearly matched to a grant recipient, or where the address in the grant data could not be mapped accurately. Nearly 98% of the 32,200 grants were geocoded successfully. The news organizations then matched roughly 3,000 of about 3,500 lawsuits related to elevation grants to census tracts and analyzed their characteristics. The news organizations evaluated tracts based on their demographics around the time period that the elevation grants were distributed, using 2010 census data to determine the racial composition of tracts and 2011 5-year American Community Survey data to measure poverty and income levels. The organizations defined “high-poverty neighborhoods” as census tracts with poverty rates of 20% or higher.

Did You Get the Help You Needed After a Hurricane or Tropical Storm? We’re Investigating Disaster Relief.

Sophie Chou and Joel Jacobs, ProPublica, and Jeff Adelson, The Advocate | The Times-Picayune, contributed data analysis.

by Richard A. Webster, The Advocate | The Times-Picayune, and David Hammer, WWL-TV

The Southwest’s Drought and Fires Are a Window to Our Climate Change Future

2 years 6 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

The concentration of carbon dioxide in Earth’s atmosphere has reached its highest level in recorded human history. Again.

In April, the level of CO2 was 27% higher than it was 50 years ago, according to the latest data from the National Oceanic and Atmospheric Administration and the Scripps Institution of Oceanography. (Methane, a gas with about 85 times the near-term warming effect of CO2, has risen more than 16% since 1984, the first full year that NOAA collected data.)

Each spring, going back decades, we have surpassed the previous year’s CO2 record, as humans continue burning hydrocarbons at breathtaking rates, releasing greenhouse gasses. That impacts temperatures, precipitation, the intensity of storms and other weather patterns.

Across the American Southwest, this has amplified record droughts and fires.

Climate change is exposing where the bodies are buried, literally. Boaters and paddle boarders discovered two corpses in early May in Lake Mead, as water levels fell to their lowest point since the reservoir was filled in the 1930s. Lake Powell has also dropped to its lowest point since being filled. The ongoing drought appears to be the worst in 1,200 years, according to research recently published in the journal Nature Climate Change. Around the region, there have been hotter temperatures, smaller snowpack and an earlier start to the fire season. Wildfires have already torched more than 300,000 acres near Santa Fe in northern New Mexico this year.

This new reality threatens the Southwest, the fastest-growing region in the U.S., and the 40 million people who rely on the Colorado River, while offering a glimpse at what climate change will bring there and elsewhere.

“This happens to be one of those years when we can look out the window and look at the future as the smoke pall floats overhead,” said David Gutzler, a professor emeritus who researches climatology and meteorology at the University of New Mexico’s Earth and Planetary Sciences department.

To better understand how climate change is and will continue to affect the Southwest, ProPublica spoke to three experts: Gutzler; Mikhail Chester, a professor in Arizona State University’s engineering school and the director of the Metis Center for Infrastructure and Sustainable Engineering; and Gregg Garfin, a climatologist at the University of Arizona and co-lead author of the Southwest chapter in the Fourth National Climate Assessment.

The conversations have been edited for length and clarity.

Wildfires are burning near Santa Fe, while the Boulder, Colorado, area is still reeling from a fire that burned a developed area in the dead of winter. What are the connections between a changing climate and wildfires?

Gutzler: We make the extremes worse. That’s a bit different than saying a wildfire is caused by climate change. As temperatures rise, hot temperature-related extreme events are likely to become more frequent and more severe, and that’s exactly what we’re seeing across the West right now.

Garfin: There are also parts of the region where there’s a link between fire severity and climate change. The way that plays out is that climate change affects the hydrology, so it leads to a shorter snow-cover season, less snow-covered area, soils that are desiccated, and then temperature also puts stress on trees that dries out the fuels.

Research also suggests the Colorado River’s flow is down about 20% this century. How might the region’s river systems be shaped by climate change?

Gutzler: We should plan for diminished flows, particularly out of snow-fed rivers. ... What snow there is melts earlier and melts faster. That’s exactly what we saw this year. In the Rio Grande Basin, snowpack was pretty close to what most people would consider average right around the time of peak snow, a month and a half ago. But it has just melted really fast in this hot weather, so the effect of that on streamflow is we get less flow in the river for the same amount of snow that fell last winter.

Garfin: We’re seeing less snow-covered area, less water content in the snowpack, early runoff in the late winter and early spring at elevations lower than around 7,000 feet, an increased fraction in the precipitation that we get coming as rain rather than snow and reduced soil moisture. All of these things combine to reduce the efficiency of runoff. ...

We’re already seeing an increasing water supply coming from treated effluent that’s primarily being used to irrigate parks or golf courses. Probably we’ll be seeing more of our potable water supply coming from treated effluent. Another thing — we saw this in Arizona in the State of the State address from Gov. (Doug) Ducey — he said let’s put billions of dollars into developing desalinated water supplies, and there have been plenty of feasibility studies. It’s expensive and it takes a lot of energy, but we could end up with some technological breakthroughs. ... Water managers throughout the Colorado River Basin have been creative in finding ways to keep more water in the reservoirs. Obviously that’s not enough, but I think there will be water marketing and trading maneuvers — because some tribes have large amounts of water — to create the legal mechanisms for the cities to buy more water from tribes.

What about the impact of climate change on living things in the region? What do we know about changes to ecosystems and biodiversity?

Gutzler: The change in the climate is happening at the same time as humans affect ecosystems in other ways that aren’t connected to climate change, just by habitat destruction and all the other things that people do to change the environment. I view climate change as an added stress to wild ecosystems that are already stressed by large numbers of people moving into the Southwest.

One way for mobile species to adapt to climate change is to move north. ... If people have built fences or, at the U.S.-Mexico border, a wall, then the combined effect of a changing climate and barriers to migration can jeopardize the health of species and ecosystems.

In addition to biodiversity, how does a changing climate interact with the Southwest’s rapid population growth?

Garfin: We’ve got a lot of people who have built their homes or expanded towns into the so-called wildland-urban interface, and that puts infrastructure at risk (to wildfires). Also, if we have severe fire, eventually there’s going to be rain — it doesn’t even have to be record rainfall — and all that stuff that has burned is going to find its way into watercourses. We end up with debris flows that can take out infrastructure, that can take out roads or that can end up in reservoirs and increasing the sediment load and decreasing water quality.

Chester: We are figuring out already how to deal with extremes in terms of heat, in terms of monsoons, in terms of drought that are beyond the forecasts of most other places in the United States. The worst of the worst in a particular place in Illinois, let’s say, is probably not close to what you get in Phoenix, so we’re already living with these extremes. ... For the most part, things aren’t breaking right now. ...

Now, you’re running into the reality that the conditions that we’re designing for are not necessarily what we will live with in the future. So, if we designed for 120 degrees Fahrenheit maximum temperatures, is that what’s going to be the max 20 years from now, 30 years from now, or is it going to be greater?

If the Phoenix metro area is doing pretty well overall, are there any examples of infrastructure that’s already nearing the breaking point?

Chester: You get a lot more blackouts and brownouts in the power system when you have these heat waves. That’s the case anywhere in the U.S., but you certainly have that here. You get inundation of the stormwater system. ... Everything breaks more frequently when you have hotter temperatures. That’s the simpler way of looking at it.

The Southwest is a very ethnically diverse region. How does that affect the calculus as society pursues solutions?

Garfin: If we don’t deal with equity in climate solutions, then we’re going to shoot ourselves in the foot. Through the impacts to vulnerable communities and less economically well-off communities, it’ll end up being more costly anyway. ... Previous failures were that housing developments in less affluent parts of our cities have typically lacked the kinds of landscaping that would reduce the heat-island effect and that would absorb more stormwater, so we know that now and we know that we haven’t done well by those communities.

The Intergovernmental Panel on Climate Change published reports this year that came with a warning — we’re likely to miss the Paris Agreement’s goal of limiting warming to 2.7 degrees Fahrenheit. What does that mean for the Southwest?

Gutzler: We’re living it this year. ... You can take an extreme drought of the sort that we’re experiencing now and the way that it has impacted the environment, the water supply across the board, and say that is the direction the Southwest is headed unless we do something about climate change.

Garfin: We already have amplified heat in our cities from the urban heat-island effect, from just changing from natural vegetation to the built environment. Also, as you increase the background temperature, the effects that we see in our large cities — Phoenix, Tucson, Las Vegas — more people are exposed to the public health effects of extreme heat. ... In places like Tucson or Las Cruces, our future might look like Phoenix, and Phoenix’s future might look like Middle Eastern cities. ... Then, what’s projected is continued decreases in snowpack, perhaps more extreme high flows, but more days with very low flows. That leads to a much less reliable surface water supply.

Are there examples of steps being taken in the region to address climate change through mitigation or adaptation?

Garfin: If we look to some of the more progressive climate change plans like Flagstaff’s Climate Action and Adaptation Plan, they’re doing a couple things in terms of wildfire. One is insisting through their public policy that there’s more defensible space around houses and other structures that are in the wildland-urban interface. Then, they also had a bond in 2012 where city residents overwhelmingly voted to tax themselves to pay for forest treatments on public, federal lands in their watershed to reduce the risk of really severe fires.

Chester: There’s got to be a readjustment of how we utilize ecological infrastructure. ... You’re going to have a lot of small-scale failures, and at times it might make sense to allow those failures to happen.

I’m not suggesting we allow loss of life. I’m not suggesting we allow major economic damages. So, a great example here of safe-to-fail infrastructure is Indian Bend Wash in Scottsdale. We’ve basically said, when the monsoon rains come, we are going to allow a giant river to move through the wash, and it might take out the golf courses, the bike paths, the Frisbee golf, the dog park. ... The cost of replacing it is pretty low, but the benefit we get is enormous. The benefit is social in terms of all this space. The benefit is ecological; there’s a lot of green infrastructure in there. There’s also the benefit of stormwater attenuation.

With all this in mind, what does the future hold for the Southwest?

Chester: The problem — from my perspective as an engineer who studies infrastructure — is the rigidity of everything we’ve built out. ... For the past century we’ve gotten away with these design assumptions that things can be rigid, can be based on a future that is largely predictable. Here we are in the future saying that doesn’t seem to be the case. We need a lot of flexibility.

Gutzler: Ultimately, carbon energy will be replaced on purely economic grounds by renewables, so there’s hope there. But the Southwest is inevitably going to become a hotter and drier place than it is now with huge stresses on human societies and wild ecosystems. That’s what’s in store for us, so we better adapt to it as intelligently as we can.

by Mark Olalde

Lawmakers Demand Action on Child Welfare Failures

2 years 6 months ago

This article was produced for ProPublica’s Local Reporting Network in partnership with The Southern Illinoisan. Sign up for Dispatches to get stories like this one as soon as they are published.

Two Southern Illinois lawmakers are calling on Gov. J.B. Pritzker to improve access to mental health and substance abuse treatment and other services to ensure that families repeatedly investigated by the state’s child welfare agency can access the help they need.

“It’s time for the governor to be a leader and figure out how to solve this problem in Southern Illinois,” said State Sen. Terri Bryant, a Murphysboro Republican who sits on a subcommittee focused on family and child welfare issues.

The calls to action come on the heels of reporting by The Southern Illinoisan and ProPublica about the large number of parents who are investigated by the Illinois Department of Children and Family Services time and again for allegations of child abuse or neglect.

The reporting involved an analysis of departmental investigative case data by ProPublica and The Southern Illinoisan and found that parents and caregivers in Southern Illinois were more likely to face repeat DCFS investigations compared with those in other parts of the state. Numerous parents cycling through DCFS investigations told reporters they were having difficulty accessing the services they needed in order to keep or reunite with their children after an abuse or neglect allegation was reported to the department.

State Rep. Patrick Windhorst, a Republican from Metropolis, at the state’s southern border with Kentucky, also called on the governor and other state policymakers to take swift action to improve the lives of children and families involved with DCFS in Southern Illinois. The agency, he said, “is deeply in need of reform.”

Statewide, Illinois is experiencing escalating rates of “recurrence,” which measures the percentage of child abuse and neglect victims who are the subject of a subsequent substantiated DFCS investigation within a year of an earlier substantiated investigation. Illinois’ recurrence rate reached a 10-year high in fiscal year 2020 and was among the nation’s worst.

The analysis also found that most parents facing repeated investigations have not physically abused their children but instead face numerous allegations of neglect. Neglect is broadly defined as a failure to provide for basic needs such as food, clothing, shelter and supervision.

Bryant said that she called DCFS Director Marc Smith late last month, on the day the story was published, demanding answers about his agency’s plans for Southern Illinois families. She also expressed frustration that Smith, a Pritzker appointee, was quoted in the article blaming problems on the state’s budget woes, particularly during the administration of former Republican Gov. Bruce Rauner. Pritzker, a Democrat, ousted Rauner in the 2018 election and faces reelection this November. In recent months, Prtizker’s DCFS has faced intense scrutiny from child welfare officials and lawmakers from both parties.

Still, Bryant described her conversation with Smith as productive. He acknowledged to her the need to expand services in Southern Illinois, she said. He also told her — according to Bryant, and echoing his prior comments to reporters — that solving this issue can’t be the work of DCFS alone. The state’s other social service agencies, especially the Department of Human Services and the Department of Healthcare and Family Services, also play a role, he told her. They are responsible for ensuring that there’s a robust menu of drug treatment and mental health services available across the state, and that they’re accessible to low-income Illinoisans, including to the families involved with child welfare services. (A spokesman for DCFS confirmed that Bryant and Smith spoke about the need for a multi-agency response to these challenges.)

“The gist of it was that all three of those agencies have responsibilities when it comes to certain things for youth in care and their parents, and as he said that to me, it made sense.”

Still, Bryant questioned why the governor, who oversees all of those departments, isn’t doing more to bring them together to solve these issues. The 27 Southern Illinois counties served by DCFS’ Marion office and its satellite offices have collectively experienced a 120% spike in the number of children in foster care in a decade. “The time for DCFS, HFS and DHS to point fingers at each other is long past over,” she said.

While those agencies have acknowledged difficulties providing services in the region, officials emphasized recent efforts to solve those issues. In a statement, Alex Gough, Pritzker’s senior deputy press secretary, reiterated the administration’s claim that the service deserts and the worsening child welfare trends are attributable to Rauner’s budget policies.

“After social service programs were hollowed out over four years under the previous administration, Governor Pritzker has worked tirelessly to restore reliable services in every corner of the state,” Gough said. Numerous attempts to reach Rauner were unsuccessful.

Pritzker has “invested hundreds of millions of dollars in programs that help families build better lives,” Gough added. That has included increasing funding for mental health and substance abuse treatment, and expanding access to housing, child care and food programs for low-income families. Further, he said, the governor tapped two experienced executives in March to lead an overhaul of the state’s behavioral health support systems for adults and children, and to oversee the expansion of services into areas where they are lacking.

DHS spokesperson Patrick Laughlin said the governor has committed more resources for substance abuse prevention and recovery, as well as for family support services, “than ever before.”

Jamie Munks, spokesperson for HFS, acknowledged that accessing specialty and behavioral health services “has long proven challenging in certain parts of the state.” But in this administration, she said, the department is working under a mandate to increase equitable access to health care services. The department launched a program last year aimed at improving health care access in rural and underserved areas.

In recent years, Windhorst said the General Assembly has considered several proposals to make child welfare services more responsive locally. One proposal called for fracturing DCFS’ statewide authority and placing regional branches under the control of the chief judge of each circuit. Another proposal called for expanding court involvement for parents in substantiated cases of abuse or neglect but whose circumstances do not necessitate immediate removal of their children. But before any reform efforts can be implemented, they “require the needed services to be available,” he said.

“That has long been an issue in southernmost Illinois and will require DCFS to focus on how it uses resources that are sometimes scarce in our region and are often more readily available out of state,” Windhorst said.

by Molly Parker, The Southern Illinoisan

Help Us Investigate Racial Disparities in Arizona’s Child Welfare System

2 years 6 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

Reporters at ProPublica and NBC News are conducting research on Arizona’s child protective services agency (the Department of Child Safety, or DCS) and how it investigates Black families in the Phoenix area at a higher rate than white families. We would like to hear directly from people who have been affected by this issue.

We’re especially interested in speaking with Black families who have had any interaction with DCS, which used to be called Child Protective Services, or CPS. We’d also like to hear from others who know about this topic, such as educators and community organizers.

We know this can be difficult to talk about. We appreciate you sharing your story, and we take your privacy seriously. It is important to us. We are gathering these stories for the purposes of our reporting, and we will contact you if we wish to publish any part.

Filling out the short questionnaire below will help us shine a light on the important issue of racial disparities in Arizona’s child protective services system.

by Eli Hager and Asia Fields

What You Need to Know When You Give Birth in a Country With Rising Maternal Mortality Rates

2 years 6 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

The original version of this story, which was co-published with NPR, is available here. The version below contains updated links and statistics and has been condensed for clarity.

In 2017, ProPublica and NPR launched a project shedding light on maternal deaths and near-deaths in the U.S. We explored better ways to track and understand preventable deaths, and the intergenerational trauma caused by childbirth complications and chronic racial disparities in who suffers from them. We heard from more than 5,000 people who endured, or watched a loved one endure, life-threatening pregnancy and childbirth complications, often resulting in long-lasting physical and emotional effects.

These people who sent us their stories frequently told us they knew little to nothing beforehand about the potentially fatal complications that they or their loved ones faced. They wanted to help others. So we decided to publish some of their wisdom.

They told us what they wish they had known ahead of their severe complications: How do I get medical professionals to listen? When are changes in my body normal, and when are they a warning? How do I navigate the postpartum period? In the years since, other readers have told us this advice was critical.

Recent data shows maternal deaths, including deaths in the first six weeks after childbirth, rose in the first year of the pandemic. The increase puts the nation’s maternal mortality rate at 23.8 deaths per 100,000 live births in 2020, up from 20.1 deaths in 2019.

If the U.S. Supreme Court strikes down Roe v. Wade, they’ll do so in a country where pregnancy and childbirth continue to become more dangerous. We’re republishing this advice today, in a shortened and easier-to-navigate format, because self-advocacy and community knowledge are important when systems fail.

Choosing a Provider

“A lot of data on specific doctors and hospitals can be found publicly. Knowing how your physician and hospital rates as compared to others (cesarean rates, infection rates, readmission rates) can give you valuable insight into how they perform. ‘Liking’ your doctor as a person is nice, but not nearly as important as their and their facility’s culture and track record.”

— Kristen Terlizzi, survivor of a 2014 placenta accreta spectrum (a disorder in which the placenta grows into or through the uterine wall) and cofounder of the National Accreta Foundation

Key pieces of information every woman should know before choosing a hospital are: What are their safety protocols for adverse maternal events? No one likes to think about this while pregnant, and providers will probably tell you that it’s unlikely to happen. But it does happen and it’s good to know that the hospital and providers have practiced for such scenarios and have proper protocols in place.”

— Marianne Drexler, survived a hemorrhage and emergency hysterectomy in 2014

If a birthing center is your choice, discuss what happens in an emergency — how far away is the closest hospital with an ICU? Because a lot of hospitals don’t have them. Another thing many women don’t realize is that not every hospital has an obstetrician there 24/7. Ask your doctors: If they’re not able to be there the whole time you’re in labor, will there be another ob/gyn on site 24 hours a day if something goes wrong?”

— Miranda Klassen, survivor of amniotic fluid embolism in 2008 and founder/executive director of the Amniotic Fluid Embolism Foundation

Preparing for an Emergency

“A conversation about possible things that could go wrong is prudent to have with your doctor or in one of these childbirth classes. I don’t think that it needs to be done in a way to terrify the new parents, but as a way to provide knowledge. The pregnant woman should be taught warning signs, and know when to speak up so that she can be treated as quickly and accurately as possible.”

— Susan Lewis, survived disseminated Intravascular Coagulation (DIC) in 2016

“Always have somebody with you in a medical setting to ask the questions you might not think of and to advocate on your behalf if your ability to communicate is compromised by being in poor health. ... And get emotional support to steel you against the naysayers. It may feel really unnatural or difficult to push back [against doctors and nurses]. Online forums and Facebook groups can be helpful to ensure you’re not losing your mind.”

— Eleni Tsigas, survivor of preeclampsia in 1998 and 1999 and chief executive officer of the Preeclampsia Foundation

“In case you ever are unable to respond, someone needs to step in and be your voice! Know as much thorough medical history as possible, and let your spouse or support person know [in depth] your history as well.”

— Kristina Landrus, survived a hemorrhage in 2013

“Also be sure your spouse and your other family members, like your parents or siblings, are on the same page about your care. And if you aren’t married, who will be making the decisions on your behalf? You should put things in order, designate the person who will be the decision maker, and give that person power of attorney. Other important things to have are a medical directive or a living will — be sure to bring a copy with you to the hospital. I also recommend packing a journal to record everything that happens.”

— Miranda Klassen

Make a list of your questions and make sure you get the full answer. I went to every appointment the second time around with a notebook. I would apologize for being ‘that patient,’ but I had been through this before and I wasn’t going to be confused again. I wanted to know everything. Honestly, it was as harmful as it was helpful. I knew what I was getting into, which made it much scarier. The first time, my ignorance was bliss. I didn’t realize I almost died until two weeks after I had left the hospital. I didn’t even start researching what had happened to me until months later. The second time I was an advocate for myself. Medical journals and support groups were a part of every single visit. And thankfully, I was in good hands.”

— Carrie Anthony, survived placenta accreta and hemorrhage in 2008 and 2015 as well as placenta previa in the second pregnancy

Write down what each specialty says to you. ... They paraded in on a schedule, checked up on me, asked if I had any questions. I always did, but I regret not writing down what each said each time (along with names!). I got so many different answers regarding how I would be anesthetized, and on the day it all had to happen in an emergency, there were disagreements above me in the OR between the specialists. It was like children arguing on a playground and my life was in danger. Had I kept a more vigilant record of what each specialty reported to me, perhaps prior to the day I could have confronted each with the details that weren’t matching up.”

— Megan Moody, survived placenta percreta (when the placenta penetrates through the uterine wall) in 2016

People should know that they have a right to ask for more time with the doctor or more follow-up if they feel something is not right. The OB-GYNs (at least in Pennsylvania) are so busy and sometimes appointments are quite quick and rushed. Make the doctors slow down and take the time with you.”

— Dani Leiman, survived HELLP syndrome (a particularly dangerous variant of preeclampsia) in 2011

You have a legal right to your medical records throughout pregnancy and anytime afterwards. Get a copy of your lab results each time blood is drawn, and a copy of your prenatal and hospital reports. Ask about concerning or unclear results.”

— Eleni Tsigas

Getting Your Provider to Listen

Understand the system. Ask a nurse or a trusted loved one in the ‘industry’ how it all works. I’ve found that medical professionals are more likely to listen to you if you demonstrate an understanding of their roles and the kind of questions they can/cannot answer. Know your ‘silos.’ Don’t ask an anesthesiologist how they plan on stitching up your cervix. Specialists are often incredibly impatient. You need to get the details out of them regarding their very specific roles.”

— Megan Moody

“If your provider tells you, ‘You are pregnant. What you’re experiencing is normal,’ remember — that may be true. [But it’s also true] that preeclampsia can mimic many normal symptoms of pregnancy. Ask, ‘What else could this be?’ Expect a thoughtful answer that includes consideration of ‘differential diagnoses’ — in other words, other conditions that could be causing the same symptoms.”

— Eleni Tsigas

They only listen if the pain is a 10 or higher. Most of us don’t understand what a 10 is. I’d always imagined a 10 would feel like having a limb blown off in combat. When asked to evaluate your pain on a scale of 1 to 10, when you are in your most vulnerable moment, it is very hard to assess this logically, for you and for your partner witnessing your pain. I later saw a pain chart with pictures. A 10 was demonstrated with an illustration of a crying face. You may not actually be shedding tears, but you are most likely crying on the inside in pain, so I suggest to always say a 10. My pain from the brain hemorrhage was probably a 100, but I’m not sure if I even said 10 at the time.”

— Emily McLaughlin, survived a postpartum stroke in 2015

“So many women do speak up about the strange pain they have, and a nurse may brush it off as normal without consulting a doctor and running any tests. Be annoying if you must, this is your life. ... Thankfully, I never had to be so assertive. I owe my life to the team of doctors and nurses who acted swiftly and accurately, and I am eternally grateful.”

— Susan Lewis

If you have a hemorrhage, don’t clean up after yourself! Make sure the doctor is fully aware of how much blood you are losing. I had a very nice nurse who was helping to keep me clean and helping to change my (rapidly filling) pads. If the doctor had seen the pools of blood himself, rather than just being told about them, he might not have been so quick to dismiss me.”

— Valerie Bradford, survived a hemorrhage in 2016

Paying Attention to Your Symptoms

“I had heard of preeclampsia but I was naïve. [I believed] that it was something women developed who didn’t watch what they ate and didn’t focus on good health prior and/or during pregnancy. I was in great health and shape prior to getting pregnant, during my pregnancy I continued to make good food choices and worked out up until 36 hours before the baby had to be taken. I gained healthy weight and kept my BMI at an optimum number. I thought due to my good health, I was not susceptible to anything and my labor would be easy. So although I had felt bad for 1 1/2 weeks, I chalked it up to the fact that I was almost 8 months into this pregnancy, so you’re not supposed to feel great. … I walked into my doctor’s office that Friday and not one hour later I was in an emergency C-section delivering a baby. I had to fully be put under due to the severity of the HELLP, so I didn’t wake up until the next day.”

— Kelli Davis, survived HELLP syndrome in 2016

“Understand that severe, sustained pain is not normal. So many people told me that the final trimester of pregnancy is sooo uncomfortable. It was my first pregnancy, I have a generally high threshold for pain, and my son was breech so I thought his head was causing bad pain under my ribs [when it was really epigastric pain from the HELLP syndrome]. I kept thinking it was normal to be in pain and I let it go until it was almost too late.

— Dani Leiman

Know the way your blood pressure should be taken. And ask for the results. Politely challenge the technician or nurse if it’s not being done correctly or if they suggest ‘changing positions to get a lower reading.’ Very high blood pressure (anything over 160/110) is a ‘hypertensive crisis’ and requires immediate intervention.”

— Eleni Tsigas

Please ask for a heart monitor for yourself while in labor, not just for the baby. I think if I had one on, seconds or minutes could have been erased from reaction time by the nurses. They were alerted to an issue because the baby’s heart stopped during labor, and while the nurse was checking that machine, my husband noticed I was also non-responsive. That’s when everything happened.”

— Kristy Kummer-Pred, survived amniotic fluid embolism and cardiac arrest in 2012

After the Delivery

“My swelling in my hands and feet never went away. My uterus hadn’t shrunk. I wasn’t bleeding that bad, but there was a strange odor to it. My breasts were swollen and my milk wasn’t coming in. I was misdiagnosed with mastitis [a painful inflammation of the breast tissue that sometimes occurs when milk ducts become plugged and engorged]. The real problem was that I still had pieces of placenta inside my uterus. Know that your placenta should not come out in multiple pieces. It should come out in one piece. If it is broken apart, demand an ultrasound to ensure the doctors got it all. If you have flu-like symptoms, demand to be seen by a doctor. If you don’t like your doctor, demand another one.”

— Brandi Miller, survived placenta accreta and hemorrhage in 2015

“There is a period in the days and weeks after delivery where your blood pressure can escalate and you can have a seizure, stroke, or heart attack, even well after a healthy birth. You should take your own blood pressure at home if your doctor doesn’t tell you to. ... Unfortunately, I went home from [all my postpartum] appointments with my blood pressure so high that I started having a brain hemorrhage. Not one single person ever thought of taking my blood pressure when I was complaining about my discomfort and showing telltale warning signs of [preeclampsia].”

— Emily McLaughlin

The postpartum period is when a lot of pregnancy-related heart problems like cardiomyopathy emerge. If there is still difficulty breathing, fluid buildup in ankles, shortness of breath and you are unable to lie flat on your back, go see a cardiologist ASAP. If you have to go to an emergency room, request to have the following tests performed: echocardiogram (echo) test, ejection fraction test, B-type natriuretic peptides (BNP), EKG test and chest X-ray test. These tests will determine if your heart is failing and will save your life.”

— Anner Porter, survivor of peripartum cardiomyopathy in 1992

Rest as much as possible — for as long as possible. Being in too big a rush to get ‘back to normal’ can exacerbate postpartum health risks. Things that are not normal: heavy bleeding longer than 6 weeks, or bleeding that stops and starts again, not producing milk, fevers, severe pain (especially around incision sites), excessive fatigue, and anxiety/depression. If you don’t feel like yourself, get help.”

— Amy Barron Smolinski, a survivor of preeclampsia, postpartum hemorrhage and other complications in three pregnancies in 2006, 2011 and 2012 and executive director of Mom2Mom Global, a breastfeeding support group

Know that your preexisting health conditions may be impacted by having a baby (hormone changes, sleep deprivation, stress). Record your health and your baby’s in a journal or app to track any changes. Reach out to the nurse or doctor when there are noticeable changes that you have tracked.”

— Noelle Garcia, survived placental abruption (placenta separating from the uterine wall during pregnancy) in 2007

If your hospital discharges you on tons of Motrin or pain killers, be aware that this can mask the warning signs of headache, which is sometimes the only warning sign of preeclampsia coming on postpartum.”

— Emily McLaughlin

Grappling With the Emotional Fallout

I wish I had known that postpartum PTSD was possible. Most people associate PTSD with the effects of war, but I was diagnosed with PTSD after my traumatic birth and near-death experience. Almost 6 years later, I still experience symptoms sporadically.”

— Meagan Raymer, survived severe preeclampsia and HELLP syndrome in 2011

I recommend therapy with a female therapist specializing in trauma. Honestly, I avoided it for 8 months. I was then in therapy for 12 months. I still have ongoing anxiety ... but I would be in a very bad place (potentially depression and self-harm due to self-blame) were it not for therapy. It was so hard to admit [what was happening]. I started to get a suspicion when I heard an NPR story about a veteran with PTSD. I thought ... that sounds like me. And I started Googling.”

— Jessica Rae Hoffman, survived severe sepsis and other complications in 2015

“The emotional constructs our society puts around pregnancy and childbirth make the ideas of severe injury and death taboo. Childbirth is a messy, traumatic experience. ... Many women don’t seek care even when they instinctively believe something is wrong because they’re supposed to ‘be happy.’ Awareness and transparency are so important.”

— Leah Soule, survived a hemorrhage in 2015

I wish I had understood how significant the impact was on my husband. Emotionally, the experience was much more difficult and long-lasting for him than for me, and it continued to affect his relationship with both me and our baby for quite a while, at a time when I didn’t think it was a thing at all.”

— Elizabeth Venstra, survived HELLP syndrome in 2014

I would suggest establishing yourself ahead of time with a doula or midwife that can make postpartum visits to your home, which can promote health even if everything goes smoothly. Many communities have those services available if you can’t afford them. [A doula] wasn’t covered through our insurance, but the social worker at the hospital arranged for someone paid for by [San Diego County] to come and do several checks on me and my son, which was very reassuring to both my husband and me.”

— Miranda Klassen

Other Resources

Help us continue reporting on pregnancy and childbirth. Have you had an experience with prenatal genetic testing? Tell us here. We want to understand more about your interactions with genetic screening providers.

by Adriana Gallardo

Draft Overturning Roe v. Wade Quotes Infamous Witch Trial Judge With Long-Discredited Ideas on Rape

2 years 6 months ago

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When U.S. Supreme Court Justice Samuel Alito, in a draft opinion obtained and published this week by Politico, detailed his justifications for overturning Roe v. Wade, he invoked a surprising name given the case’s subject. In writing about abortion, a matter inextricably tied to a woman’s control over her body, Alito chose to quote from Sir Matthew Hale, a 17th-century English jurist whose writings and reasonings have caused enduring damage to women for hundreds of years.

The so-called marital rape exemption — the legal notion that a married woman cannot be raped by her husband — traces to Hale. So does a long-used instruction to jurors to be skeptical of reports of rape. So, in a way, do the infamous Salem witch trials, in which women (and some men) were hanged on or near Gallows Hill.

Hale’s influence in the United States has been on the wane since the 1970s, with one state after another abandoning his legal principles on rape. But Alito’s opinion resurrects Hale, a judge who was considered misogynistic even by his era’s notably low standards. Hale once wrote a long letter to his grandchildren, dispensing life advice, in which he veered into a screed against women, describing them as “chargeable unprofitable people” who “know the ready way to consume an estate, and to ruin a family quickly.” Hale particularly despaired of the changes he saw in young women, writing, “And now the world is altered: young gentlewomen learn to be bold” and “talk loud.”

An excerpt from Hale’s “Letter of Advice.” (Via Google Books)

Hale became Lord Chief Justice of England in 1671. In his time (Hale’s contemporaries included Oliver Cromwell and Charles II), Hale was a respected, perhaps even venerated, jurist known for piety and sober judgment. He wrote a two-volume legal treatise, “The History of the Pleas of the Crown,” that has proved influential ever since.

Alito, in his draft opinion, invokes “eminent common-law authorities,” including Hale, to show how abortion was viewed historically not as a right, but as a criminal act. “Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision,’” Alito wrote.

Even before “quickening” — defined by Alito as “the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy” — Hale believed an abortion could qualify as homicide. “Hale wrote that if a physician gave a woman ‘with child’ a ‘potion’ to cause an abortion, and the woman died, it was ‘murder’ because the potion was given ‘unlawfully to destroy her child within her,’” Alito wrote.

Courts have long leaned on precedents established by old cases and the scholarship of legal authorities from centuries gone by. But what happens when you trace citations back to their ancient source? In Hale’s case, you sometimes find a man conceiving precepts out of thin air. Other times it was the opposite, as he clung to notions that were already becoming anachronistic in the last half of the 17th century.

Consider the marital rape exemption. In “Pleas of the Crown,” Hale wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” So, according to Hale, marriage, for a woman, amounts to contractual forfeit, in which she loses legal protection or recourse should her husband sexually assault her.

Hale’s pronouncement became the accepted common law and served as foundation in the United States for immunizing a husband accused of raping his wife. And where did Hale’s pronouncement come from? What did he base it upon? Who knows? “Hale appears to have been the first to articulate what later would become an accepted legal principle, that a husband cannot be charged with raping his wife,” according to a footnote in one law review article. Another law review article, titled “The Marital Rape Exemption: Evolution to Extinction,” called Hale’s pronouncement “an unsupported, extrajudicial statement” lacking in authority.

Starting in the 1970s, states began to abandon the marital rape exemption, in whole or in part. In 1981, the Supreme Court of New Jersey wrote that it could find no support for Hale’s proposition among earlier writers. Hale’s declaration, the court found, “cannot itself be considered a definitive and binding statement of the common law, although legal commentators have often restated the rule since the time of Hale without evaluating its merits.” In 1984, the Supreme Court of Virginia wrote: “Hale's statement was not law, common or otherwise. At best it was Hale's pronouncement of what he observed to be a custom in 17th century England.” The Virginia court went on to note, “Moreover, Hale cites no authority for his view nor was it subsequently adopted, in its entirety, by the English courts.”

Like the marital rape exemption, the so-called Hale Warning to jurors caused centuries of misfortune in the American courts.

In “Pleas of the Crown,” Hale called rape a “most detestable crime.” Then, in words quoted many times since, he wrote, “It must be remembered, that it is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”

Hale evoked the fear of the false accuser — and made for that fear a legal frame, which lasted for more than 300 years. In weighing the evidence in cases of alleged rape, jurors (all men, in Hale’s time and for long after) needed to consider a series of factors, Hale wrote. Did the woman cry out? Did she try to flee? Was she of “good fame” or “evil fame”? Was she supported by others? Did she make immediate complaint afterward?

Hale’s words and formulation became a standard feature of criminal trials in the United States, with jurors instructed by judges to be especially wary of allegations of rape. The effect was predictable: Charges of rape were frequently rejected. In the United States, one early example was chronicled by historian John Wood Sweet in his soon-to-be-published book, “The Sewing Girl’s Tale.” (I was allowed to read an advance copy.)

In 1793, in New York City, an aristocrat, Henry Bedlow, was accused of raping a 17-year-old seamstress, Lanah Sawyer. Bedlow hired six lawyers, including a future U.S. Supreme Court justice, who used Hale’s framework to destroy Sawyer. Sawyer said she screamed. But, one attorney asked the jury, did she also stamp her feet? Witnesses spoke of Sawyer’s good fame, according to the trial record. But “she may have had the art to carry a fair outside, while all was foul within,” the same attorney argued. “Ultimately, the defense team’s dizzying effort to dispute and distort reality had been part of a relentless effort to transform a young woman who mattered into one who didn’t,” Sweet wrote. The jury took 15 minutes to acquit.

Starting in the 1970s and 1980s, courts in the United States began moving away from instructing juries with Hale’s admonition to be particularly skeptical of rape claims. The repudiation of Hale became so complete that when a Maryland lawmaker, in 2007, invoked Hale’s words in a state legislative hearing, it was met with “outrage,” according to the Washington Post.

Despite those legal changes, the fear of the false rape accuser still persists in the justice system, at times leading to horrendous outcomes. I began researching Hale when writing, with T. Christian Miller, “An Unbelievable Story of Rape,” published by ProPublica and the Marshall Project. The story reconstructs what happened when a young woman in Lynnwood, Washington, reported being raped. We later expanded the story into a book, “Unbelievable,” in which we described Hale’s influence in rape cases at greater length. (The story also became a Netflix series.)

Then there was Hale’s role in what today is synonymous with the perversion of justice: witch trials.

In 1662, Hale presided at a jury trial in Bury St. Edmunds in which two women, Amy Denny and Rose Cullender, were accused of being witches. In a book on this case, “A Trial of Witches,” authors Ivan Bunn and Gilbert Geis wrote that by 1662, “belief in witches was in retreat in England.” Hale, however, was not part of that retreat. He believed witches were real. “Hale represented not a mainstream position but rather one rapidly becoming anachronistic,” Bunn and Geis wrote.

What’s more, Hale instructed the jurors that witches were real. A written record of the trial recounts what Hale told them: “That there were such creatures as witches he made no doubt at all; for first, the scriptures had affirmed so much. Secondly, the wisdom of all nations had provided laws against such persons, which is an argument of their confidence of such a crime.”

The jury convicted Denny and Cullender, after which Hale sentenced both women to hang. (Four years before, Hale had also sentenced to death another woman convicted of being a witch.)

Hale’s influence, once again, extended beyond the immediate case and his time. Thirty years later, his handling of the trial in Bury St. Edmunds, preserved in written record, served as a model in Salem, Massachusetts, in the infamous witch trials in 1692. “Indeed, the Salem witch-hunts might not have taken place if there had not been a trial at Bury St. Edmunds: the events at Salem notoriously imitated those at Bury,” Bunn and Geis wrote.

Hale is known mostly for his legal treatises. But his views toward women are perhaps best revealed in a letter he wrote to his grandchildren, titled “Letter of Advice.” (In a twitter thread this week I said Hale’s letter was 182 pages long. I may have understated it. I’ve since found a version online that goes on for 206 pages.)

The title page of Hale’s letter. (Via Google Books)

In this letter, Hale prescribes individualized counsel for three granddaughters.

Mary, he wrote, possessed great wit and spirit, and “if she can temper the latter, will make an excellent woman, and a great housewife; but if she cannot govern the greatness of her spirit, it will make her proud, imperious, and revengeful.”

Frances, he wrote, possessed great confidence: “If she be kept in some awe, especially in relation to lying and deceiving, she will make a good woman and a good housewife.”

Ann, he wrote, possessed a “soft nature.” “She must not see plays, read comedies, or love books or romances, nor hear nor learn ballads or idle songs, especially such as are wanton or concerning love-matters, for they will make too deep an impression upon her mind.”

Hale complained in his letter that young women “make it their business to paint or patch their faces, to curl their locks, and to find out the newest and costliest fashions.” And with that, he was just getting started. Hale followed with a 160-word sentence that is a marvel in its depth of disdain.

“If they rise in the morning before ten of the clock, the morning is spent between the comb, and the glass, and the box of patches; though they know not how to make provision for it themselves, they must have choice diet provided for them, and when they are ready, the next business is to come down, and sit in a rubbed parlour till dinner come in; and, after dinner, either to cards, or to the exchange, or to the play, or to Hyde Park, or to an impertinent visit; and after supper, either to a ball or to cards; and at this rate they spend their time, from one end of the year to the other; and at the same rate they spend their parent’s or husband’s money or estates in costly clothes, new fashions, chargeable entertainments: their home is their prison, and they are never at rest in it, unless they have gallants and splendid company to entertain.”

Some observers have been taken aback that Alito referenced Hale. But not everyone was surprised. Eileen Hunt, a Notre Dame political science professor who has written extensively about Mary Wollstonecraft, author of the path-breaking 1792 treatise “A Vindication of the Rights of Woman,” tweeted:

“It is a truth universally acknowledged that a conservative Supreme Court justice will cherry-pick an Enlightenment-era man as a timeless authority on reproductive rights but ignore #Wollstonecraft’s pivotal philosophical views on women, mothering, and the sexual double standard.”

by Ken Armstrong