Tuesday, June 26, 2012

The bill, not the whole bill, but still a good bill

This is a half-a-loaf story, admittedly. But it is a story that shows how the Sierra Club is working to promote environmental and climate justice in a very practical way.

In 2010 I drafted a bill with two major goals: to end the use of coal in our commonwealth and to help the communities and workers affected by any coal-plant closures. The bill's name is the Act to Phase Out Coal Burning in Massachusetts and its number is H. 2612. As well as enjoying the active support of the Sierra Club of Massachusetts, it won the endorsement of the Massachusetts Democratic Party's state convention (thanks to PDA), and of two Green party chapters. Earlier this month, after making a significant amendment, the Joint Committee on Telecommunications, Utilities, and Energy (TUE) voted 15:1 in favor of the bill, which means it now goes to the House Committee on Ways and Means.

Let me explain the significance of the amendment. Originally, H. 2612 gave utilities a simple choice: By 2020 they must either repower their coal-fired power stations to cleaner energy or retire them. In other words, convert or close down. To alleviate any negative effects, such as job layoffs, the Sierra Club proposed a Community Repowering Fund to pay for retraining and other forms of practical support. But only half the bill emerged from TUE. Which part fell to the cutting-room floor? The coal phase-out part.

Losing half the bill is disappointing, so I am hardly doing cartwheels and scattering rose petals. But legislating an end to coal-burning in Massachusetts is now almost unnecessary. Economics is already taking care of it. Most of the electricity we use in this commonwealth comes from natural gas. Although it is a fossil fuel, natural gas is arguably somewhat less harmful than coal in terms of CO2 emissions (methane is another story) and because fracking technology makes natural gas so much cheaper, coal's days are numbered. As a result, our state now hosts only three coal-fired power stations, namely Brayton Point in Somerset, Salem Harbor, and Mount Tom in Holyoke. Salem Harbor is scheduled to close in 2014, and Mount Tom also seems to be winding downHolyoke's mayor, AlexMorse, has appointed a committee to look into alternative uses for the Mount Tom site.

Even though coal-burning is on the way out, it would have been much better to have a timetable with a date certain in the form of the 2020 phase-out deadline. Nevertheless, the survival of the Community Repowering Fund provision makes the bill -- even minus the phase-out provision -- worthy of support.

Underlying the idea of the fund is a simple principle, one that appears in the preamble to the Constitution of the Commonwealth of Massachusetts: "The body politic... is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." Rather than letting employees bear the whole cost of coal's decline, the Sierra Club bill would spread the cost through society as a whole in a practical application of this constitutional principle of governing for the common good. Pushing the whole cost of closure onto the communities that have already borne a disproportionate burden by hosting coal-fired power stations would not be fair. All of us reaped the benefits of cheap coal-powered electricity and we should all pay -- through taxes -- our fair share when coal plants close.

Coal-company propagandists like to draw false battle lines, pitching workers against environmentalists. This bill demonstrates their mendacity. By advocating for the Community Repowering Fund, the nation's leading environmental organization offers clear proof that it is looking out for workers' interests. If H. 2612 wins the approval of House Ways and Means it stands a very good chance of becoming law and, if it does, former coal-plant employees and their families, friends, and neighbors in Salem and Holyoke should remember that the organization that led the fight was the Sierra Club of Massachusetts.
from coal to clean energy

Monday, June 18, 2012

Does "any person" exclude coworkers?

Does the term “any person” mean exactly that, or does it mean “any person in a supervisory capacity or with managerial authority”? The former, said the United States District Court for the District of Massachusetts last month in Martin v. Irwin Industrial Tool Company.
But a recent post in Business West suggests that the court’s interpretation of the Massachusetts anti-discrimination statute was wrong. At issue are two paragraphs within section 4 of chapter 151B, which makes it unlawful for “any person” to discriminate or to “coerce, intimidate, threaten, or interfere with” another person in the enjoyment of their rights under the statute. The court’s supposed error was holding that the statute allows victims of sexual harassment to sue the harasser as an individual, even when that individual is not a supervisor. According to the post, the way the court construed the term “person” defies the intent of the Legislature and offends public policy. I disagree.
With all due respect to the attorney who wrote the post, the court’s decision is the only reasonable construction of the clear, unambiguous language of the statute. It is also consistent with the way the Massachusetts Commission Against Discrimination (MCAD) has been applying the law since 1994. The MCAD’s Sexual Harassment at Work Guidelines make this clear, citing the Commission’s 1994 decision in Carney v. Town of Falmouth Police Department.  If this was not how the Legislature intended the MCAD to apply the term “person” in the context of liability for sexual harassment, it has had 18 years to correct the situation.
As for the suggestion that in the context of sexual harassment claims “person” only means employer or an agent acting on behalf of the employer, the court pointed out that several provisions of the the statute make a distinction between individuals and employers. Paragraphs 9, 9A and 11A, for example, apply to “an employer” whereas paragraphs 4 and 4A — at issue in Martin — apply to “any person.” Excluding ordinary coworkers from the scope of paragraphs 4 and 4A would be reading into the statute an exception that the Legislature did not intend to make.
With regard to public policy, there is nothing novel, misguided, or unsettling about the way the United States District Court construed the term “person” in this case. To the contrary, over many years employers and employees alike in Massachusetts have reasonably relied on the MCAD’s consistent rulings on this issue. If the US District Court had departed from the MCAD’s decisions the outcome would have been confusion and uncertainty, neither of which constitute sound public policy.