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Anti-Regulation Law Favored by Kochs Could Nix Environmental Safeguards in Wisconsin

Politics
Wisconsin State Capitol. Joseph / Flickr

By Steve Horn

The conservative Wisconsin Institute for Law and Liberty (WILL) has sued Wisconsin State Superintendent Tony Evers for what it alleges was a state education agency's violation of an anti-regulatory law—long pushed by the petrochemical billionaire Koch brothers—known as the REINS Act.

Wisconsin's version of REINS, or Regulations from the Executive in Need of Scrutiny, is a piece of legislation heavily lobbied and advocated in favor of for over half a decade by Americans for Prosperity, a policy and electioneering advocacy front group founded and funded by the Koch Family Foundations and Koch Industries.


The bill, which has a federal equivalent in Congress, has long been seen as the crown jewel of the Koch network. It essentially gives legislative bodies full veto power over regulations, including proposed environmental safeguards, which have been proposed by executive agencies—even when those regulations are mandated by laws legislatures have passed.

WILL's November 20 lawsuit, if successful, would be the first time the REINS Act is used to halt a proposed regulation. WILL is funded almost entirely by the conservative Milwaukee, Wisconsin-based Bradley Foundation, which has offices located next door. Wisconsin's Republican Governor Scott Walker, who is up for re-election in 2018, became the first state chief executive to sign the state equivalent of REINS into law.

Walker has long maintained close ties with the Koch network and has received millions of dollars in campaign contributions from the juggernaut.

The federal version of the REINS Act, first introduced early in Barack Obama's presidency, was again proposed during the 2017 congressional session. The bill passed early in the year in the House, but not in the Senate, where it currently has 38 co-sponsors.

Rep. Steve Haugaard, a Republican in the South Dakota legislature, recently told the Heartland Institute that he too is in the process of bringing a version of the REINS Act to his state. The American Legislative Exchange Council (ALEC), a corporate-funded group which brings lobbyists and generally Republican Party state legislators together to vote on model bills at its annual meetings, has a resolution in support of the REINS Act as one of its pieces of model legislation.

Wisconsin Supreme Court, WILL Tie

WILL has brought the lawsuit directly to the Wisconsin Supreme Court. It argues that Evers, a Democratic Party gubernatorial candidate, has promulgated proposed regulations without sending a detailed "scoping statement" to the state's Department of Administration. That office functions, in essence, as an extension of the governor's office.

Such a statement would have laid out the costs for stakeholders to comply with the proposed rules. The lack of this statement was discovered via an open records request filed by WILL, according to the complaint and exhibits from the case. The Wisconsin version of REINS requires that this type of scoping document be published, mandating that if the costs of regulatory compliance rise above $10 million, the bill or regulation either be rewritten or discarded.

"State Superintendent Evers is blatantly violating newly enacted state law," Rick Esenberg, WILL president and general counsel, said in a press release. "The legislature passed the REINS Act to make all agencies, including the Department of Public Instruction, more accountable to the elected-state legislature and open to the people of Wisconsin. No one, including Superintendent Evers, is above the rule of law in Wisconsin."

As the Associated Press noted, Gov. Walker recently appointed Dan Kelly, who formerly sat on WILL's litigation advisory board, to the Supreme Court in July 2016. Upon the appointment, WILL issued a statement in support of Kelly.

"I've known Dan a long time and enjoyed our personal and professional relationship. He is a very bright, capable attorney who believes in a judiciary that interprets the law objectively, fairly, and follows where the law might lead," WILL's Esenberg said in a press release. "His experience unquestioningly qualifies him for the Supreme Court where reason and sophisticated legal analysis guides public policy affecting nearly six million Wisconsinites."

The Wisconsin Manufacturers and Commerce—the Wisconsin state-level equivalent of the U.S. Chamber of Commerce—has inserted itself into the case by filing an amicus, or friend of the court, brief in support of WILL's lawsuit.

Legal Representation Issues

Beyond the lawsuit itself, Evers is actually having problems related to legal representation for the nascent case because he does not want to be represented by counsel from the office of Wisconsin Attorney General Brad Schimel. Schimel has come out in agreement with REINS and its implementation.

Pointing to this set of circumstances, Evers wrote a letter on Nov. 28 and then held a subsequent press conference on Nov. 29 laying out why he would like to use his own team of lawyers, including Department of Public Instruction in-house counsel, for the case.

"I believe that your office is neither willing nor ethically able to provide representation in this matter," wrote Evers. "[Wisconsin Supreme Court's Rules of Professional Conduct] require all attorneys, including those at the Department of Justice, to advocate for their clients, abide by a client's decisions concerning the objectives of representation, and avoid conflicts of interest."

Evers and the rest of the Walker-run bureaucracy are at odds to begin with because, in Wisconsin, the state superintendent of public instruction, an office Evers also holds, is an elected post. Further complicating things: Evers, if he wins the Democratic Party gubernatorial primary in August, would be Walker's opponent in the general election.

"In perhaps the most outrageous Republican attempt to consolidate all political power in the hands of Gov. Scott Walker, Attorney General Brad Schimel, echoing French king Louis XIV, has effectively declared that he is the state (l'état, c'est moi)," wrote Wisconsin attorney Lester Pines of the development. "Schimel's expression of absolute authority arose in the latest effort by Walker to gain control of the only other executive officer created by the Wisconsin Constitution who has vested executive power, the superintendent of public instruction."

Dairy State Crucible

As previously reported by DeSmog, Schimel was also a co-plaintiff for the lawsuits spearheaded by then-Oklahoma Attorney General and current U.S. Environmental Protection Agency Administrator Scott Pruitt against the Clean Power Plan. The Clean Power Plan would have regulated carbon emissions from coal-fired power plants. Pruitt—a climate change denier, as is President Donald Trump—has repealed the Clean Power Plan and now mulls its required replacement.

A spokesperson for Schimel's office, Johnny Koremenos, told WisPolitics.com that the Office of the Attorney General is his legal counsel whether "Evers likes it or not."

"Whether Superintendent Evers likes it or not, the State of Wisconsin is the actual defendant in this lawsuit, and his personal opinions as to what the law is or should be will have no bearing on the attorney general's power or ethical duty to represent the state," said Koremenos.

Beyond the legal representation quagmire, Evers' Department of Public Instruction has also called for the lawsuit to be dismissed on its face. Agency spokesperson Tom McCarthy told the Milwaukee Journal-Sentinel, "The case has no merit, period. The only people that don't understand this is WILL."

What happens in the days and months ahead with the WILL lawsuit, though, will likely have big implications for environmental regulations not only in Wisconsin but likely far beyond, with the Dairy State once again serving as a test case and battleground for the implementation of the Koch agenda.

Reposted with permission from our media associate DeSmogBlog.

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The patient in the case report (let's call him Tom) was 54 and in good health. For two days in May, he felt unwell and was too weak to get out of bed. When his family finally brought him to the hospital, doctors found that he had a fever and signs of a severe infection, or sepsis. He tested positive for SARS-CoV-2, the virus that causes COVID-19 infection. In addition to symptoms of COVID-19, he was also too weak to move his legs.

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We are neurologists specializing in intensive care and leading studies related to neurological complications from COVID-19. Given the occurrence of Guillain-Barre Syndrome in prior pandemics with other corona viruses like SARS and MERS, we are investigating a possible link between Guillain-Barre Syndrome and COVID-19 and tracking published reports to see if there is any link between Guillain-Barre Syndrome and COVID-19.

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What Is Guillain-Barre Syndrome?

Guillain-Barre syndrome occurs when the body's own immune system attacks and injures the nerves outside of the spinal cord or brain – the peripheral nervous system. Most commonly, the injury involves the protective sheath, or myelin, that wraps nerves and is essential to nerve function.

Without the myelin sheath, signals that go through a nerve are slowed or lost, which causes the nerve to malfunction.

To diagnose Guillain-Barre Syndrome, neurologists perform a detailed neurological exam. Due to the nerve injury, patients often may have loss of reflexes on examination. Doctors often need to perform a lumbar puncture, otherwise known as spinal tap, to sample spinal fluid and look for signs of inflammation and abnormal antibodies.

Studies have shown that giving patients an infusion of antibodies derived from donated blood or plasma exchange – a process that cleans patients' blood of harmful antibodies - can speed up recovery. A very small subset of patients may need these therapies long-term.

The majority of Guillain-Barre Syndrome patients improve within a few weeks and eventually can make a full recovery. However, some patients with Guillain-Barre Syndrome have lingering symptoms including weakness and abnormal sensations in arms and/or legs; rarely patients may be bedridden or disabled long-term.

Guillain-Barre Syndrome and Pandemics

As the COVID-19 pandemic sweeps across the globe, many neurologic specialists have been on the lookout for potentially serious nervous system complications such as Guillain-Barre Syndrome.

Though Guillain-Barre Syndrome is rare, it is well known to emerge following bacterial infections, such as Campylobacter jejuni, a common cause of food poisoning, and a multitude of viral infections including the flu virus, Zika virus and other coronaviruses.

Studies showed an increase in Guillain-Barre Syndrome cases following the 2009 H1N1 flu pandemic, suggesting a possible connection. The presumed cause for this link is that the body's own immune response to fight the infection turns on itself and attacks the peripheral nerves. This is called an "autoimmune" condition. When a pandemic affects as many people as our current COVID-19 crisis, even a rare complication can become a significant public health problem. That is especially true for one that causes neurological dysfunction where the recovery takes a long time and may be incomplete.

The first reports of Guillain-Barre Syndrome in COVID-19 pandemic originated from Italy, Spain and China, where the pandemic surged before the U.S. crisis.

Though there is clear clinical suspicion that COVID-19 can lead to Guillain-Barre Syndrome, many important questions remain. What are the chances that someone gets Guillain-Barre Syndrome during or following a COVID-19 infection? Does Guillain-Barre Syndrome happen more often in those who have been infected with COVID-19 compared to other types of infections, such as the flu?

The only way to get answers is through a prospective study where doctors perform systematic surveillance and collect data on a large group of patients. There are ongoing large research consortia hard at work to figure out answers to these questions.

Understanding the Association Between COVID-19 and Guillain-Barre Syndrome

While large research studies are underway, overall it appears that Guillain-Barre Syndrome is a rare but serious phenomenon possibly linked to COVID-19. Given that more than 10.7 million cases have been reported for COVID-19, there have been 10 reported cases of COVID-19 patients with Guillain-Barre Syndrome so far – only two reported cases in the U.S., five in Italy, two cases in Iran and one from Wuhan, China.

It is certainly possible that there are other cases that have not been reported. The Global Consortium Study of Neurological Dysfunctions in COVID-19 is actively underway to find out how often neurological problems like Guillain-Barre Syndrome is seen in hospitalized COVID-19 patients. Also, just because Guillain-Barre Syndrome occurs in a patient diagnosed with COVID-19, that does not imply that it was caused by the virus; this still may be a coincident occurrence. More research is needed to understand how the two events are related.

Due to the pandemic and infection-containment considerations, diagnostic tests, such as a nerve conduction study that used to be routine for patients with suspected Guillain-Barre Syndrome, are more difficult to do. In both U.S. cases, the initial diagnosis and treatment were all based on clinical examination by a neurological experts rather than any tests. Both patients survived but with significant residual weakness at the time these case reports came out, but that is not uncommon for Guillain-Barre Syndrome patients. The road to recovery may sometimes be long, but many patients can make a full recovery with time.

Though the reported cases of Guillain-Barre Syndrome so far all have severe symptoms, this is not uncommon in a pandemic situation where the less sick patients may stay home and not present for medical care for fear of being exposed to the virus. This, plus the limited COVID-19 testing capability across the U.S., may skew our current detection of Guillain-Barre Syndrome cases toward the sicker patients who have to go to a hospital. In general, the majority of Guillain-Barre Syndrome patients do recover, given enough time. We do not yet know whether this is true for COVID-19-related cases at this stage of the pandemic. We and colleagues around the world are working around the clock to find answers to these critical questions.

Sherry H-Y. Chou is an Associate Professor of Critical Care Medicine, Neurology, and Neurosurgery, University of Pittsburgh.

Aarti Sarwal is an Associate Professor, Neurology, Wake Forest University.

Neha S. Dangayach is an Assistant Professor of Neurology and Neurosurgery, Icahn School of Medicine at Mount Sinai.

Disclosure statement: Sherry H-Y. Chou receives funding from The University of Pittsburgh Clinical Translational Science Institute (CTSI), the National Institute of Health, and the University of Pittsburgh School of Medicine Dean's Faculty Advancement Award. Sherry H-Y. Chou is a member of Board of Directors for the Neurocritical Care Society. Neha S. Dangayach receives funding from the Bee Foundation, the Friedman Brain Institute, the Neurocritical Care Society, InCHIP-UConn Center for mHealth and Social Media Seed Grant. She is faculty for emcrit.org and for AiSinai. Aarti Sarwal does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Reposted with permission from The Conversation.


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In a series of tweets Wednesday night, Ocasio-Cortez—the lead sponsor of the House Green New Deal resolution—noted that the Climate Task Force "shaved 15 years off Biden's previous target for 100% clean energy."

"Of course, like in any collaborative effort, there are areas of negotiation and compromise," said the New York Democrat. "But I do believe that the Climate Task Force effort meaningfully and substantively improved Biden's positions."

 

The 110 pages of policy recommendations from the six eight-person Unity Task Forces on education, the economy, criminal justice, immigration, climate change, and healthcare are aimed at shaping negotiations over the 2020 Democratic platform at the party's convention next month.

Sanders said that while the "end result isn't what I or my supporters would've written alone, the task forces have created a good policy blueprint that will move this country in a much-needed progressive direction and substantially improve the lives of working families throughout our country."

"I look forward to working with Vice President Biden to help him win this campaign," the Vermont senator added, "and to move this country forward toward economic, racial, social, and environmental justice."

Biden, for his part, applauded the task forces "for helping build a bold, transformative platform for our party and for our country."

"I am deeply grateful to Bernie Sanders for working with us to unite our party and deliver real, lasting change for generations to come," said the former vice president.

On the life-or-death matter of reforming America's dysfunctional private health insurance system—a subject on which Sanders and Biden clashed repeatedly throughout the Democratic primary process—the Unity Task Force affirmed healthcare as "a right" but did not embrace Medicare for All, the signature policy plank of the Vermont senator's presidential bid.

Instead, the panel recommended building on the Affordable Care Act by establishing a public option, investing in community health centers, and lowering prescription drug costs by allowing the federal government to negotiate prices. The task force also endorsed making all Covid-19 testing, treatments, and potential vaccines free and expanding Medicaid for the duration of the pandemic.

"It has always been a crisis that tens of millions of Americans have no or inadequate health insurance—but in a pandemic, it's potentially catastrophic for public health," the task force wrote.

Dr. Abdul El-Sayed, a former Michigan gubernatorial candidate and Sanders-appointed member of the Healthcare Task Force, said that despite major disagreements, the panel "came to recommendations that will yield one of the most progressive Democratic campaign platforms in history—though we have further yet to go."

 

Observers and advocacy groups also applauded the Unity Task Forces for recommending the creation of a postal banking system, endorsing a ban on for-profit charter schools, ending the use of private prisons, and imposing a 100-day moratorium on deportations "while conducting a full-scale study on current practices to develop recommendations for transforming enforcement policies and practices at ICE and CBP."

Marisa Franco, director of immigrant rights group Mijente, said in a statement that "going into these task force negotiations, we knew we were going to have to push Biden past his comfort zone, both to reconcile with past offenses and to carve a new path forward."

"That is exactly what we did, unapologetically," said Franco, a member of the Immigration Task Force. "For years, Mijente, along with the broader immigrant rights movement, has fought to reshape the narrative around immigration towards racial justice and to focus these very demands. We expect Biden and the Democratic Party to implement them in their entirety."

"There is no going back," Franco added. "Not an inch, not a step. We must only move forward from here."

Reposted with permission from Common Dreams.