Four More Years!

Okay . . . it's actually only three more years.

Thank you, fellow members of the Hanover Consumer Cooperative Society, for electing me to a third three-year term on the Board of Directors. I am pleased to join three new Board members -- Corrie Martin, Paul Hoffman and Janet St. Germain -- as this year's elected slate.

Here are some random ideas for the coming year:

Developing a member loan program that is targeted to making investments in "greening" the Co-op. We can avoid any tortuous securities registration requirements, and yet still seek loans in both New Hampshire and Vermont, by creating a program through the Cooperative Fund of New England (on whose board I also serve).

Building an active and synergistic partnership with the Upper Valley Community Credit Union, which was founded years ago at the Hanover Co-op.

Working on making the Co-op our community's version of the ancient Greek agora -- a marketplace not just of stuff but of ideas and connections. I'm talking not just about people hanging out at the stores and taking courses, but also people connecting via the Co-op's newsletter and web site.

Figuring out a meaningful way to serve the non-wealthy among the Co-op's membership, particularly in challenging economic times.

Exploring what other slices of our local economy would benefit from cooperatization -- and then actively assisting in making it happen.

Creating cross-sectoral solidarity among New Hampshire cooperatives, and then making sure that cooperatives get on the economic development agendae of the governors in both Concord and Montpelier. After all, the cooperative sector is our battered economy's secret success story!

Helping the folks in Lyme to create a co-op in order to keep their country store open.

What are your ideas? What really cool things would you like to see the nation's second oldest, and second biggest, cooperative grocery retailer accomplish for our community in the coming months and years?

Hardwick Hates Renewable Energy??

No town in northern New England has managed to associate itself with enlightened public policy recent than Hardwick, Vermont. See the web site of the Hardwick- based Center for an Agricultural Economy for news of the successful efforts there to build local food systems that operate as a viable alternative to race-to-the-bottom globalization and factory food production. (We may, by the way, have such production to thank for the emerging swine flu epidemic, since the virus seems to have emerged from a facility in Mexico that houses a million pigs for slaughter.)

So, it's a bit surprising to read this apparently antedulivian letter from the chair of Hardwick's municipal electric utility (which also serves all or part of Greensboro, Craftsbury, Woodbury, Wolcott, East Calais, Elmore, Hyde Park, Eden, Stannard and Walden) in today's Barre-Montpelier Times Argus:

In order to meet their promised closure date of May 8, the Vermont House of Representatives has rushed their vote in favor of bill H.446. As a consequence, the bill, while commendable, is flawed. The bill proposes to require that all Vermont utilities, including Hardwick Electric, will have to pay SPEED qualified renewable energy generation facilities "above rate" prices for the electricity they produce.

Specifically, Hardwick Electric will be required to pay its share of a statewide allocation for power produced by methane, residential wind power, and solar powered systems higher than normal prices for the electricity they produced. Per kilowatt hour, we will have to pay $0.12 for methane systems, $0.20 for wind power systems and $0.30 for solar powered systems. Currently, Hardwick Electric can buy electricity on the open market for around $0.06 or $0.07 per kilo-watt hour.

This bill is flawed. Why? Only the more wealthy Vermont residents will be able to afford to invest in these residential renewable energy systems.

Along with all of the other municipal utilities, Hardwick Electric is a non-profit entity. To get the extra money that will be required to pay the above market rates, we will eventually have to raise the residential electricity rates. Those local residents or businesses who have built their own renewable energy systems will be essentially unaffected by these raised rates, since the rates at which they will be paid is fixed by law and they will be providing their own electricity needs. Those ratepayers who cannot afford to build such systems will have to bear the higher electrical rates.

What does this mean? Effectively we will be transferring the cost of maintaining Vermont's, including Hardwick Electric's system to the "poorer" rate payers. Those local residents with a wind turbine or solar panels will be letting their next-door neighbors pay an extra or nickel, dime or so for each kilowatt hour of electricity their renewable energy system produces.

While I like the idea of encouraging those who can afford it to invest in the renewable energy, we should not do this by penalizing only those who cannot afford to invest. Bill H.446 needs to be rewritten with a fairer funding source for the required above rate prices. I believe the Legislature is moving too fast and as a consequence is making mistakes. They can do better.

Joe Wood

Hardwick Electric Commissioner

Woodbury

This is a troubling letter, both for what it says and what it does not say.

Mr. Wood's complaint boils down to a lament that is familiar whenever there is discussion of a proposal that would encourage the development of renewable power. The only way to encourage activities (as opposed to mandating them) is to subsidize them economically -- that's just as true for private-sector development of renewable energy capacity as it is for home ownership. And when we subsidize renewable energy facilities, the only possible source of these subsidies is either (1) taxpayers, or (2) electric customers -- which, of course, are really the same groups, i.e., everybody -- whether rich or poor.

One implication in Mr. Wood's letter is correct: Historically, this has meant money flowing from relatively impoverished ratepayers to wealthier people who have the resources and sophistication to invest in renewable energy facilities, either directly or indirectly. But, ultimately, the only thing that is impoverished here is the thinking. What's to stop municipal electric utilities like Hardwick's from investing in renewable energy and thus receiving the subsidies that H.446 would authorize? The Washington Electric Cooperative has invested in a landfill gas facility, for example; its member-customers are receiving the benefit of renewable energy credits sold to utilities in Massachusetts.

Mr. Wood mentions that his municipal utility can buy power at wholesale for as little as 6 cents per kilowatt-hour -- but he omits any mention of where that power would come from. The cheapest power available for wholesale purchase in New England comes from coal and nuclear plants. The Hardwick commissioner doesn't mention where his utility is currently getting its power. I have no idea myself, but his letter and his argument would be stronger if it included references to how the Hardwick Electric Department is already investing in renewable power without the mechanisms authorized by the bill he opposes.

Meanwhile, we can do as Governor Douglas proposes and wait for the renewable energy free lunch. Or we can be responsible about energy, and climate change, by acknowledging that every Vermonter will have to help bear the cost of developing the electricity sources that will allow us to continue to live in relative prosperity without making the planet inhospitable to future generations.

[Note to the meticulous: The photo at the beginning of the post isn't Hardwick -- it's Craftsbury.]

Two States, Same Energy Dilemma

[from the CV Spectator of May 1, 2009]

What a remarkable spring it is in the region’s two state capitals, where the same subject has roiled each legislature. At issue have been the most fundamental questions about our shared values.

No, I am not referring to same-gender marriage. I am talking about energy.

In Vermont, the question is whether to sign up for another 20 years of dependence on an aging nuclear plant – Vermont Yankee in Vernon -- with all of the potentially dire consequences related to radioactive waste.

In New Hampshire, the question is whether to sign up for another 20 years of dependence on an aging coal plant – Merrimack Station in Bow -- with all of the potentially dire consequences related to climate change.

Each plant is a relatively inexpensive source of baseload power. They are essentially on all the time, helping utilities avoid turning to the region’s volatile wholesale energy markets to keep the lights on.

Your electric bill is lower as a result.

But if you are like many Vermonters, you favor not allowing Vermont Yankee’s owners, the big Louisiana-based nuclear power company Entergy, to renew the plant’s federal operating license for another 20 years when it expires in 2012.

This raises formidable legal issues. It is anything but clear that a state can shut down a nuclear plant subject to relicensing under federal law. Lots of Vermonters died on Civil War battlefields to defend federal supremacy.

Moreover, Entergy purchased Vermont Yankee in 2002 pursuant to the terms of a “memorandum of understanding” with the state’s electric utilities, and the state itself, that explicitly gave the Vermont Public Service Board the opportunity to decide whether the plant should operate beyond 2012.

Now the Legislature also claims a right to veto Vermont Yankee’s continued operation. But that “memorandum of understanding” looks a lot like a contract – and Entergy is lawyering up to argue it contractual rights are being violated.

Interestingly, nobody is talking about nuclear power in New Hampshire. Once upon a time, the mere mention of the word “Seabrook” would trigger spasmodic responses in both opponents and proponents of nuclear energy in the Granite State.

Today, Seabrook Station quietly chugs along at 1,200 megawatts (twice the output of Vermont Yankee) for its owners at Florida Power & Light. They bought the place in 2002, but not before the project made Public Service Company of New Hampshire (PSNH) the first electric utility to go bankrupt since the Great Depression.

Now, PSNH claims it has specific authority from New Hampshire’s Legislature to spend nearly a half billion dollars to retrofit its coal plant in Bow to meet required reductions in toxic mercury emissions.

PSNH also thinks it has a bankruptcy-avoiding guarantee that it can recover the cost of the project from its customers. That would have the effect of keeping the plant on line for at least the next 20 years.

Atmospheric carbon dioxide has recently been measured at 385 parts per million. Speaking at Dartmouth in April, renowned NASA climatologist James Hansen said this needs to reduce quickly to 350 parts per million, at the most, to avoid major climate change.

“Practically, that indicts coal,” said Hansen. So they’re lawyering up in New Hampshire as well, hoping to shut down Merrimack Station and spend the half billion elsewhere.

While the lawyers are lawyering, people in both Vermont and New Hampshire should start figuring out how they will replace the power they would lose by shutting down Vermont Yankee and Merrimack Station. Altogether, it’s nearly 1,100 megawatts.

A concrete step for Vermonters: Tell Governor Douglas not to veto the Vermont Energy Act of 2009 when it reaches his desk. Douglas celebrated Earth Day by proclaiming his love of renewable energy, but only if it doesn’t increase anyone’s electric bills.

Governor Freelunch is correct. The Vermont bill modestly subsidizes new renewable energy facilities at ratepayer expense. But the nation’s ratepayers have been providing multi-billion dollar subsidies, both hidden and overt, to nuclear and coal plants for decades.

On both sides of the Connecticut River, our forbears bequeathed us ultra-toxic radioactive waste and a climate at the tipping point, on the verge of chaos. Are we willing to pay the price of revoking such an unconscionable legacy?

An inconvenient truth about the NH PUC

[From the Concord Monitor of April 20, 2009]

Chelsea Conaboy's article about the work and mission of the Public Utilities Commission ("What's the role of the PUC?" Sunday Monitor front page, April 12) was so good that I handed it out to my energy regulation class at Vermont Law School. My students' reaction might be of interest to readers who care about energy policy.

With laudable accuracy and contextual sensitivity, Conaboy quoted me as expressing concern about the Legislature's unwillingness to delegate much policy discretion to the PUC. The next three people quoted in the article - a lawyer with energy clients, a former PUC chairman with business before the agency and the PUC's executive director - all disagreed, suggesting that the Legislature should make policy and the PUC should be deferential.

This made the cynics in my class chuckle. They noticed that the only person who was willing to say the PUC should have more energy policy authority and the Legislature should keep less of it was the guy who left his job as the PUC's general counsel and now ponders New Hampshire's energy issues from a safe distance in a neighboring state.

Still, the skeptics among your readers might conclude that this whole question of agency discretion is best left to policy wonks and law professors. The skeptics are wrong.

Electric mess

In 1996, the Legislature adopted the Electric Utility Restructuring Act. This could have been a one-paragraph statute instructing the PUC to find the best way to cause the state's electric utilities to divest their generation facilities and open their service territories to competition among energy suppliers.

Instead, the Legislature adopted nearly 2,000 words of instructions for the PUC, most of it under the heading of "interdependent policy principles." What result? The PUC gamely developed a restructuring plan as directed, issuing it on the specific deadline laid down by the Legislature, a Friday in February 1997. By the following Monday, the electric utilities had filed a federal lawsuit and obtained an injunction to block restructuring. The lawsuit took more than four years to untangle, and restructuring did not happen until May 2001.

Restructuring has failed. Only a few big industrial customers have opted for competitive suppliers. Residential customers have no choices available to them. No evidence suggests restructuring reduced rates. And, in response to the restructuring fiasco that triggered rolling blackouts and market manipulation in California, the Legislature intervened again with even more specific directives to the PUC, this time requiring PSNH to hold on to its non-nuclear generation facilities. This has left PSNH in a kind of restructuring limbo.

The PUC has more time, more energy expertise and more political independence than the Legislature. Would restructuring have played out differently, and more successfully, had the details been left to the agency? We'll never know.

Bow scrubber fight

Meanwhile, as Conaboy reported, the Legislature's tight reins led the PUC to conclude it lacked the authority to do anything when the price tag of PSNH's Merrimack Station scrubber project unexpectedly doubled to nearly a half billion dollars. The Legislature could have issued a general directive to the PUC to reduce mercury emissions at the coal plant in Bow.

Instead, lawmakers issued another long list of detailed findings and instructions.

The result: no debate before the PUC about whether the scrubber project is still the best way to reduce mercury emissions or whether coal power is a good future for New Hampshire in light of climate change. Instead, the New Hampshire Supreme Court will consider precisely how parsimonious the Legislature has been in delegating authority to the PUC.

After I laid out these views for my students, a particularly astute one asked a question. Would I be making this argument about the PUC's too-limited authority if I were still the general counsel of the PUC?

"Absolutely not," I replied candidly. Publicly criticizing the New Hampshire Legislature can only be practiced safely from outside the state.

The kind of Dad my kids got . . .

Calvin: Dad, how come old photographs are always black and white? Didn't they have color film back then?

Dad: Sure they did. In fact, those old photographs are in color. It's just the world was black and white then.

Calvin: Really?

Dad: Yep. The world didn't turn color until sometime in the 1930s, and it was pretty grainy color for a while, too.

Calvin: That's really weird.

Dad: Well, truth is stranger than fiction.

Calvin: But then why are old paintings in color?! If their world was black and white, wouldn't artists have painted it that way?

Dad: Not necessarily. A lot of great artists were insane.

Calvin: But... but how could they have painted in color anyway? Wouldn't their paints have been shades of gray back then?

Dad: Of course, but they turned colors like everything else did in the '30s.

Calvin: So why didn't old black and white photos turn color too?

Dad: Because they were color pictures of black and white, remember?

Calvin: The world is a complicated place, Hobbes.

Hobbes: Whenever it seem that way, I take a nap in a tree and wait for dinner.

A great way to start the week

A vignette from my visit Monday morning to College Cleaners, on the premises of the Lebanon Co-op Food Store:

Me (to nice young woman behind counter with very flushed-looking cheeks): Hi, how are you?

She: You don't want to know.

Me: Really? Why?

She: I should really be at the hospital.

Me: Seriously? How come?

She: Well, I'm in so much pain that my eyes are crossing, and I am expecting.

Turns out she was 14 weeks pregnant and in dire pain. I told her to close the store immediately and proceed directly to Dartmouth Hitchcock Medical Center, a two-minute ride away. She said that Pat, the woman who usually works there, got fired last week for refusing to stay past the end of her shift. (Apparently the next person didn't show up.) She said she would call the boss and tell her to find a replacement -- adding that she already has a five-year-old (implying that risking a miscarriage was better than losing her job).

When I got to my office around 45 minutes later, I called to see if the employee was still there. She was.

I don't know how it turned out -- in the end, both I and the folks I contacted at the Co-op did not want to get involved lest the cleaners fire the employee for complaining to a customer. I can promise, though, that if I find out the poor woman had a miscarriage -- or suffered any adverse work consequences -- the resulting publicity will be very unpleasant for the business in question.

A Sweet Tort Claim

[from the CV Spectator of 4/1/2009]

It takes two hands to play bass, guitar or piano – and Diana Levine of Marshfield, Vermont had been playing those instruments, making a living as a musician for more than 30 years, when she came down with a severe migraine in April 2000. She headed for her local health clinic, where a physician assistant gave her two drugs – Demerol for pain and Phenergan for nausea.

Wyeth Pharmaceuticals – one of the world’s biggest drug companies – had been producing Phenergan since the 1950s. The drug is intended for injection into the patient’s veins; that’s why it’s called an IV (intravenous) medication. But if Phenergan gets into one of the patient’s arteries, it can cause irreversible gangrene. The drug carries a label, approved by the federal Food and Drug Administration (FDA), warning of this danger and explaining how to avoid it.

Who, as between Levine and Wyeth, should have borne the risk on that day in 2000 that the physician assistant would not get the message that Wyeth intended to communicate? Levine lost her right hand and forearm to gangrene. Was that her responsibility – or Wyeth’s?

It took nearly nine years – and a lawsuit that progressed through the Vermont court system to the U.S. Supreme Court – for Levine to get her answer. Wyeth is responsible. The pharmaceuticals giant could not hide behind the FDA’s approval of the warning label, ruled Associate Justice John Paul Stevens in last month’s 6-3 Wyeth v. Levine decision.

Think of it as a vindication of democracy. You don’t have to be a cynic to conclude that the FDA – and the Congress which oversees the FDA – tend to be dominated by industry. But jurors are just regular folks who do not depend on connections or campaign contributions for their power. Much of the clamor for “tort reform,” and all of the vilification of “trial lawyers,” reduces to the notion that average citizens, as distinct from politicians and experts, shouldn’t be trusted to decide where justice lies between one big company and one little citizen.

Another angle concerns the legal principle upon which the Supreme Court actually ruled – the Supremacy Clause of the U.S. Constitution. The Constitution makes federal law – including the statute that created the FDA – the “supreme law of the land” that trumps anything inconsistent in Vermont law or the law of any other state. The Levine decision may be a sign that the Court is changing course and becoming less inclined to invalidate state law by invoking federal supremacy. This is of special interest to Vermont, which is pondering whether to order Vermont Yankee to shut down when its federal license expires.

Still another view of the Levine case is the apoplectic one adopted by Justice Samuel Alito in his dissent. Alito blames the physician assistant and the doctor who supervised her. He mentioned both by name – information missing from the majority opinion – and pointed out that each reached an out-of-court settlement with Levine, apologized, and then testified on her behalf in her litigation against the drug company. According to Alito, although this may have been an “ideal medical-malpractice case,” it should not have been allowed to become a “frontal assault on the FDA’s regulatory regime for drug labeling.”

What of future patients? The anesthesiologist in the family – I happen to be married to one – reports that Phenergan is the only effective drug for treating major nausea symptoms. She contends that Phenergan can be administered safely, even using the “push” (as distinct from the “drip”) IV method used on Levine. But if providers grow skittish about administering Phenergan, based on the publicity surrounding the Levine case, then seriously nauseated patients will simply have to suffer – or, perhaps, pay a lot more money for the medication.

Tort cases like Wyeth v. Levine pack emotional power. But they ultimately serve civilization as a system for allocating risk among the various participants in a particular convergence of human beings – in this instance, a patient, her caregivers and the owners of a multinational drug company. Here the system allocated none of the risk to Diana Levine – and her entitlement to full compensation from all of the remaining participants for the permanent loss of her arm has the sweet ring of justice.

Seasons Greetings!

[From the CV Spectator of 4/16/2009]

This week marks an annual milestone – April 15 – that is truly worth celebrating. In fact, it should be a national holiday.

Over the years, it has become popular at all points along the political spectrum to lament the deadline for submitting federal and state tax returns as a day of infamy. But, as President Obama said in his inaugural address, “the time has come to set aside childish things.”

Among these childish things is the notion, common among pacifists, that the federal income tax is a useful mechanism for expressing outrage over the horrors of war.

Only a handful of folks express that outrage by refusing to pay some or all of their income taxes on the ground that they support the Pentagon. But these people tend to be held up as heroes in places like the Hanover Monthly Meeting of the Religious Society of Friends (a/k/a the Quakers) , of which I happen to be a member.

An earnest-looking woman arose in Hanover Monthly Meeting one day to proclaim herself a tax resister and to express delight over sitting, for once, among people who understood and agreed with her. Not wanting to ruin her day, or mine, I said nothing.

On a more mean-spirited day, I would have upbraided her for her exquisite self-indulgence. It is probably comforting for a pacifist – perhaps even worth the extraordinary hassle – to know that none of one’s dollars are supporting armaments or armies.

The problem is that this behavior does absolutely nothing to make the world any more peaceful. In fact, it likely has the opposite effect, by engendering hostility among those who pay their taxes because they believe, as Oliver Wendell Holmes famously observed, that in so doing they are buying civilization.

Imagine if every shareholder of Exxon-Mobil had decided this year to withhold their federal taxes on the ground that a big and growing portion of this levy goes to support efforts to combat climate change.

The shareholders might observe that they simply don’t believe in climate change. Pick your vice president: Al Gore is to these misguided people as Dick Cheney is to pacifists.

The “drill baby, drill” crowd could couch its position in religious terms, arguing that God called them to exercise dominion over Earth’s resources by extracting and then using as much oil as possible. Though ludicrous, such assertions cannot be conclusively disproven.

Somewhat more plausibly, those with moral stances against stem cell research or sexuality education or aid to Israel could insist that, like the pacifist at Hanover Monthly Meeting, they have the right to withhold their federal taxes for reasons of principle.

Assuming a willingness among these social conservatives to endure the penalties, pacifists and other liberals would have no countervailing argument because they venerate those among their own group who indulge in the exact same behavior.

Ironically, this very point underlies the Peace Testimony of the Religious Society of Friends, as formulated in 1660 by the earliest Quaker, George Fox.

In this fabled communication to King Charles II, Fox said that Friends “deny all outward wars and strife” because their spiritual guide “is not changeable, so as once to command us from a thing as evil and again to move unto it.” If war is always bad, then tax resistance cannot sometimes be bad and sometimes good.

This is not to decry pacifism, or to excuse the violence and horror of war. My point is that the cause of peace is truly advanced through engagement, both at the macro and micro levels. President Obama should be talking to Iran. Travel should be permitted to Cuba.

And we, each of us, should also be talking to our neighbors – even the ones we don’t like. If the people on my street, and yours, can’t get along then the world truly is condemned to strife and violence.

That’s my message to my friends who stand on the Ledyard Bridge holding peace signs and waving at the passing motorists who, sometimes, give them the finger. What would it take to have an actual conversation with those digit-wielding SUV owners?

And to all, best wishes for further prosperity when next April 15 comes around. Civilization is a good thing; let’s buy more of it.

CF Foundation: Too Tepid on Healthcare Reform?

Centuries ago, Shakespeare railed against pronouncements that were "full of sound and fury, signifying nothing." In that regard, here is what the Cystic Fibrosis Foundation is asking CF families like mine to tell their federal lawmakers as they consider long-overdue reforms to our dysfunctional heathcare system:

As a constituent and someone with a personal connection to cystic fibrosis, I write to ask that you consider the unique needs of people with cystic fibrosis as health care reform becomes a priority in Washington.

Cystic fibrosis affects the lungs and digestive systems, causing a build up of thick, sticky mucus. Thanks to advances in research and new treatments, we have made great strides in our fight against this life-threatening disease. The median age of survival has doubled in the last two decades to 37 years of age today.

While research and advanced therapies have made significant progress in improving the quality and length of life, people with cystic fibrosis depend on specialized care to stay alive and healthy. Cystic fibrosis is a costly disease and people living with it need timely access to high quality care. The disease typically costs around $42,000 per person per year; nine to thirteen times higher than the average health care consumer.

As a part of a reformed health care system, people with cystic fibrosis require a coordinated system of care that prevents gaps in treatment and enhances quality of care. A reformed system must also reduce the burdens of out-of-pocket costs and catastrophic medical expenses that currently prevent access to care for as many as one in four people with cystic fibrosis.
As health care reform takes center stage, I ask that you work to ensure that people with cystic fibrosis get the care they need to help them live longer and healthier lives.

This amounts to a variation on the same old public policy theme: Dear Legislator, please consider my narrow special interest as you consider the bill before you.

What if the CF Foundation asked people like me to write THIS letter:

Dear Senator:

I am writing to share my experiences as a parent of a child with cystic fibrosis because they have so thoroughly demonstrated to me the importance of assuing access to health care for all Americans.

My family has the good fortune to be fully insured when it comes to health care. We see very little of the $42,000 a year that the CF Foundation estimates that one patient's treatment costs.

The CF Foundation also points out that this $42,000 a year buys an ever-growing median survival age for CF patients that is now beyond 37 years, twice what it was 20 years ago. My wife and I earnestly hope our daughter will outlive us, but we're worried.

We are not worried about the ability of CF research to continue to make remarkable advances in drug therapy and other treatments. We're worried about things like Medicaid.

Our daughter's excellent CF care center turns away no patients. And yet the reimbursement the hospital receives from Medicaid, intended to cover the cost of caring for indigent patients, is ridiculously inadequate. As the result, our CF Center does not have enough money available to make our daughter's health care, and that of the other CF patients who use our center, as good as it can and should be.

Everywhere we look in the healthcare system, we see evidence that the current system, so illogical and unfair, is hampering the quality of care delivered to all. CF patients, because they require so much health care to stay healthy, are the proverbial caged canaries in the coal mines -- they will be among the first sufferers as our healthcare system deteriorates, but they will not be the last.

Accordingly, I strongly urge you to adopt an aggressive program of healthcare reform that is calculated to provide access to all.

Vote for ME!

Loyal Readers:

The great secret success story of the U.S. and world economies is the cooperative movement. Born in the midst of the depredations of the Industrial Revolution in England, cooperation has outlasted all of the "isms" spawned by that particular era. Today, more Americans belong to a cooperative (if you include credit unions) than own shares in publicly traded stock corporations. Cooperatives wired up the 70 percent of the continental U.S. that investor-owned electric utilities wouldn't touch. Collectively, Vermont's food co-ops comprise the 25th biggest employer in the state. In my respectful opinion, though everyone talks about corporate social responsibility and socially responsible investing, member-owners of coops are the only ones truly living these ideals.

So . . . I am running for a third term on the board of the Hanover Consumer Cooperative Society, the oldest and second biggest co-op in the National Cooperative Grocers Association. In my judgment, although the Hanover Co-op is a powerful force for good in our community there remains vast untapped potential both for our co-op and for cooperation in general. But it takes a long time for a volunteer board member to develop the expertise and connections to make a difference in that regard.

The election is now in progress -- ballots must be received by the Co-op by Wednesday April 30. If you are a member of the Hanover Consumer Cooperative Society, please vote. You don't have to have the ballot that came with the annual report that was mailed a few weeks ago. All you need is your member number -- and even if you don't have that, the service desk can look it up for you. Voting by mail is allowed -- and you can always vote at one of the Co-op's three stores. Here is a link to a printable ballot and information about all of the candidates.

Thanks!

The Morals of the Marketplace . . .

“A trustee is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.” So wrote Judge Benjamin N. Cardozo in Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 547 (1928). Or, as Ben & Jerry’s said in the 1980s, “What’s the Doughboy Afraid Of?”

The Doughboy in this instance is not Pillsbury (the owners of Haagen Dazs and the folks who once tried to intimidate supermarkets into not selling Ben & Jerry’s) but the Golub Corporation, owners of the Price Chopper supermarkets. Long ensconced on the Route 12A shopping strip in West Lebanon, Price Chopper recently took over the old P&C supermarket on Lebanon’s Miracle Mile – a good deal closer to the Lebanon store of the Hanover Consumer Cooperative Society.

The co-op, of course, is owned by the community and thus committed to transparency about its business success. The folks who run and govern the co-op (myself among them, since I am a board member) are trustees – and, as Judge Cardozo noted, held to something stricter than the morals of the marketplace.

Not so with the folks who run Price Chopper, as suggested by this recent dispatch (below) from the Co-op’s employee newsletter. Though Pillsbury’s was arguably violating the law by trying to keep Ben & Jerry’s from being widely available, here there is no question of illegality. But it would be my respectful suggestion that this kind of devious conduct is precisely why co-ops are better than investor-owned businesses in providing people with vital goods like food.

And, just like Ben & Jerry's blew the whistle on the Doughboy, maybe everyone should know about what Price Chopper has been up to.

You should be aware of frequent attempts by persons outside the Co-op to learn our weekly sales figures. We have learned of at least 6 phone calls from outside of the Co-op from persons seeking to learn our weekly sales figures. THIS IS CONFIDENTIAL INFORMATION.

Calls have been received at the Hanover Service Desk, [the Co-op's back office at] Chiron Springs, and recently, directly to [General Manager] Terry Appleby. While we don’t have many details, the pattern of the calls is clear. Most of the phone calls have come from persons stating that they are members or other cooperators. They will often say something like we love your store, we’re just wondering what the weekly sales are. The co-op where we used to live would give all members this information weekly. The caller(s) tend to get a little pushy when our staff has told them we are not going to share that information with them. On more than one occasion, staff at the Hanover Service Desk has noticed that the Caller I.D. on our phone system listed a Golub Corp. as the source of the call.

That is exactly what Terry Appleby noticed on the call he received. Here are details that Terry shared to alert members of Management Team:

Just got off the phone with a guy who was representing himself as “a student and a member of the Honest Weight Food Co-op in Albany” named Josh. Josh said that he had been in our stores and they were awesome, and he wanted some information on the square footage and weekly sales and things like that.

As it happened, when I answered the phone I noticed the call was coming from the Golub Corp. The Golub Corporation is the parent of Price Chopper Supermarkets. I asked Josh why he wanted this info and he said he was a member of the co-op and that they were doing an expansion and they needed info, etc. He also mentioned something about the Sage Graduate School and the work he was doing for a class there.

I told Josh I noticed he was calling from the Golub Corp and wondered if he wasn’t an employee of Price Chopper, which he admitted he was, but that was only his job and he was calling for the co-op. I then asked him to give me his full name, which he refused to do. I then told him we often share information with other co-ops but that I would not be sharing info with him, and he got kind of offended that I was being combative with him.

I then called Cindee Lolik, the manager of Honest Weight to see if she had anyone named Josh working on her expansion committee. Guess what, they don’t. So, it seems that Price Chopper is getting very interested in what is going on at the Co-op. They ought to learn not to call from headquarters when they want information.

Marriage for All

From today's NY Times, regarding the Vermont Legislature's decision to override the governor's veto and make marriage legal in Vermont for all couples who desire the state's marital imprimatur:

“It’s a great day for equality,” said State Representative Margaret Cheney, a Democrat from Norwich. “People saw this as an equality issue, and we’re proud that Vermont has led the way without a court order to provide equal benefits.”

It is great to see one's own legislator quoted in a national newspaper, on the right side of one of the century's great issues. I thank all of my legislators (Reps. Cheney and Masland; Senators Campbell, McCormack and Nitka) for their votes in favor of the veto override.

As an elected Justice of the Peace, I am delighted at the prospect of exercising my authority to join in matrimony any couple that acquires the requisite license.

It's time to make the Baker plaintiffs whole!

In A Different Take on Gay Marriage, the always thoughtful and articulate Watt Alexander makes a persuasive argument that unwelcome social backlash is a likely result of the current effort in Vermont to replace civil unions with marriage for same-gender couples. But I nevertheless hope that the legislators who represent our town (Norwich) vote to override the promised veto of this bill by Governor Douglas.

Watt's argument (which you should read for yourself rather than rely on my characterization of it) makes the compelling point that the real business of government, at least insofar as the intimate relationships of its citizens are concerned, is allocating and recognizing rights and privileges -- accomplished by civil unions -- rather than legislating social acceptance -- i.e., marriage. I respectfully disagree.

As I heard Senate President Peter Shumlin point out the other day, the vociferous opposition to the gay marriage bill refutes the argument that the state has no business recharacterizing the civil union as marriage. Words matter. Even a casual breeze through the Vermont Constitution, and the Vermont Statutes Annotated, would reveal that much in those documents is aspirational in character, expressing shared values at least as much as crisp allocation of rights and responsibilities.

Moreover, we have always used our organs of government as an important forum for resolving issues of social acceptance. Watt knows this, a recent example being the concerns he publicly expressed when one of our neighbors rose at Town Meeting to issue a threat to those whose political speech (communicated via roadside signs) transgressed his notions of civility.

It would be kind of cool if we could resolve this civil union vs. marriage thing at town meeting. But, for better or worse, marriage as a legal construct is a question consigned to state rather than local government.

On March 15, 1965, President Lyndon B. Johnson went before Congress to urge passage of what became the Civil Rights Act of 1965. The world has little noted the actual words in the Act, but what Johnson, a man with deep roots in the racist south of the early 20th Century, said that night has echoed through time:

"But even if we pass this bill the battle will not be over. What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. Their cause must be our cause too. Because it's not just Negroes, but really it's all of us, who must overcome the crippling legacy of bigotry and injustice. And we shall overcome."

Words matter. Johnson could have said "we shall not discriminate," which would have, perhaps, been a more precise and accurate characterization of the actual effect of the legislation he was advocating. But when he said "we shall overcome," it struck like a national lightning bolt. And today, a biracial man with African ancestors has the job that a reformed bigot from Texas once occupied.

I myself eschew making direct comparisons between the struggle for racial justice and the struggle for recognition of love and commitment between two people of the same gender. The reality is that sexual orientation is not directly analogous to race. I respect the fact that people who are fully committed to racial equality have more trouble with same-gender relationships because, to state the obvious, the latter is all about sex. My point is merely that rhetoric, whether written or oral, is not an insignificant thing when we work out in public matters of great personal significance to everyone as individuals.

Watt characterizes same-gender marriage as "a loser nationally," pointing out that more than a few states have amended their constitutions to define marriage explicitly as limited to female-male couples. In my respectful opinion, this is actually an argument for rather than against Vermont adopting the same-gender marriage bill.

If you take federalism seriously -- and I do -- then you celebrate rather than lament diversity among the laws of the several states. I should hope that thoughtful people in the states that amended their constitutions would admit that Vermont is free to experiment with social policies that differ from theirs -- and that it is at least theoretically possible that the Vermont experiment (and those of Connecticut and Massachusetts) might be so successful that some or all of those other states might repeal their amendments.

In other words, civil unions have become an accepted norm in Vermont and same-gender marriage might enjoy the same fate. This could have the effect of making other states downright ashamed about having enshrined mean-spiritedness in their constitutions.

It was my good fortune in 1998 to be in the audience when the Vermont Surpreme Court heard oral argument in the landmark Baker v. State case. As Watt notes, this is the litigation that led to the creation of civil unions.

I remember two things about the oral argument. The first is that the capable attorneys representing the state, despite repeated invitations to do so, could not articulate one rational relationship between the ban on same-gender marriage and some legitimate government purpose. This "rational relationship" test is the least strict, and most deferential, test that courts employ in equal protection cases -- much less stringent than the strict scrutiny to which a race-based distinction would be subject. It was poingnantly obvious that the state could not meet the test.

The second thing I remember is the solemn dignity of Stan Baker, his partner, and the other plaintiffs in the case. I sat right behind them. One could see, in their faces and in their bearing, the joy in their hearts as they finally had their day in that ornate courtroom.

When I was a law student, one of my professors, teaching about contracts rather than the constitution, said that peoople with legal disputes are always asking their lawyers, plaintively: When do I get to tell my story to the judge? Well, the Baker plaintiffs got to tell their story -- and their story was that their exclusion from the rights and privileges of marriage was unsassailably based not in rationality but in irrational revulsion over people of the same gender falling in love with each other. Imagine that.

People who like reading original source material might take a moment to peruse the dissenting opinion in Baker v. State that was written by Justice Denise Johnson. She agreed with the court's legal analysis but then pointed out, emphatically, that it was fundamentally unjust for a court to tell civil rights plaintiffs, in effect: Yes, you've clearly demonstrated discrimination that transgresses the constitution but you will get no relief or remedy here -- go see the Legislature.

You could say that the majority of Johnson's colleagues, who joined the opinion of the court written by Chief Justice Jeffrey Amestoy (a former politician), were shrewd in carving out a pivotal role for elected officials and the political process in resolving the question that the Baker plaintiffs had the courage to pursue. But if you hold to that view, please remember that the phrase "civil union" was mentioned by no one in the Baker litigation -- both the plaintiffs and the state argued about "marriage."

It's time to resolve the argument. Mr. Baker won. It's been ten years. He deserves the relief he requested.

Administration to Put Inmates in Charge of New Federal Prison

By John De Bello
Assocated Press Writer

LITTLETON, New Hampshire (AP) – Attorney General Eric Holder plans to travel to this remote New Hampshire village next month to launch what the Obama Administration is calling the boldest prison reform experiment in nearly two centuries: a correctional facility that is not just run by its inmates but is actually owned by them.

Holder will join local officials here in officially opening the $457 million Meldrim Thompson Cooperative Correctional Facility, a federal prison that will house 300 inmates under terms of incarceration that even the project’s proponents concede are without precedent in the history of punishment.“It came to me in a blinding flash of insight, while shopping at my local food co-op,” explained J. Stephen Peace, the Justice Department’s newly appointed director of the Bureau of Prisons. “Wouldn’t inmates behave better, and actually build a sense of community behind the prison walls, if they owned the facility and if it existed to serve them instead of oppress them?”

Rather than have a warden appointed by the Bureau of Prisons, the Thompson Correctional Co-op will have a general manager who is appointed by the inmates themselves, through an elected board of directors. To become a resident of the facility, an inmate would have to make an equity investment of $3,500 – after getting the approval of his or her sentencing judge and probation officer. It will, however, still be a prison.

The inmates on the board will have the right to hire, supervise and fire the general manager, but the by-laws of the cooperative prison specify that it must be run according to the same rules and regulations that govern the rest ofthe federal prison system. Yes, there will be the usual cells, bars, locks and strict behavioral requirements.

“But it will be a democracy – a real democracy,” said Bob Hayes, general manager of the Littleton Consumer Cooperative Society – the town’s new food co-op which will, by coincidence, open not long before the prison does and which will, under an agreement with the Justice Department, have a special relationship with the new federal facility. The Littleton Co-op will provide advice to the Bureau of Prisons on running a cooperative organization and, in return, low-risk federal inmates on work release will stock shelves and work the checkout counter at the food store. Part of the arrangement would allow inmates to borrow the $3,500 prison membership fee from the food co-op and then work off the debt.

“The federal prison system is full of guys who know all about retailing because they were peddling illegal drugs,” said Hayes. “I can’t wait to put all those street smarts to work selling herbal medicines and organic vegetables!”

According to Professor Thomas Nokitofa, director of the Crime and Punishment Institute at St. Mary’s University in Halifax, Nova Scotia, the new correctional facility could be the biggest advance in prison management in the English-speaking world since the modern concept of a penitentiary replaced the traditional, dungeon-like jail in the early19th Century. “Two hundred years ago, prisoners were literally treated like vermin, and people were outraged at first about reform efforts,” said Nokitofa. “Today most of us understand that inmates need rehabilitation – and what could be better calculated to do that than living and working cooperatively?”

The Obama Administration likes the prison co-op idea not just for policy reasons but because it is a rare example in today's economic turmoil of something that will reduce rather than increase the federal deficit. "This has potential implications for vast swaths of the federal goverment," according to Samuel Smith, a press officer with the Office of Management and Budget. "Requiring users of a particular facility to provide the equity to support the infrastructure is a great way to leverage the government's resources."

Still, the plan has its critics – some of them local folks who are not thrilled with such an unusual neighbor.“I’ve heard of inmates running the asylum, but this is ridiculous,”said Wilbur Finletter, a county commissioner and outspoken local Republican whose home will be just a few hundred feet from the newprison. “I don’t think Hannibal Lechter is going to give a damn about‘democratic member control’ or ‘concern for community.’” His quip alludes to two of the seven “cooperative principles,” adopted by the International Cooperative Alliance, that officials say will guide the new cooperative prison.

Gretta Attenbaum, manager of the local Piggly Wiggly supermarket,vowed to file a lawsuit to stop the facility from opening. “Nobody said anything about cooperatives, or driving the local food store out of business, when the Bush Administration showed up and said thiswould help our local economy,” she said. “Now that the socialists are in charge, we are not going to cooperate with their crazy cooperative.If [President] Obama thinks this is such a great idea, he should let the gorillas and monkeys run the National Zoo in Washington.”

Also apoplectic is the Congressional Law and Order Caucus. According to its chairman, Rep. Don Foozman (R-Ark.), the bipartisan caucus will hold a news conference and public protest on the day of Holder's appearance in New Hampshire. The protest is tentatively scheduled to be held outside the U.S. Penitentiary in Florence, Colorado, an ultra-high-security facility where 22 percent of inmates have killed fellow prisoners in other correctional facilities.

The Bureau of Prisons is seemingly unconcerned about the threats and expressions of outrage. According to spokesperson Jim Richardson, aslong as the inmates are locked inside, the Bureau has the authority to set whatever rules – or allow the inmates to set whatever rules – they want within the facility.“We’re confident that once this thing is up and running, everyone will see that a cooperative prison is a real achievement for Littleton and for the nation,” said Richardson.