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$15 per hour minimum wage initiative qualifies for November ballot in Tucson, Arizona

On July 22, 2021, the Tucson City Clerk confirmed that enough signatures were submitted for an initiative backed by Tucson Fight for $15 to qualify for the November 2 ballot.

On July 2, Tucson Fight for $15, the campaign behind a local minimum wage increase, submitted 29,526 raw signatures to the city’s clerk office.

In Tucson, Arizona, petitioners needed to submit 14,826 valid signatures by July 2, 2021, to qualify for the November 2021 ballot. The signature requirement was based on 15% of the votes cast for mayoral candidates in the previous mayoral election. After signatures are certified for an initiative in Tucson, the measure goes before the city council. The city council has two options: approve the initiative, precluding an election, or send the initiative to the ballot.

The initiative would amend the city code to incrementally increase the city’s minimum wage from $12.15 (the state’s minimum wage) to $15 by January 1, 2025, and increase it every January thereafter by the rate of inflation rounded to the nearest multiple of $0.05. The minimum wage would increase by the following increments:

  1. $13 by April 1, 2022,
  2. $13.50 by January 1, 2023,
  3. $14.25 by January 1, 2024, and
  4. $15.00 by January 1, 2025.

The initiative would also establish a Department of Labor Standards by April 1, 2022. The department would be authorized to receive complaints from employees, investigate employers, and educate workers about their rights under the initiative. A violation of the initiative would be a civil infraction with a civil penalty of up to $100 per employee affected by the violation paid to the city. If multiple violations occur, the city may revoke, suspend, or decline to renew any licenses of the employer.

Tucson Fight for $15 filed the initiative on February 27, 2021. Billy Peard, the co-author and co-organizer of Tucson Fight for $15, said, “Tucson’s has one of the fastest-growing rents and housing costs in the country. Tucson is the second poorest city in the southwestern United States, as measured by per capita income. There’s simply no way that a family, or even an individual without children, can pay a one-bedroom apartment these days on the current minimum wage of $12.15.”

Tucson Business Owners Inc. is leading the campaign in opposition to the measure. Carlos Ruiz, owner of HT Metals in Tucson and a member of Tucson Business Owners, said the initiative is more than just about raising the minimum wage to $15. He said, “Interested parties can initiate actions against businesses and if successful those interested parties get 30% of the fines and penalties that are assessed against that business. And the city of Tucson gets 70% of the fines. So there’s an incentive for outside parties becoming activists to go after employers in the city of Tucson.”

In 2016, Arizona passed Proposition 206, which increased the minimum wage to $10 in 2017, and then incrementally to $12 by 2020, and created a right to paid sick time off from employment. It was approved by a margin of 58.33% to 41.67%.



Documenting America’s Path to Recovery #284: July 22, 2021

Welcome to Documenting America’s Path to Recovery. Today we look at:

  • The closure of four mass vaccination sites in New York
  • Updated mask guidance for schools in North Carolina and Virginia
  • Vaccine distribution
  • School closures and reopenings
  • Travel restrictions
  • State proof-of-vaccination requirements and policies
  • Federal responses
  • COVID-19 policy changes from this time last year 

We are committed to keeping you updated on everything from mask requirements to vaccine-related policies. We will keep you abreast of major developments—especially those affecting your daily life. Want to know what we covered Tuesday? Click here.

Upcoming news

What is changing in the next four days?

New York (Democratic trifecta): Gov. Andrew Cuomo (D) announced that mass vaccination sites in Johnson City, Middletown, Queensbury, and Southampton will cease operations on July 26. The closures are part of a planned downscaling of operations first announced on June 18 after the state reported that 70% of adults had received at least one dose of a COVID-19 vaccine.

Virginia (Democratic trifecta): On Wednesday, July 21, the Virginia Department of Health and Education released guidance for the upcoming school year. The K-12 mask mandate, which applies to both public and private schools, expires July 25, at which point local districts will decide their own mask policies. The guidance says schools should require elementary students to wear masks, but that middle and high schools should only require masks for unvaccinated students.

Since our last edition

What rules and restrictions are changing in each state? For a continually updated article, click here.

Missouri (Republican trifecta): On July 21, Gov. Mike Parson (R) launched a vaccine incentive program, MO VIP. Parson said that 900 Missourians who had been vaccinated or who get vaccinated over the next three months will be eligible to receive cash or education savings account prizes worth $10,000. Drawings begin Aug. 13 and will continue every two weeks until Oct. 8.

North Carolina (divided government): On Wednesday, July 21, Gov. Roy Cooper (D) released updated guidance for school districts. The new guidance takes effect July 30, and says districts should require students in kindergarten through eighth grade to wear masks indoors. The guidance says only unvaccinated high school students should be required to wear masks indoors.  

Michigan (divided government): 

  • On Tuesday, July 20, Gov. Gretchen Whitmer (D) vetoed House Bill 4434, which would have ended the state’s participation in federal pandemic unemployment programs. 
  • On Wednesday, July 21, the Michigan House of Representatives voted 60-48 in support of an initiative petition that repeals the Emergency Powers Act of 1945. Gov. Whitmer relied on that act to declare a COVID-19 emergency and issue subsequent restrictions, like the stay-at-home order. The Michigan Supreme Court ruled the act violated the Michigan constitution on Oct. 5, 2020. The state Senate voted to repeal the act on July 15, meaning that Whitmer cannot veto the petition. The initiative will go into effect 90 days after the legislature ends its current session.   

Washington (Democratic trifecta): On Tuesday, July 21, Gov. Jay Inslee (D) repealed two COVID-19 orders. The orders waived deadlines related to judicial protection orders, mandated that agricultural businesses implement a paid leave program for workers, and prohibited deductions for lump sum unemployment payments. 

Vaccine distribution

We last looked at vaccine distribution in the July 20 edition of the newsletter. As of July 22, the states with the highest vaccination rates as a percentage of total population (including children) were:

The states with the lowest rates were:

School closures and reopenings

Read more: School responses to the coronavirus (COVID-19) pandemic during the 2020-2021 academic year

We last looked at school closures and reopenings on July 15. There have been no changes since then.

Nationwide:

  • Two states (Del., Hawaii) and Washington, D.C. had state-ordered regional school closures, required closures for certain grade levels, or allowed hybrid instruction only.

2019-20 enrollment: 410,896 students (0.81% of students nationwide)

  • Thirteen states had state-ordered in-person instruction.

2019-20 enrollment: 15,697,460 students (30.96% of students nationwide)

  • One state (Ariz.) had state-ordered in-person instruction for certain grades.

2019-20 enrollment: 1,152,586 students (2.27% of students nationwide)

  • Thirty-four states left decisions to schools or districts.

2019-20 enrollment: 33,449,499 students (65.96% of students nationwide)

Travel restrictions

Read more: Travel restrictions issued by states in response to the coronavirus (COVID-19) pandemic, 2020

Overview:

  • Since the start of the pandemic, governors or state agencies in 27 states and the District of Columbia issued executive orders placing restrictions on out-of-state visitors. At least 24 of those orders have been rescinded. 
    • Since July 15, no state has ended or changed its travel restrictions.  

State proof-of-vaccination requirements and policies

Read more: State government policies about proof-of-vaccination (vaccine passport) requirements

As COVID-19 vaccination rates have increased, state governments have enacted various rules around the use of proof-of-vaccination requirements. In some cases, lawmakers have banned state or local governments from requiring that people show proof-of-vaccination. Other states have supported the creation of digital applications—sometimes known as vaccine passports—that allow people to prove their vaccination status and, in some cases, bypass COVID-19 restrictions.  

Overview:

  • Twenty states have passed legislation or issued orders prohibiting proof-of-vaccination requirements at some or all levels of government. 
  • Four states have backed the creation of digital vaccination status applications. Those applications allow fully vaccinated individuals to bypass COVID-19 restrictions in some circumstances.

Since July 15, no state has enacted a proof-of-vaccination policy. No state has enacted new digital vaccination status applications. 

Federal responses

Read more: Political responses to the coronavirus (COVID-19) pandemic, 2020

  • On July 20, the U.S. Department of Health and Human Services extended the nationwide COVID-19 public health emergency an additional 90 days.
  • On July 21, the U.S. Department of Homeland Security extended restrictions on nonessential travel to and from Mexico and Canada through August 21.

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic. 

  • On July 20, the Board of County Commissioners in Clark County, Nev., home to Las Vegas, approved an order requiring all employers to mandate masks for employees working in public spaces. Employees in enclosed offices or cubicles are exempted when in those areas, but must wear masks in other public spaces. The order went into effect on July 21 and will run through Aug. 18, the date of the next county commission meeting. Democrats hold all seven seats on the county commission.
  • On July 21, Chicago Mayor Lori Lightfoot (D) announced that five states and one U.S. territory had been placed on the city’s travel restriction list. On July 19, Lightfoot reinstated travel restrictions for unvaccinated people traveling to Chicago from Arkansas and Missouri. Lightfoot added Florida, Louisiana, Nevada, and the U.S. Virgin Islands to the list. An unvaccinated person visiting Chicago from these areas must either quarantine for ten days upon arrival or report a negative COVID-19 test within three days.

This time last year: Wednesday, July 22, Thursday, July 23, and Friday, July 24, 2020

The first case of COVID-19 in the U.S. was confirmed on Jan. 21, 2020. But it wasn’t until March when the novel coronavirus upended life for most Americans. Throughout March and April, many states issued stay-at-home orders, closed schools, restricted travel, and changed election dates. Many of those policies remain in place today. Each week, we’ll look back at some of the defining policy responses of the early coronavirus pandemic.

Here’s what happened this time last year. To see a list of all policy changes in each category, click the links below.

Wednesday, July 22, 2020

  • Travel restrictions:

Ohio Gov. Mike DeWine (R) issued a travel advisory that asked travelers from states reporting positive coronavirus testing rates of 15% or higher to self-quarantine for 14 days. DeWine said the advisory was not a mandate. The advisory affected Alabama, Arizona, Florida, Georgia, Idaho, Mississippi, Nevada, South Carolina, and Texas.

  • Federal government responses:

Pharmaceutical company Pfizer and biotechnology company BioNTech announced that they had entered into a $1.95 billion deal with the U.S. Department of Health and Human Services and the Department of Defense to supply 100 million doses of a coronavirus vaccine to Americans by the end of 2020.

Thursday, July 23, 2020

  • Federal government responses:

Health and Human Services Secretary Alex Azar renewed the federal public health emergency originally issued in late January. The health emergencies last for 90 days.

  • Mask requirements: 

Ohio Gov. Mike DeWine (R) signed an order requiring individuals over the age of 10 to wear face coverings in indoor, non-residential locations and outdoors when unable to practice social distancing.

  • School closures and reopenings:

Arizona Gov. Doug Ducey (R) ordered public schools to reopen for on-site learning on Aug. 17 for students who need somewhere to go during the day. Superintendent Kathy Hoffman clarified that the order meant each school district must open at least one site for students to attend, but did not have to open every school or require every teacher to work in-person.

New Mexico Gov. Michelle Lujan Grisham (D) announced schools will not be able to open for in-person instruction until after September 7. However, after that date, the decision to resume in-person instruction was left up to individual school districts.

Friday, July 24, 2020 

  • Travel restrictions:

The Pennsylvania Department of Health added Wyoming and Missouri to the state’s travel advisory, bringing the total number of states on the list to 20. Travelers from states on the list were advised to quarantine for 14 days upon arrival.

  • Federal government responses:

A federal eviction ban expired. The ban was part of the $2.2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act approved in March. The ban applied only to tenants in federally assisted properties.

  • Mask requirements:

Oregon Gov. Kate Brown (D) updated the statewide mask mandate to include children five years and older. 

  • Lawsuits about state actions and policies:

The U.S. Supreme Court rejected a Nevada church’s request for permission to hold in-person services larger than those allowed under Gov. Steve Sisolak’s (D) executive order. The court split 5-4 in the decision.  

For the most recent coronavirus news, including the latest on vaccines and mask mandates, subscribe to our daily newsletter, Documenting America’s Path to Recovery.



Dartmouth study evaluates tone of Ballotpedia’s COVID-19 coverage

Earlier this year, a team of researchers at Dartmouth developed a method to evaluate the tone of news articles written about Covid-19. Using standard sentiment indicators, the Dartmouth team assessed the text of 42,000 articles from dozens of U.S. and international news sources.

The study found that U.S.-based news sources used significantly more negative language than the international outlets studied. 87% of major U.S. media stories were negative in tone compared to 50% of non-U.S. sources. The international sample included articles from the U.K.’s BBC, Canada’s CBC, and Australia’s ABC; each country’s dominant news source, all publicly owned. The U.S. outlets analyzed in the study are privately owned with more competitors within the country’s borders than the international outlets studied. The political leaning of the outlets made no difference in their usage of negative language.

The Dartmouth research team cross-checked the negative sentiment indicators of articles in the international and U.S. press against the extent of COVID spread in the relevant countries. They found that there was no correlation between the number of COVID cases in a particular country and the extent of negative tone in the country’s news sources.

Ballotpedia submitted several hundred articles from its coverage of Covid-19 to find how it would compare to the articles in the study. The Dartmouth team found Ballotpedia used significantly fewer negative sentiment indicators in its language choices compared to the major U.S. media outletsBallotpedia articles were .92 standard deviations less negative than the average of all other sources analyzed.



Documenting America’s Path to Recovery #284: July 20, 2021

Welcome to Documenting America’s Path to Recovery. Today we look at:

  • The latest decision in an ongoing legal battle over cruise ships in Florida 
  • A court ruling upholding a COVID-19 vaccine requirement at a university in Indiana
  • Vaccine distribution
  • Lawsuits about state actions and policies 
  • State-level mask requirements
  • COVID-19 emergency health orders
  • COVID-19 policy changes from this time last year 

We are committed to keeping you updated on everything from mask requirements to vaccine-related policies. We will keep you abreast of major developments—especially those affecting your daily life. Want to know what we covered Thursday? Click here.

Since our last edition

What rules and restrictions are changing in each state? For a continually updated article, click here.

Florida (Republican trifecta): On Saturday, July 17, the U.S. Court of Appeals for the Eleventh Circuit overturned a lower court order that blocked the Centers for Disease Control and Prevention’s (CDC) restrictions on the cruise industry. Gov. Ron DeSantis (R) sued the CDC in April 2021, arguing the agency overstepped its authority when it issued its four-phase plan for reopening the cruise industry. U.S. District Judge Steven Merryday granted Florida a preliminary injunction against the restrictions on June 18. 

Indiana (Republican trifecta): On Monday, July 19, U.S. District Court for the Northern District of Indiana Judge Damon Leichty upheld the University of Indiana’s vaccination requirement for the fall semester. Eight students sued the University, arguing the requirement to get a COVID-19 vaccine violated their 14th Amendment rights. According to the University policy, students who don’t get vaccinated “can see their class registration cancelled, CrimsonCard access terminated, access to IU systems (Canvas, email, etc.) terminated, and will not be allowed to participate in any on-campus activity.”

Michigan (divided government): On Thursday, July 15, the state Senate voted 20-15 to repeal the Emergency Powers of Governor Act. Gov. Gretchen Whitmer (D) relied on the Act to declare a COVID-19 emergency and issue subsequent restrictions, like the stay-at-home order. If the House approves the initiative, Whitmer would be unable to veto it. If the House doesn’t approve the initiative, it would go on the Nov. 2022 ballot. 

Vaccine distribution

We last looked at vaccine distribution in the July 15 edition of the newsletter. As of July 20, the states with the highest vaccination rates as a percentage of total population (including children) were:

The states with the lowest rates were:

Lawsuits about state actions and policies

Read more: Lawsuits about state actions and policies in response to the coronavirus (COVID-19) pandemic, 2020

Overview:

  • To date, Ballotpedia has tracked 1,830 lawsuits, in 50 states, dealing in some way with the COVID-19 outbreak. Court orders have been issued, or settlements have been reached, in 557 of those lawsuits. 
    • Since July 13, we have added no additional lawsuits to our database, and we have added no additional court orders and/or settlements. 

Details:

  • Norwegian Cruise Line Holdings, Ltd. v. Rivkees: On July 13, Norwegian Cruise Line’s holding company sued Florida’s surgeon general, challenging the state’s ban against businesses asking for proof of COVID-19 vaccination. In the complaint, filed in the U.S. District Court for the Southern District of Florida, the cruise line alleged federal law preempts Florida’s prohibition on proof-of-vaccination requirements. The cruise line also alleged the law is unconstitutional. The cruise line says the law, which imposes fines up to $5,000 per violation against businesses that require proof of vaccination, will force it to be “either on the wrong side of health and safety and the operative federal legal framework, or else on the wrong side of Florida law.” Norwegian says Florida’s law “blocks communications between a business and its customers, in violation of the First Amendment” and violates the due process rights of the company, its employees, and its customers. Norwegian is seeking a preliminary injunction allowing it to resume sailing with its CDC-compliant safety protocols in place and to invalidate the Florida law. The case is assigned to Judge Kathleen M. Williams, an appointee of Barack Obama (D).

State mask requirements

We last looked at face coverings in the July 13 edition of the newsletter. Since then, there have not been any updates.

COVID-19 emergency health orders

Read more: State emergency health orders during the coronavirus (COVID-19) pandemic, 2021

Governors and state agencies in all 50 states issued orders declaring active emergencies in response to the coronavirus pandemic. These orders allowed officials to access resources, like stockpiles of medical goods and equipment, unavailable to them during non-emergencies and temporarily waive or suspend certain rules and regulations. 

Overview: 

  • COVID-19 emergency orders have expired in 25 states. Emergency orders remain active in 25 states.
  • Since July 13, no states have ended their statewide COVID-19 emergencies. 

This time last year: Monday, July 20, and Tuesday, July 21, 2020

The first case of COVID-19 in the U.S. was confirmed on Jan. 21, 2020. But it wasn’t until March when the novel coronavirus upended life for most Americans. Throughout March and April, many states issued stay-at-home orders, closed schools, restricted travel, and changed election dates. Many of those policies remain in place today. Each week, we’ll look back at some of the defining policy responses of the early coronavirus pandemic.

Here’s what happened this time last year. To see a list of all policy changes in each category, click the links below.

Monday, July 20, 2020:

  • Stay-at-home orders and reopening plans:

Washington Gov. Jay Inslee (D) reduced the limit on gatherings in counties in Phase 3 of the state’s reopening plan from 50 people to 10. Inslee also issued a statewide ban on live music, including drive-in concerts and music in restaurants.

  • Travel restrictions:

Connecticut Gov. Ned Lamont (D) announced that all incoming travelers must fill out an online travel health form before arriving. Lamont said visitors could be subject to a $1,000 fine if they fail to fill out the form or quarantine.

Kentucky Gov. Andy Beshear (D) issued a travel advisory requesting that visitors from nine states self-quarantine for 14 days upon arrival. Officials said the advisory was not a requirement. The nine states in the advisory were: Alabama, Arizona, Florida, Georgia, Idaho, Nevada, Mississippi, South Carolina, and Texas.

  • Election changes:

Vermont Secretary of State Jim Condos (D) issued a directive that a mail-in ballot be sent automatically to every active registered voter in the Nov. 3 general election.

United States District Court for the District of Maryland Judge Richard Bennett ordered that the nomination petition signature requirement for unaffiliated candidates in Maryland be reduced by 50 percent.

  • Federal government responses:

President Donald Trump (R) announced that he would resume his daily coronavirus briefings. Trump discontinued the briefings in late April.

  • Mask requirements:

Arkansas Gov. Asa Hutchinson (R) signed an executive order that required individuals to wear masks in public when social distancing was not possible.

  • School closures and reopenings:

The Colorado Department of Education released guidance for reopening public schools for the 2020-2021 school year. The guidelines contained separate criteria for elementary schools and secondary schools, but left decisions about start dates and remote learning to local districts.

  • State court changes:

North Carolina Supreme Court Chief Justice Cheri Beasley extended emergency directives that included the suspension of jury trials for another 30 days.

Tuesday, July 21, 2020

  • Travel restrictions:

Govs. Ned Lamont (D-Conn.), Phil Murphy (D-N.J.), and Andrew Cuomo (D-N.Y.) announced that Alaska, Delaware, Indiana, Maryland, Missouri, Montana, North Dakota, Nebraska, Virginia, and Washington had been added to the joint travel advisory. Travelers from those states were required to quarantine for 14 days upon entering Connecticut, New Jersey, or New York. The governors removed Minnesota from the list, bringing the total to 31 states.

Evictions and foreclosure policies:

Massachusetts Gov. Charlie Baker (R) extended the statewide moratorium on evictions and foreclosures an additional 60 days. The moratorium was set to expire on Oct. 17.



Utilities’ ESG ratings tracked

Economy and Society

ESG Developments This Week

In Washington, D.C., and around the world

Saudi sovereign wealth fund reportedly seeking ESG framework 

In Riyadh, Saudi Arabia, the nation’s sovereign wealth fund reportedly has begun the process of developing ESG reporting standards that will, presumably, allow it to raise greater funds in the global debt market. According to Reuters:

“The Public Investment Fund (PIF) sent a request for proposals to banks last month, said the four sources with direct knowledge of the matter, speaking anonymously because the matter is private.

PIF – at the centre of Saudi de facto ruler and Crown Prince Mohammed bin Salman’s Vision 2030 that aims to wean the economy off oil – has been funding itself in recent years with tens of billions of dollars in loans.

One of the sources said developing an ESG framework was likely a precursor for a multibillion dollar bond sale, which would be the Saudi wealth fund’s first.

Once an ESG framework is developed, PIF may need credit ratings and an audit of its finances before it can issue bonds, the source said, adding the fund could sell bonds in the fourth quarter if “all goes smoothly.””

Reuters notes that the Kingdom’s hand is forced here, both by what is described as “growing awareness among international investors about ESG risks” and the fact that the sovereign fund is “the cornerstone investor in NEOM, a futuristic development in Saudi Arabia whose flagship project is a zero-carbon city.” 

In the States

Utilities’ ESG ratings tracked

On July 12, Visual Capitalist noted that the National Public Utilities Council (NPUC) had put together a series of graphics designed to demonstrate how American Inventor Owned Utilities (IOUs) are performing in terms of various ESG metrics. This report card was designed to measure what metrics the IOUs report, how consistently those metrics are reported across the various companies, and what disclosures could be improved to increase across-the-board comparison:.

“To complete the assessment of U.S. utilities, ESG reports, sustainability plans, and company websites were examined. A metric was considered tracked if it had concrete numbers provided, so vague wording or non-detailed projections weren’t included.

Of the 50 IOU parent companies analyzed, 46 have headquarters in the U.S. while four are foreign-owned, but all are regulated by the states in which they operate.

For a few of the most agreed-upon and regulated measures, U.S. utilities tracked them almost across the board. These included direct scope 1 emissions from generated electricity, the utility’s current fuel mix, and water and waste treatment.

Another commonly reported metric was scope 2 emissions, which include electricity emissions purchased by the utility companies for company consumption. However, a majority of the reporting utilities labeled all purchased electricity emissions as scope 2, even though purchased electricity for downstream consumers are traditionally considered scope 3 or value-chain emissions….

Even putting aside mixed definitions and labeling, there were many inconsistencies and question marks arising from utility ESG reports.

For example, some utilities reported scope 3 emissions as business travel only, without including other value chain emissions. Others included future energy mixes that weren’t separated by fuel and instead grouped into “renewable” and “non-renewable.”

The biggest discrepancies, however, were between what each utility is required to report, as well as what they choose to. That means that metrics like internal energy consumption didn’t need to be reported by the vast majority.

Likewise, some companies didn’t need to report waste generation or emissions because of “minimal hazardous waste generation” that fell under a certain threshold. Other metrics like internal vehicle electrification were only checked if the company decided to make a detailed commitment and unveil its plans.”

Visual Capitalist concluded that “many of these inconsistencies are roadblocks to clear and direct measurements and reduction strategies.” 

On Wall Street and in the private sector

ESG’s effectiveness questioned

On July 13, Bloomberg Green became the latest high-profile media source to feature Tariq Fancy, the former head of sustainable investing for asset-management giant BlackRock, in a profile of former ESG-insiders. Fancy has created quite a stir among financial professionals in the several weeks since he went public with his frustrations and regrets, and it appears that he is not alone:

“Inside the booming world of sustainability, a small but growing cohort of disillusioned veterans are speaking out against efforts by corporations and investors to address an overheating planet, income inequality and other big societal problems. Environmental degradation has worsened, while the gap between the rich and poor has widened. The overemphasis on measuring and reporting sustainability has delayed, and displaced, the urgent action needed to tackle those challenges, they say. Environmental, social and governance investing, or “ESGlalaland,” suffers from “cognitive dissonance,” sustainability veteran Ralph Thurm said in a March report titled “The Big Sustainability Illusion.” ESG ratings only explain “who is best in class of those that say that they became less bad,” he said.

“The bigger problem than greenwash is greenwish,” Duncan Austin, a former partner at Al Gore’s Generation Investment Management, said, referring to greenwashing where environmental benefits are exaggerated or misrepresented. “The win-win belief at the heart of ESG has led to widespread wishful thinking that we’re making more progress on sustainability than we really are.”

Corporations around the world have been clamoring to green their businesses. Hundreds have announced net-zero emissions targets and poured billions of dollars into solar and wind projects, while chief sustainability officers have become ubiquitous in C-suites. In April, Amazon.com Inc. signed deals to add more than 1.5 gigawatts of power to its green energy efforts. Last month, Rolls-Royce Holdings Plc said it will make some plane engines compatible with using sustainable fuels, while Tyson Foods Inc., America’s biggest meat company, pledged to go carbon neutral by 2050.

The veterans acknowledge they were complicit and benefited from the boom in sustainability that got underway in the 1990s. And much good was created along the way, they say. But now they’re coalescing under one message: More aggressive government policies are needed to address the planet’s problems.

“The 20-year focus on corporate social responsibility reporting and the current frenzy on ESG investing have created an impression that more is happening to address social and environmental challenges than is really happening,” said Ken Pucker, a former chief operating officer at Timberland who had worked on the company’s sustainability projects. “Markets alone aren’t sufficient to solve these problems.””

Academic argues lower ESG returns are normal and expected

On July 17, Vikram Gandhi, a senior lecturer at Harvard Business School and the man who developed and teaches the school’s first course on impact investing, penned a piece for MarketWatch in which he made the case that ESG’s below-market returns this year are to be expected. Moreover, he argued that this is, in fact, the way that ESG investing should be. He wrote:

“[I]nvestors seeking to make positive environmental and social impact with their capital may have noticed something else: Since Biden took office on Jan. 20, many ESG-focused stock funds have been trailing the broad U.S. market. 

The FTSE4Good U.S. Select Index, which screens for U.S. stocks based on environmental, social, and governance factors, was up 11.6% since Jan. 20 through June 30, while the S&P 500 rose 12.3%, according to investment researcher Morningstar. It’s the same story globally. For example, the MSCI ACWI Sustainable Impact Index was up less than 1% since Biden took office, while the MSCI All-Country World Index gained 8.5%.

In the energy sector, the results were even more pronounced. Traditional oil-related stocks in the S&P 500 gained more than 25% from Jan. 20 through June 30, but shares of sustainable companies in the S&P Global Clean Energy Index — which includes solar, wind, and smart grid exposure — fell almost 25%.”

This, he continues, is exactly what should be expected and that above-market expectations for ESG were always misplaced:

“Is the market sending ESG investors a signal? Actually, no. Such counterintuitive performance was to be expected, and it’s welcome as it demonstrates the normalization of ESG considerations….

Bouts of ESG underperformance are actually a positive development, as it underscores the fact that ESG isn’t some gimmick or silver bullet when it comes to investing. Instead, this shows the natural evolution of sustainable investing from novel idea to thematic tactic to a core strategy that is subject to the same fundamental market forces that affect all other mainstream, long-term holdings.”

Demand for ESG assets increasing

On July 14, Reuters reported that:

“The rush to invest in exchange-traded funds focusing on environmental, social and governance (ESG) issues jumped in the first half of 2021, with monthly turnover more than tripling to nearly 3 billion euros from a year ago, Deutsche Boerse said on Wednesday.

ESG assets are increasingly in demand among investors as companies that perform well on a range of issues from climate change to boardroom diversity are seen as better long-term investments than peers lagging in these areas.

On its Frankfurt-based electronic trading platform Xetra, German stock exchange operator Deutsche Boerse said ESG ETFs now account for more than 16% of total ETF trading turnover on Xetra compared to 6% a year ago.”

On July 18, Reuters reported that:

“Sustainable investments total $35.3 trillion, or more than a third of all assets in five of the world’s biggest markets, a report from the Global Sustainable Investment Alliance on Monday showed.

Investors are increasingly driven by environmental, social and governance-related (ESG) factors that traditionally have not been captured in a company’s balance sheet, but that can influence future returns.

The GSIA, whose member bodies track growth in their region, said professionally managed assets, using a broad gauge of what it means to invest sustainably, account for 36% of total assets under management….

The biennial industry survey looked at assets in the United States, Europe, Australasia, Japan and Canada, using data from end-2019 for all regions except Japan, where the data was to end-March 2020.

Since the last report, total assets across the markets had risen 15%, the report said.

“This growth is being fuelled by rising consumer expectations, strong financial performance and the increasing materiality of social and environmental issues….”

Finally, on July 15, MarketWatch reported that:

“A new Goldman Sachs exchange traded fund is entering the crowded environmental, social and governance (ESG) investing class hoping to stand out: It’s actively managed, transparent about its holdings, invests in global companies of all sizes and isn’t based on an index.

The New York-based investment bank Thursday launched Goldman Sachs Future Planet Equity ETF GSFP, -0.88%, which is investing in companies that are working on environmental problems aligned with five themes: clean energy, resource efficiency, sustainable consumption, the circular economy and water sustainability….

The bank started the ETF because, it says, “we are on the cusp of a sustainability revolution that could have the scale of the industrial revolution and the speed of the digital revolution,” [Katie Koch, co-head of fundamental equity at investment unit Goldman Sachs Asset Management] says, adding that Goldman sees alignment between global governments, corporations and consumers on sustainability.

“We know that the millennial consumer is very committed to a sustainable planet and actually willing to pay a premium for products and services that are aligned with a sustainable planet,” she says.”



Checks and Balances – Federal Housing Finance Agency structure ruled unconstitutional

The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.

This edition: 

In this month’s edition of Checks and Balances, we review the latest administrative law activity from the U.S. Supreme Court, including a decision calling for increased supervision of administrative patent judges (APJs) and a holding that the structure of the Federal Housing and Finance Agency (FHFA) is unconstitutional; three Congressional Review Act resolutions that, for the first time, repealed regulations issued under a Republican administration; and a closer look at the Biden administration’s first Unified Public Agenda of Regulatory and Deregulatory actions. 

At the state level, we take a look at an effective ban on judicial deference by the Mississippi Supreme Court and a new Maryland law that shifts agency responsibilities to state administrative law judges (ALJs).  

We also highlight new commentary that questions whether Congress granted the Centers for Disease Control and Prevention (CDC) more authority than the president. As always, we wrap up with our Regulatory Tally, which features information about the 170 proposed rules and 319 final rules added to the Federal Register in June and OIRA’s regulatory review activity.

In Washington

SCOTUS finds Federal Housing Finance Agency structure unconstitutional

What’s the story? The United States Supreme Court issued decisions in two administrative law cases since our last edition concerning oversight of administrative patent judges (APJs) and the structure of the Federal Housing Finance Agency (FHFA).

In United States v. Arthrex, the court held 5-4 that the U.S. Constitution’s Appointments Clause does not allow administrative patent judges (APJs) to resolve patent disputes without increased supervision from higher-level agency officials. In its June 21 decision, the court decided to sever the parts of the patent statute that prevented the director of the Patent and Trademark Office (PTO) from unilaterally reviewing APJ decisions.

Chief Justice John Roberts delivered the opinion of the court, writing that the PTO director’s lack of review power over APJ decisions gave APJs power that conflicted with the “design of the Appointments Clause ‘to preserve political accountability.’”

The court’s ruling preserved the authority of the secretary of commerce to appoint APJs while increasing the supervision powers of the director of the Patent and Trademark Office. 

In Collins v. Yellen, the court held that restrictions on the president’s authority to remove the director of the FHFA violated the separation of powers. In its June 23 decision, the court also rejected the argument that the FHFA actions at issue in the case went beyond the agency’s legal authority.

Justice Samuel Alito delivered the opinion of the court, writing that “the Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.”

The court’s decision to hold the structure of the FHFA unconstitutional articulated limits on the types of administrative agencies Congress may create and reaffirmed the court’s 2020 decision in Seila Law v. Consumer Financial Protection Bureau (CFPB), which held that the CFPB director’s removal protections unconstitutionally insulated the agency from presidential control.

Want to go deeper?

Biden signs three Congressional Review Act resolutions repealing Trump-era rules

What’s the story? President Joe Biden (D) on June 30 signed three Congressional Review Act (CRA) resolutions that, for the first time, reversed regulatory actions taken by a Republican administration. All three resolutions passed both chambers of Congress largely along party lines with Democrats in favor and Republicans opposed.

  • The first resolution, S.J.Res.13, reversed an Equal Employment Opportunity Commission (EEOC) rule issued under the Trump administration that changed the agency’s information-sharing requirements with companies accused of discrimination. 
  • The second resolution, S.J.Res.14, reversed an Environmental Protection Agency (EPA) methane rule issued under the Trump administration and restored methane emissions standards set under the Obama administration. 
  • The third resolution, S.J.Res.15, reversed a Comptroller of the Currency (OCC) rule issued under the Trump administration that changed regulations governing third-party lending. 

The CRA is a federal law passed in 1996 that creates a 60-day review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a federal agency rule issued in the final months of a presidential administration. Since the law’s creation in 1996, Congress has used the CRA to successfully repeal 20 agency rules. 

Want to go deeper?

Biden administration releases first Unified Agenda

What’s the story? The Biden administration on June 11 released the Spring 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions–a semiannual publication of recently completed, ongoing, and anticipated federal regulatory actions. 

A White House press release announcing the new agenda outlined the following priority regulatory categories: “protect health and safety,” “support a robust economic recovery that strengthens the middle class,” “advance equity,” “confront the climate crisis,” and “build a fair, orderly, and humane immigration system.”

The agenda features 3,959 rules in the active, completed, and long-term stages.

The agenda’s searchable interface on reginfo.gov (the website for the Office of Information and Regulatory Affairs) no longer includes distinctions between regulatory and deregulatory actions. Those distinctions were previously prompted by President Donald Trump’s (R) Executive Order 13771, which required federal agencies to eliminate two old regulations for each new regulation issued. President Joe Biden (D) revoked E.O. 13771 on January 20, 2021.

Want to go deeper?

In the states

Mississippi Supreme Court rejects Auer deference, ends judicial deference in state

What’s the story? The Mississippi Supreme Court on June 10 ruled 8-1 in Mississippi Methodist Hospital and Rehabilitation Center Inc. v. Mississippi Division of Medicaid to end the state practice of deferring to agency interpretations of regulations, a doctrine known as Auer deference at the federal level. The court’s decision, combined with its prior rejection of state-level Chevron deference, effectively banned judicial deference practices in the state, according to an analysis by Pacific Legal Foundation attorney Daniel Ortner.

Justice Leslie King wrote the opinion for the court, noting that the practice of “[d]eferring to agency interpretations of rules and regulations is inconsistent with the standard of review for statutory interpretation, causes confusion, causes inconsistencies in application and within our own caselaw, and violates article 1, section 2, of Mississippi’s Constitution.” The court’s decision institutes a new period of de novo review over agency regulatory interpretations.

The court ended the state-level Chevron deference doctrine, which requires courts to defer to agency interpretations of unclear statutes, in the 2018 case King v. Mississippi Military Department. The justices argued that the practice violated the separation of powers prescribed by the state constitution. The King decision instituted a new standard of de novo review over such agency interpretations, which the court later reaffirmed in a 2020 tax and gambling case.

Want to go deeper?

Maryland agency responsibilities shift to ALJs

What’s the story? A new Maryland law effective July 1 shifted the responsibility of determining compensation for individuals who served time in prison for crimes they did not commit from the Maryland Board of Public Works to state administrative law judges (ALJs). 

Maryland Governor Larry Hogan (R) first proposed the change in September 2019. Hogan argued that state ALJs are more qualified than the members of the Board of Public Works to make compensation determinations because the board lacks the “expertise, capacity [and] personnel” to evaluate damages, pain, and suffering.

The Board of Public Works is made up of three elected officials: the governor, the state comptroller, and the state treasurer. State law previously authorized the board to compensate wrongly incarcerated individuals. However, the board had not done so since the last wrongly incarcerated individual received compensation in 2004.

Five wrongly incarcerated men had petitioned the board for compensation over the months leading up to Hogan’s proposal. Walter Lomax, for whom the new law is named, spent 39 years in prison for a crime he did not commit. Lawyers had asked the board to award $100,000 to each man for each year he spent behind bars for a total of roughly $12 million. 

Want to go deeper?

____________________________________________________________________________

Can agencies have more power than the president?

New commentary from Reason senior editor Jacob Sullum questions whether Congress granted the Centers for Disease Control and Prevention (CDC) more power than the president.

In “Did Congress Give the CDC More Authority Than the President?” Sullum claims that the agency’s legal defense of its eviction moratorium in Alabama Association of Realtors v. Department of Health and Human Services suggested that the agency has unlimited authority to take “reasonably necessary” actions in order to prevent the spread of communicable diseases. Sullum argues that the agency’s mandate could exceed the president’s authority:

“Nor is the power asserted by the CDC limited to overriding rental contracts. It clearly would authorize a national mask mandate of the sort that Joe Biden conceded was beyond his powers as president, not to mention nationwide business closures and home confinement of every American who is not engaged in activities the CDC’s director deems essential.

Transforming its recommendations into commands, the CDC could have legally required all of us to keep our distance from members of other households. It even could have forced us to ‘clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe,’ back when it thought that was a sensible safeguard against COVID-19. …

Where does the CDC get these vast powers, which somehow exceed even the president’s? It cites the Public Health Service Act, which authorizes the secretary of health and human services to issue regulations that ‘in his judgment are necessary’ to control ‘communicable diseases,’ and one of those regulations, which delegates that authority to the CDC’s director.”

Though the U.S. Supreme Court on June 29 declined to lift a stay on the CDC’s eviction moratorium (set to expire at the end of July), a concurring statement by Justice Brett Kavanaugh indicated that at least five of the justices considered the moratorium to be unlawful.

Want to go deeper

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s June regulatory review activity included the following actions:

  • Review of 32 significant regulatory actions. 
  • Two rules approved without changes; recommended changes to 29 proposed rules; one rule withdrawn from the review process.
  • As of July 1, 2021, OIRA’s website listed 59 regulatory actions under review.
  • Want to go deeper? 


The State and Local Tap: California judge rules Gov. Newsom’s party affiliation will not appear on recall ballot

The State and Local Tap

Our weekly summary of state & local news highlights a state judge’s ruling that Gov. Gavin Newsom’s party affiliation will not appear on California’s Sept. 14 recall ballot and members of Texas’ legislature travel to Washington, D.C. ahead of an expected vote on election-related legislation. Read all about it in this week’s edition of the State & Local Tap:

California judge rules Gov. Newsom’s party affiliation will not appear on recall ballot

Sacramento County Superior Court Judge James P. Arguelles ruled on July 12 that California Gov. Gavin Newsom’s (D) party affiliation will not appear on the September 14 recall ballot. Newsom sued Secretary of State Shirley Weber (D) on June 28 seeking to have his party affiliation added to the ballot. Weber cited Newsom’s February 2020 response to the recall petition, in which Newsom did not file a party preference form, as the reason for leaving his party affiliation off the recall ballot.

In the ruling, Judge Arguelles wrote, “First, Governor Newsom’s failure to designate a party preference will not result in a ballot identifying him as ‘Party Preference: None.’ Rather, there will be no reference to party preference next to his name one way or the other. Instead, the recall ballot will simply ask whether he should be recalled.”

The recall election will present voters with two questions. The first will ask whether Newsom should be recalled from the office of governor. The second will ask who should succeed Newsom if he is recalled. Newsom was elected as California’s governor in 2018 with 61.9% of the vote. The only successful recall of a California governor occurred in 2003, when voters recalled then-Gov. Gray Davis (D). Voters chose Arnold Schwarzenegger (R) as Davis’ replacement.

Texas Democrats leave state ahead of expected vote on election-related legislation

At least 51 Democratic state representatives in Texas left the state on July 12, traveling to Washington D.C., ahead of expected votes on election-related legislation. Supporters say the legislation includes updates to improving election integrity. Opponents say the bills amount to voter suppression.

The Texas House of Representatives requires 100 members—two-thirds of the 150 legislators—present to have a quorum. A quorum is the minimum number of members required to conduct official business. Democrats control 67 of the 150 state House seats in Texas.

It’s the second time Texas House Democrats have staged a walkout this year. The first took place on May 30, when all 67 members of the Democratic caucus left the chamber during consideration of another package of election-related legislation. This prevented the House from passing the legislation ahead of the regular session’s midnight deadline. Following the end of the legislature’s regular session, Gov. Greg Abbott (R) called a special session to resume consideration of the legislation.

Ballot Measures Update

Thirty-one (31) statewide measures have been certified for the 2021 ballot in seven states so far.

No new measures were certified for the 2021 ballot last week.

Fifty-seven statewide measures have been certified for the 2022 ballot in 26 states so far. No new measures were certified for the 2022 ballot last week.

Signatures have been submitted and are pending verification for two additional 2022 initiatives in California and Michigan. One indirect initiative in Michigan was certified to the legislature last week. The initiative would repeal Michigan’s Emergency Powers of Governor Act.

Arizona ends federal pandemic unemployment insurance program; courts rule program must continue in Indiana, Maryland

Arizona ended its participation in pandemic-related federal unemployment benefit programs on July 10, and courts in two states—Indiana and Maryland—ruled those states must continue to participate in the program. Gov. Doug Ducey (R) had announced that Arizona would end its involvement in the program on May 13.

The Indiana Court of Appeals ruled on July 12 that the state must comply with Superior Court Judge John Hanley’s June 25 emergency order to resume participation in federal pandemic unemployment programs. Gov. Eric Holcomb (R) ended the state’s participation in those programs on June 19. 

In Maryland, Baltimore Circuit Court Judge Lawrence Fletcher-Hill ruled on July 13 that the state must continue participating in the federal pandemic unemployment program. Gov. Larry Hogan (R) had ended the state’s participation in those programs on July 3. Hogan said he would not challenge the ruling. 

President Joe Biden signed the American Rescue Plan on March 11. This legislation extended federal unemployment benefit programs related to the coronavirus pandemic, including a $300 per week addition to state unemployment benefits. The programs are scheduled to end on Sept. 6. 

Anna Scharf sworn in to Oregon House of Representatives District 23

Anna Scharf (R) was sworn in to the District 23 seat in the Oregon House of Representatives on July 12. Republican county commissioners in the four counties that make up the district had appointed her on July 6. 

Scharf replaced former Rep. Mike Nearman (R), who was expelled from the House on June 10 after video footage surfaced in which he helped protesters enter the state Capitol building on December 21, 2020, resulting in injuries and property damage. Scharf had served as a legislative policy analyst in Rep. Nearman’s office since February 2020 and will serve the remainder of Nearman’s term, which was set to expire in January 2023.

States in session

Eight states— California, Massachusetts, Michigan, New Jersey, North Carolina, Ohio, Pennsylvania, and Wisconsin—are in regular session.

Delaware ends COVID-19 state of emergency

Gov. John Carney (D) ended Delaware’s statewide COVID-19 state of emergency on July 12. Carney had signed an order on June 15 ending the state of emergency, which began on March 13, 2020. 

As of July 16, COVID-19 emergency orders have expired in 25 states. They remain active in 25 states.

Governors and state agencies in all 50 states issued orders declaring active emergencies in response to the coronavirus pandemic. These orders allowed officials to access resources unavailable to them during non-emergencies, like stockpiles of medical goods and equipment, and to waive or suspend certain rules and regulations. Governors and state agencies relied on emergency power authority to enact lockdown and stay-at-home orders, mask mandates, and other restrictions on businesses and individuals. 

Michigan Supreme Court rejects independent commission’s request to extend redistricting deadlines

The Michigan Supreme Court rejected a request on July 9 by the Michigan Independent Citizens Redistricting Commission to extend the state’s constitutional deadlines for adopting new redistricting plans. This means that the constitutional deadlines–presentation to the public by Sept. 17 and adoption by Nov. 1–remain in effect. 

The commission had argued that it would “not be able to comply with the constitutionally imposed timeline” due to delays in receiving detailed redistricting data from the U.S. Census Bureau. The commission had asked the state supreme court to order the commission to propose plans within 72 days of the receipt of redistricting data and to approve plans within 45 days after that.

In its unsigned order, the court said that it was “not persuaded that it should grant the requested relief.” In her concurring opinion, Justice Elizabeth Welch wrote, “The Court’s decision is not a reflection on the merits of the questions briefed or how this Court might resolve a future case raising similar issues. It is indicative only that a majority of this Court believes that the anticipatory relief sought is unwarranted.”

Maryland State Delegate Keith Haynes retires

Keith Haynes (D)—who was first elected to the state legislature in 2002—retired from the Maryland House of Delegates on July 15. Haynes most recently won re-election in 2018 after running unopposed in the primary and general elections. 

“After 18 1/2 years of service, I am retiring from the Maryland House of Delegates as of July 15, 2021,” Haynes wrote in a statement to the Baltimore Sun. “I would like to thank my constituents for the opportunity to serve them.”

When a vacancy occurs in the Maryland General Assembly, the governor must appoint a replacement within 30 days after the vacancy happens. The governor selects from a list of three prospective candidates submitted by the political party that last held the vacant seat. The person appointed to the seat serves for the remainder of the unexpired term. Haynes’ term was set to expire on January 10, 2023.

Special Elections

Forty-six state legislative special elections have been scheduled in 18 states so far this year. Thirty-four (34) specials have already taken place. Heading into those races, Democrats had previously controlled 15 of the seats, and Republicans previously controlled 19. No seats have changed party hands as a result of the special elections.

  • In special elections between 2011 and 2020, one party (either Republicans or Democrats) saw an average net gain of four seats nationally each year.
  • An average of 57 seats were filled through special elections in each of the past six even years (2010: 30, 2012: 46, 2014: 40, 2016: 65, 2018: 99, 2020: 59).
  • An average of 88 seats were filled through special elections in each of the past five odd years (2011: 94, 2013: 84, 2015: 89, 2017: 98, 2019: 77).

Upcoming special elections include:

July 27

August 3

August 17



The Federal Tap: Early voting begins in runoff in Texas’ 6th Congressional District

The Federal Tap

Our weekly summary of federal news highlights the start of early voting in the special runoff election between two Republicans in Texas’ 6th Congressional District and the Supreme Court’s announcement of the list of cases it will hear at the start of the October 2021-2022 term. Read all about it in this week’s edition of the Federal Tap.

Early voting begins July 19 in runoff in Texas’ 6th Congressional District

Voters in Texas’ 6th Congressional District may vote early from July 19 to July 23 in the district’s special election runoff. Jake Ellzey (R) and Susan Wright (R) are running in the July 27 race to fill the vacancy left when the previous incumbent, Ronald Wright (R), died from COVID-19 related complications on Feb. 7. The district is located in the northeastern portion of the state and includes Ellis and Navarro counties and an area of Tarrant County.

Susan Wright is Ronald Wright’s widow. Former President Donald Trump (R) endorsed her on April 26. Former Texas Gov. Rick Perry (R) endorsed Ellzey.

Since both runoff candidates are Republicans, the seat will not change party hands as a result of the election. The two advanced from a 23-candidate special election on May 1. Wright received 19.2% of the vote while Ellzey received 13.8% of the vote. 

U.S. Supreme Court releases October 2021 argument calendar

The Supreme Court of the United States (“SCOTUS”) released its argument calendar for the 2021-2022 term’s October sitting on July 13. The court will hear nine hours of oral argument in nine cases between Oct. 4 and Oct. 13. 

Click the links below to learn more about each case:

October 4, 2021

October 5, 2021

October 6, 2021

October 12, 2021

October 13, 2021

To date, 20 cases that have been granted review during the term have not yet been scheduled for argument. Two cases were dismissed after they were accepted. The court has agreed to hear 31 cases so far during its 2021-2022 term.

Where was the president last week?

  • On Monday, Biden remained in Washington, D.C.
  • On Tuesday, Biden delivered remarks in Philadelphia, Pennsylvania.
  • Biden remained in Washington, D.C. for the rest of the week.

Federal Judiciary

  • 83 federal judicial vacancies
  • 23 pending nominations
  • 31 future federal judicial vacancies

Leading Democrats announce campaign appearances in Ohio’s 11th Congressional District special election

Two Democratic candidates have announced campaign appearances by nationally known figures ahead of the special Democratic primary election in Ohio’s 11th Congressional District on Aug. 3. The election is being held to fill the vacancy left when Biden appointed former incumbent Marcia Fudge (D) secretary of housing and urban development. Thirteen candidates are running in the Democratic primary.

Nina Turner announced on July 15 that Rep. Alexandria Ocasio-Cortez (D-N.Y.) will campaign for her in Northeast Ohio on July 24. Ocasio-Cortez is one of six representatives that refer to themselves as The Squad, along with Reps. Jamaal Bowman (D-N.Y.), Cori Bush (D-Mo.), Ilhan Omar (D-Minn.), Ayanna Pressley (D-Mass.), and Rashida Tlaib (D-Mich.). All have endorsed Turner, a former state senator and co-chair of Sen. Bernie Sanders’ (I-Vt.) 2020 presidential campaign.

National Journal columnist Josh Kraushaar tweeted that House Majority Whip James Clyburn (D-S.C.) and other members of the Congressional Black Caucus will be in the 11th District the weekend ahead of the election to campaign for Shontel Brown, a member of the Cuyahoga County Council and chair of the county Democratic Party.

Michigan Supreme Court rejects independent commission’s request to extend redistricting deadlines

The Michigan Supreme Court rejected a request on July 9 by the Michigan Independent Citizens Redistricting Commission to extend the state’s constitutional deadlines for adopting new redistricting plans. This means that the constitutional deadlines–presentation to the public by Sept. 17 and adoption by Nov. 1–remain in effect. 

The commission had argued that it would “not be able to comply with the constitutionally imposed timeline,” due to delays in receiving detailed redistricting data from the U.S. Census Bureau. The commission had asked the state supreme court to order the commission to propose plans within 72 days of the receipt of redistricting data and to approve plans within 45 days thereafter.

In its unsigned order, the court said that it was “not persuaded that it should grant the requested relief.” In her concurring opinion, Justice Elizabeth Welch wrote, “The Court’s decision is not a reflection on the merits of the questions briefed or how this Court might resolve a future case raising similar issues. It is indicative only that a majority of this Court believes that the anticipatory relief sought is unwarranted.”

Congress is in session

Both the House and Senate are in session next week. Click here to see the full calendar for the first session of the 117th Congress.

SCOTUS is out of session

The Supreme Court will not hear oral arguments next week. To learn about the 2020-2021 term, click here.

Ballotpedia’s polling index shows presidential approval at 52%, congressional approval at 36%

Ballotpedia’s polling index showed President Joe Biden (D) at 52% approval and 43% disapproval as of July 15. At this time last month, his approval rating was at 53%.

The highest approval rating Biden has received during his tenure is 55%, last seen on May 26. The lowest approval rating he has received is 51% on March 29.

Congressional approval is at 36% and disapproval is at 55%, according to our index. At this time last month, congressional approval was at 26%.

The 117th Congress’ current approval rating of 36% is the highest it has received. The lowest approval rating it has received is 19%, last seen on June 23.

At this time during the tenure of former President Donald Trump (R), presidential approval was at 41% and congressional approval was at 20%. To see more comparisons between Biden and Trump administration polling, click here.

President Biden signs proclamations commemorating Atomic Veterans Day, Captive Nations Week

President Joe Biden (D) signed a proclamation on July 15, declaring July 16 as National Atomic Veterans Day. The commemoration honors veterans of the armed forces who were exposed to radiation between 1945 and 1962 in the course of their military service. President Ronald Reagan (R) was the first president to recognize National Atomic Veterans Day, doing so on July 16, 1983.

Among the honorees are service members who were in or near Hiroshima and Nagasaki at the time of the atomic bombings, and those who worked at nuclear test sites in the U.S. The United States detonated the first nuclear device in world history on July 16, 1945, in Alamogordo, New Mexico.
On July 16, Biden signed a proclamation declaring July 18 through 24 as Captive Nations Week. Biden said the week was dedicated to awareness and remembrance of people living in undemocratic nations and specifically mentioned ongoing unrest in Belarus, China, Burma, Venezuela, Cuba, Nicaragua, and Ukraine. President Dwight Eisenhower (R) was the first president to recognize Captive Nations Week in 1960.



Documenting America’s Path to Recovery #283: July 15, 2021

Welcome to Documenting America’s Path to Recovery. Today we look at:

  • An extended coronavirus emergency in Connecticut
  • Rhode Island announces a higher education vaccine requirement
  • Vaccine distribution
  • School closures and reopenings
  • Travel restrictions
  • State proof-of-vaccination requirements and policies
  • Federal responses
  • COVID-19 policy changes from this time last year 

We are committed to keeping you updated on everything from mask requirements to vaccine-related policies. We will keep you abreast of major developments—especially those affecting your daily life. Want to know what we covered Tuesday? Click here.

Since our last edition

What rules and restrictions are changing in each state? For a continually updated article, click here.

California (Democratic trifecta): On July 13, Gov. Gavin Newsom (D) announced the passage of the California Comeback Plan. Included in the law are provisions for direct payments to California residents, and appropriations for renter assistance and small business relief programs.

Connecticut (Democratic trifecta): On July 14, the General Assembly voted to extend Gov. Ned Lamont’s (D) emergency powers through Sept. 30.The extension passed 73-56 in the House, and 19-15 in the Senate.

Rhode Island (Democratic trifecta): On July 13, Gov. Dan McKee (D) announced the state will be the first where all colleges and universities will require students to be vaccinated when returning in the fall.

Vaccine distribution

We last looked at vaccine distribution in the July 13 edition of the newsletter. As of July 14, the states with the highest vaccination rates as a percentage of total population (including children) were:

The states with the lowest rates were:

School closures and reopenings

Read more: School responses to the coronavirus (COVID-19) pandemic during the 2020-2021 academic year

We last looked at school closures and reopenings on July 8. Since then, Illinois Superintendent of Education Carmen Ayala issued a declaration requiring in-person learning for the 2021-2022 school year.

Nationwide:

  • Two states (Del., Hawaii) and Washington, D.C. had state-ordered regional school closures, required closures for certain grade levels, or allowed hybrid instruction only.

2019-20 enrollment: 410,896 students (0.81% of students nationwide)

  • Thirteen states had state-ordered in-person instruction.

2019-20 enrollment: 15,697,460 students (30.96% of students nationwide)

  • One state (Ariz.) had state-ordered in-person instruction for certain grades.

2019-20 enrollment: 1,152,586 students (2.27% of students nationwide)

  • Thirty-four states left decisions to schools or districts.

2019-20 enrollment: 33,449,499 students (65.96% of students nationwide)

Travel restrictions

Read more: Travel restrictions issued by states in response to the coronavirus (COVID-19) pandemic, 2020

Overview:

  • Since the start of the pandemic, governors or state agencies in 27 states and the District of Columbia issued executive orders placing restrictions on out-of-state visitors. At least 24 of those orders have been rescinded. 

Since July 8, one city has changed its travel restrictions.  

Details:

  • Chicago – On July 13, Chicago, Ill., added Missouri and Arkansas to its travel advisory list after both states surpassed 15 COVID-19 cases per day per 100,000 people. The advisory asks unvaccinated people traveling from Missouri or Arkansas to receive a negative COVID-19 test 72 hours before arrival or quarantine for 10 days. Between June 1 and July 13, no states met the threshold for being added to the advisory list. 

State proof-of-vaccination requirements and policies

Read more: State government policies about proof-of-vaccination (vaccine passport) requirements

As COVID-19 vaccination rates have increased, state governments have enacted various rules around the use of proof-of-vaccination requirements. In some cases, lawmakers have banned state or local governments from requiring that people show proof-of-vaccination. Other states have helped create digital applications—sometimes known as vaccine passports—that allow people to prove their vaccination status and, in some cases, bypass COVID-19 restrictions.  

Overview:

  • Twenty states have passed legislation or issued orders prohibiting proof-of-vaccination requirements at some or all levels of government. 
  • Four states have backed the creation of digital vaccination status applications. Those applications allow fully vaccinated individuals to bypass COVID-19 restrictions in some circumstances.

Since July 8, one state has enacted a proof-of-vaccination policy and none have enacted new digital vaccination status applications.  

Details:

  • Ohio – On Wednesday, July 14, Gov. Mike DeWine (R) signed House Bill 244, which prohibits public schools and state universities from discriminating against students, faculty, and staff who haven’t received a fully FDA-approved vaccine. The bill also prohibits those institutions from requiring students, faculty, and staff to get such a vaccine. Currently, the FDA has only granted the COVID-19 vaccines an Emergency Use Authorization, which is a step removed from full approval. 

Federal responses

Read more: Political responses to the coronavirus (COVID-19) pandemic, 2020

  • On July 12, the Food and Drug Administration (FDA) announced it would apply a new warning to Johnson & Johnson’s single dose COVID-19 vaccine after some recipients developed Guillain-Barré syndrome, a disorder that causes the immune system to attack the nerves. The FDA said it has received around 100 reports of the disorder linked to the vaccine. The Centers for Disease Control and Prevention’s (CDC) Advisory Committee is scheduled to investigate the reports on July 15 to determine if a causal relationship exists between the vaccine and disorder. At the time the FDA announced the warning, around 12.8 million doses of the Johnson & Johnson vaccine had been administered in the United States.

This time last year: July 15-17, 2020

The first case of COVID-19 in the U.S. was confirmed on Jan. 21, 2020. But it wasn’t until March when the novel coronavirus upended life for most Americans. Throughout March and April, many states issued stay-at-home orders, closed schools, restricted travel, and changed election dates. Many of those policies remain in place today. Each week, we’ll look back at some of the defining policy responses of the early coronavirus pandemic.

Here’s what happened this time last year. To see a list of all policy changes in each category, click the links below.

Wednesday, July 15, 2020

  • Election changes:

United States District Court for the Eastern District of Virginia Judge John A. Gibney reduced petition signature requirements for unaffiliated and minor-party candidates for federal office in Virginia as follows: 2,500 signatures for presidential candidates; 3,500 signatures for U.S. Senate candidates; and 350 signatures for U.S. House candidates. Gibney extended the filing deadline for unaffiliated and minor-party congressional candidates to Aug. 1.

  • Mask requirements

Montana Gov. Steve Bullock (D) announced a statewide mask order requiring individuals to wear masks inside certain businesses and at outdoor gatherings of greater than 50 people where social distancing was not possible.

Oregon Gov. Kate Brown (D) expanded the statewide face-covering mandate to require masks in outdoor public spaces when six-foot distancing could not be maintained.

Thursday, July 16, 2020

  • Mask requirements: 

Alabama Gov. Kay Ivey (R) issued a mask order that required face coverings in public when social distancing with non-household members could not be kept.

  • Federal government responses:

Acting Homeland Security Secretary Chad Wolf announced on Twitter that the Department of Homeland Security would extend its prohibition on nonessential travel with Canada and Mexico through Aug. 20.

  • State court changes:

North Carolina Supreme Court Chief Justice Cheri Beasley announced she was maintaining the pause on jury trials through the end of September. Beasley also announced that masks would be required in courthouses until further notice.

  • Eviction and foreclosure policies:

Michigan Gov. Gretchen Whitmer (D) allowed the statewide moratorium on evictions to expire. She first issued the moratorium on March 20.

Friday, July 17, 2020 

  • Election changes:

United States District Court for the Southern District of Texas Judge Lynn Hughes ruled the Republican Party of Texas could proceed as planned with its-person state convention, overturning Houston officials’ July 8 cancellation of the event.

New Hampshire Gov. Chris Sununu (R) signed HB1266 into law, which formally established concern over COVID-19 as a valid reason for voting absentee in the Sept. 8 primary and Nov. 3 general elections. The legislation also temporarily allowed voters to submit one absentee ballot application for both elections.

Iowa Secretary of State Paul Pate (R) announced that absentee ballot application forms would be sent automatically to all active registered voters in the Nov. 3 general election.

Alabama Secretary of State John Merrill (R) issued an emergency rule allowing any qualified voter to cast an absentee ballot in the Nov. 3 general election.

  • Mask requirements: 

Colorado Gov. Jared Polis (D) issued a mask mandate requiring individuals older than 10 to wear a mask inside buildings that are open to the public.

  • School closures and reopenings:

California Gov. Gavin Newsom (D) announced that counties on the state’s coronavirus watch list would begin the public school year with online education only. At the time of the announcement, 33 of the state’s 58 counties were on the watch list. 

Iowa Gov. Kim Reynolds (R) ordered that students in public and accredited nonpublic schools spend at least half of their schooling in-person. Reynolds said districts could seek waivers to the requirement from the state Department of Education.



Economy and Society: SEC Commissioner advocates board’s role in ESG oversight

ESG Developments This Week

In Washington, D.C.

SEC Commissioner Lee delivers speech about board’s role in ESG oversight

On June 28, SEC Commissioner (and former acting director) Allison Herren Lee delivered the keynote address at the 2021 Society for Corporate Governance National Conference. In her speech Lee encouraged corporations to make wise decisions when choosing, compensating, and utilizing their directors. Increasingly, Lee noted, “boards of directors are called upon to navigate the challenges presented by climate change, racial injustice, economic inequality, and numerous other issues that are fundamental to the success and sustainability of companies, financial markets, and our economy.”

Given that many corporationsAmerican corporations, specificallyare responsible for more global economic activity than many smaller countries, Lee argued that corporations also need to be more responsible and effective at addressing global problems than some smaller countries. And the key to being thusly effective is a useful and adept board:

“Historically, many ESG issues were seen as not within the purview of the board of directors. These matters, referred to as “corporate social responsibility” or CSR issues, were largely treated as if they were separate and apart from the business of generating revenue and earning profits. Debates about director duties around climate and ESG often centered on whether directors were even permitted to consider issues that previously fell under the rubric of corporate social responsibility. In that Milton Friedman era, risks like climate change and many other issues we would now call ESG were characterized as topics that could bear on the public good, but were not relevant to maximizing value for shareholders.

Those days are over….

There is, for example, broad consensus regarding the physical and transition risks associated with climate. SASB (now the Value Reporting Foundation), the Global Reporting Initiative, and many others have clearly set forth financially material ESG risks for companies. There is tremendous and growing investor demand for climate and ESG disclosure. The world’s largest asset managers and other institutional investors have been direct and vocal in conveying that they consider ESG material to their decision-making. No matter the view of regulatory involvement in climate and ESG disclosures, directors must reckon with this growing consensus and growing demand from the shareholders who elect them. 

Accordingly, boards increasingly have oversight obligations related to climate and ESG risks – identification, assessment, decision-making, and disclosure of such risks.  These obligations flow from both the federal securities laws and fiduciary duties rooted in state law.”

Commissioner Lee concluded with several suggestions about how corporate shareholders could ensure that their boards of directors are properly positioned to accomplish their ESG tasks:

“This year, BlackRock emphasized that it expects “boards to shape and monitor management’s approach to material sustainability factors in a company’s business model” and will hold directors accountable where they fall short. Similarly, State Street announced that it will start voting against the boards of companies that underperform their peers when it comes to ESG standards. Proxy advisory firms ISS and Glass Lewis have announced new voting policies that include director accountability for ESG governance failures.

As shareholders and others increasingly emphasize the need for climate and ESG to be incorporated into risk management and governance practices, they have mechanisms to hold companies accountable where they fall short of expectations. They can put pressure on boards to act through shareholder proposals. They can replace directors, as we saw with Exxon. And ultimately both investors and consumers can take their capital elsewhere.

Importantly, all of these risks also present great opportunities. Boards that proactively seek to integrate climate and ESG into their decision-making not only mitigate risks, but better position their companies and business models to compete for capital based on good ESG governance.

So what are some key steps for boards that seek to maximize ESG opportunities, message their commitment on these issues, and position themselves as ESG leaders?

Enhance Board Diversity….

Increase Board Expertise….

Inspire Management Success….”

Republicans question Federal Retirement Thrift Investment Board about BlackRock, State Street’s voting guidelines

On June 30, two Republican Senators, Pat Toomey (PA) and Ron Johnson (WI)the ranking members of the Senate Committee on Banking, Housing, and Urban Affairs and the Permanent Subcommittee on Investigations of the Senate Committee on Homeland Security and Governmental Affairs, respectivelysent a letter to David Jones, the Chairman of the Federal Retirement Thrift Investment Board (FRTIB), with questions about the federal Thrift Savings Plan and the use of its invested funds by its contracted asset managers to pursue what they deem to be their own personal and political agendas. Specifically, they wrote:

“We are writing to you regarding troubling statements by the companies that manage federal employees’ retirement investments suggesting those asset managers are not putting federal employees’ retirement security first. Specifically, recent statements by the CEOs of BlackRock and State Street Global Advisors (SSGA) indicate they are using their control of proxy votes for federal employees’ Thrift Savings Plan (“the Plan”) investments to pressure other companies to adhere to their own environmental and social policy views. We are concerned that BlackRock and SSGA may be prioritizing their CEOs’ personal policy views over retirees’ financial security. Federal law explicitly requires all fiduciaries of the Plan, including BlackRock and SSGA, to discharge their responsibilities “solely in the interest of the participants and beneficiaries and for the exclusive purpose of providing benefits to participants and their beneficiaries.”

After noting that BlackRock and State Street manage a combined $42 billion in federal employee retirement fundsjust over 60% of all funds in the plan​​Toomey and Johnson continued:

“While federal law bars the Federal government from exercising voting rights associated with funds in the Plan, FRTIB has taken the position that this prohibition does not apply to third-party investment managers serving as stewards of a large portion of the Plan’s assets. In fact, it appears that the only restriction on BlackRock and SSGA’s voting authorities is whether a vote is taken in accordance with each entity’s respective proxy voting guidelines.

Further, while these proxy voting guidelines are ostensibly focused on the investor’s fiduciary advantage, both entities are increasingly incorporating left-leaning environmental, social, and corporate governance (“ESG”) priorities into these guidelines. For example, BlackRock announced that in 2021 “key changes” in its voting guidelines “address board quality; the transition to a low-carbon economy; key stakeholder interests; diversity, equity and inclusion; alignment of political activities with stated policy positions; and shareholder proposals.” Not to be outdone, SSGA’s CEO stated “our main stewardship priorities for 2021 will be the systemic risks associated with climate change and a lack of racial and ethnic diversity.”

In light of these concerns, we ask that you provide a briefing detailing BlackRock’s and SSGA’s policies for using proxy voting rights derived from Plan assets, Board oversight of proxy voting use by Plan investment managers, and Board recourse if an investment manager is found to have violated their fiduciary duty….”

In the States

Bucks County dips its toes in the ESG Waters

Last week, Bucks County, Pennsylvania Treasurer Kris Ballerini penned an op-ed for a local, county newspaper (BucksLocalNews, July 9) in which she announced that she and others in county government have decided to invest a portion of the Bucks County public pension fund in ESG investments. The opportunity to, in her view, try to do well by doing good was, according to Ms. Ballerini, simply too enticing not to grab. She wrote:

“ESG investing concentrates on companies that emphasize sustainability as well as protecting the environment in their manufacturing plants and products. It also looks to see if the company is socially responsible by prioritizing human rights among its dealings with the public, with its employees and even with other countries. In addition, it examines if a company’s management is diverse, if executive pay is reasonable, and if the company responds to their shareholders responsibly. Finally, ESG investing asks whether a company is ethical and transparent in their accounting and business practices.

Along with Bucks County Controller Neale Dougherty, I, as Treasurer, sit on the Retirement Board for the county pension fund, which now has over a billion dollars in investments; and we asked our fund managers about devoting a portion of the fund to investments in ESG companies.

Before committing any funds to such an investment, our board reviewed the returns that such investments have earned. We found that according to the US SIF Foundation’s 2020 trends report, U.S. assets under management using ESG strategies grew by 42% from 2018 to 2020. In addition, a white paper by Morgan Stanley Institute compared the total returns of sustainable mutual and exchange-traded funds and found they were like those of traditional funds. Other studies have found that ESG investments can outperform conventional ones….

As a result, we have voted to devote a small initial portion of the pension fund to ESG companies. If this investment shows a strong upward trend, we intend to increase it. Not only will this benefit the fund financially, but we can also take pride in helping the environment and society at the same time—a “win, win” proposition that everyone can support.

As far as I am aware, we in Bucks County are among the very few innovators to take this approach in Pennsylvania. Hopefully, other public entities with pension funds and other long-term investments will join this trend—that would further benefit our ground floor investments, but also it would encourage more companies to seek to maximize their ESG compliance. That would increase the benefits to our environment and society.”

According to a report published last October by Boston College’s Center for Retirement Research, as of 2018 roughly 60% of the funds invested by public pension entities in the country ($3 trillion, out of $5 trillion total) was already invested in ESG-related products. Public pension investments in ESG accounted for fully 25% of all ESG investments in the country and roughly 33% of all institutional ESG investments.

Research

Are ESG returns about to fall?

In a report published two weeks ago, on July 1, two European researchersAbraham Lioui of the EDHEC Business School in France and Andrea Tarelli of Catholic University of Milanargued that the often cited above-average returns associated with ESG might not be entirely accurate or particularly sustainable. The paper, titled “Chasing the ESG Factor,” was summarized by The Financial Times as follows:

“Abraham Lioui, professor of finance at Edhec Business School and an expert in the strategy of investing according to good environmental, social and governance principles, believes he and his co-authors have found signs that the ESG market is reaching maturity and could become a victim of its own success.

“We are going to the zone where the positive impact of the ESG buzz on prices is coming to the end of its cycle,” Lioui said. “Soon we will be at the stage where the relationship between ESG and performance will be negative as it [logically] should be.”…

Lioui and his fellow academics also found that according to most data sets, the accumulated alpha, or outperformance, for the E and S pillars of ESG was above 1 percentage point per year, supporting the thesis that companies can do well by doing good. “However, we identify a downward sloping pattern in this outperformance,” the paper said….

“It should not be a surprise if, in the long term, ESG investing does come at some cost to investors,” said Greg Davies head of behavioural science at Oxford Risk.

He said that while early investors have been able to benefit from the rise in interest in ESG, companies were likely to incur costs by trying to improve environmental and social scores, leading to less profitability in the long term.

In addition, ESG’s popularity was likely to drive up the prices of companies with better scores, without bringing any changes in their profitability. “Paying a higher price for the same profits means lower investor returns. This is true of any assets that are ‘popular’,” Davies said.

Kenneth Lamont, senior fund analyst for passive fund research at Morningstar Europe, agreed.

“The results of the paper suggest that as assets have piled into stocks with the strongest ESG credentials, the expected outperformance of these stocks have dwindled away in recent years,” he said. “To many in the financial industry this news won’t come as a surprise, as an ESG label doesn’t exempt stocks from the fundamental laws of the market.””

These results coincide with arguments made in a May report written by Rupert Darwall for RealClearFoundation and titled “Capitalism, Socialism and ESG.” As noted in the May 18 edition of this newsletter, Darwall argued that:

“ESG proponents claim that investors following ESG precepts earn higher risk-adjusted returns because companies with high ESG scores are lower-risk. Thus, their stock price will outperform, whereas those firms with low ESG scores are higher-risk, leading them to underperform….

This supposition conflicts with finance theory. Once lower risk is incorporated into a higher stock price, the stock will be more highly valued, but investors will have to be satisfied with lower expected returns.”