"Push poll", Benicia City Attorney Heather McLaughlin, Benicia City Council, EMC Research, Kari Birdseye, Legal action, Local elections, Research America, Valero Benicia Refinery

Push poll attorney’s preparatory posturing

[Editor – as expected and predicted, the push poll survey companies’ attorney claims it wasn’t a push poll, violated no laws, is protected by the US Constitution, and would cost Benicia a fortune to contest it in court.  Stay tuned, and continue to raise alarms about Valero’s secret dirty meddling in our election.  Content of the attorney’s letter is reproduced below, and downloadable as a PDF copy.  – R.S.]

Email from Benicia City Attorney Heather McLaughlin

Hi all!

Attached is the letter declining to provide the City with the requested information.  We have this items scheduled for Closed Session on Tuesday.

The letter is public information.

Thanks, Heather

KAUFMAN LEGAL GROUP
A PROFESSIONAL CORPORATION
777 S. Figueroa Street, Suite 4050 Los Angeles, CA 90017
main 213.452.6565   fax 213.452.6575   www.kaufmanlegalgroup.com

October 9,2018

Direct: (916) 498-7715

VIA U.S. MAIL & E-MAIL

Heather McLaughlin, City Attorney
City of Benicia
City Hall
250 East L. Street
Benicia, CA 94510

Re: Poll Conducted by EMC Research and Research America

Dear Ms. McLaughlin:

This letter is in response to your letter to Research America and EMC Research dated October 5, 2018. In that letter, you requested two items of information. First is a list of the polling questions used by the professional polling firms for the poll in question. Second is an “itemized invoice showing the dates, times and number of calls made.” You also requested that any future “push” polls that meet the definition of independent expenditure comply with Benicia City Chapters 1.32, 1.40 and 1.42.

As I mentioned in my October 1, 2018 letter to you, the public opinion research poll referenced in your e-mail was conducted by Research America and EMC in full compliance with applicable federal, state and local laws, which do not require campaign advertisement disclaimers on telephone polls. EMC Research and Research America are professional polling companies that conduct surveys based on scientific data and modeling to provide information to campaigns about voter preferences and attitudes. They do not engage in campaign advertising communication-which is exactly what so-called “push” polls are. Contrary to local press reports, the poll at issue was not a “push” poll.

Valero, although under no legal obligation to do so, has identified itself as the entity that commissioned the poll. The purpose of the poll was to gather feedback from local voters on issues relevant to the upcoming election. It involved a robust sample methodology, designed to achieve a random sampling of likely voters from within the City of Benicia. The survey was conducted September 6 through September 20, among a random selection of256 likely voters from within the City of Benicia. This period lies outside the 45-day period referenced in Benicia Municipal Code Chapter 1.40.041.

There are no federal, State or local laws that require disclaimers on polls, whether conducted telephonically or by electronic mail. As previously noted, a recent opinion issued by the California Fair Political Practices Commission (FPPC) at their September 2018 hearing confirmed this. I Polls are not considered campaign communications or “mass mailings” and, thus, do not require campaign advertising disclosures. The Benicia Municipal Code provisions referenced in your letter do not apply to polls. Those provisions, Chapters 1.36, 1.40 and 1.42, only apply to campaign communications. As the FPPC has opined, a poll is not a campaign communication.

Because the poll in question here was not a campaign communication, the professional polling companies are under no obligation to provide you with the information you requested. Polling questions and invoices for polls that show the date, time and number of calls made are confidential, and not subject to compelled governmental disclosure. While the City ordinance may regulate disclosures for campaign communications, they do not regulate polls. Nor should they as a matter of public policy. Polls are not conducted to influence voters; rather, they are targeted to a limited cross-section of voters to form as accurate a representation of the electorate as possible.

Further, the First Amendment of the United States Constitution protects the right of those who paid for the poll to engage in political discourse. Any restrictions on this right by government are examined under an exacting legal standard that prohibits government from passing laws that impermissibly restrict political speech without a showing of a compelling interest.2 Polls are an important part of the process of determining whether and how to potentially engage in political speech. Requiring public disclosure of poll funders, questions and other details impermissibly restricts the ability of individuals to engage in political speech and association. See, e.g., Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) (on petition for mandamus, blocking discovery order seeking to compel disclosure of internal campaign materials); In re Motor Fuel Temperature Sales Practices Litig., 258 F.R.D. 407, 418 (D. Kans. 2009) (finding privilege against disclosure of internal communications regarding political activities).

This requested disclosure of information is particularly inappropriate where the City is making the request and the poll explored subject responses to statements regarding City Council candidates whose campaigns are being personally supported by current members of the Council. The City should not place itself in the position of immersing itself in the back and forth of electoral politics by attempting to force the public disclosure of confidential poll information. Nor should City resources be used to engage in these activities. These actions serve as a chill on free speech and association rights set forth in the Constitution.

For the above-listed reasons, Research America and EMC Research respectfully decline your request for further information regarding the poll. If the City chooses to issue a subpoena or take other legal action, the companies stand ready to vigorously defend their rights. Finally, since the two polling firms do not engage in campaign communications, we do not expect that any future polls will implicate the disclosure and disclaimer requirements of the Benicia Municipal Code. Please contact me immediately should you have any further questions.

Sincerely,

Gary S. Winuk

GSW:VCC

Air pollution, Air quality violations, Bay Area Air Quality Management District (BAAQMD), Valero Benicia Refinery

Valero to pay huge fines – again – for air quality violations

Repost from the Vallejo Times-Herald
[Editor: These fines are routinely written off by giant Valero as a cost of doing business.  Examples from recent years: Valero Benicia Refinery fined $122,500 in 2016.  And fined $183,000 in 2014.  IMPORTANT: Benicia Mayor Patterson and residents have repeatedly petitioned the Bay Area Air District to channel at least SOME of these fines to the affected community.  The District has suggested responsiveness, but failed to engage meaningfully.  Again in today’s news, the District will keep the fines for its own use, leaving the polluted community adrift in the wind (as it were).  – R.S.]

Valero paying $266,000 for air quality violation

By John Glidden, October 10, 2018 5:45 pm | UPDATED: 7:38 pm
A photo of the Valero Benicia Refinery taken at night in May 2014.

BENICIA — Valero Refining Co. will pay $266,000 to settle 22 air quality violations that took place mostly in 2016 at the Valero Benicia Refinery, the Bay Area Air Quality Management District (BAAQMD) announced this week.

“This settlement helps to ensure that Valero remains vigilant in running its operations according to all air quality regulations,” said Jack Broadbent, executive officer of BAAQMD, in a district news release. “Our air district enforcement and source testing teams, together with a variety of other tools are in place to ensure refineries comply with their permits.”

Eleven of the violations were for exceeding emission limits, with nine of them being detected by monitors which measure emissions from refinery equipment, the air district said in a news release. Officials said the other two violations were discovered by a source test conducted by the facility’s contractor and by a BAAQMD inspector.

Seven additional violations were recorded for hydrocarbon leaks from storage tanks or lines, while two violations were given because there were errors in an inspection database which resulted in missed leak inspections for valves omitted from the database, officials explained in the same release.

Single violations were assessed for a missed calibration on an emissions monitor and a failed monitor accuracy test, officials said.

The Air District said in the same release that violators must respond to a violation notice within ten days and further submit a detailed description of what actions they will take to correct the problem.

Officials said the settlement funds will be by the air district to fund future inspection and enforcement activities.

A representative with Valero couldn’t be reached for comment prior to press deadline.

"Push poll", Benicia City Attorney Heather McLaughlin, EMC Research, Kari Birdseye, Legal action, Lionel Largaespada, Local elections, Local Regulation, Research America, Steve Young, Tom Campbell, Valero Benicia Refinery

Campbell wanted to sue immediately over push poll; Largaespada defends himself

Repost from the Vallejo Times-Herald
[BenIndy Editor: I believe that no current Benicia City Council candidate was involved in nor favors push polls. But the reason for Valero to smear one candidate and lift another is clear. Valero can’t be unaware that Mr. Largaespada stood firm with Valero and against the will of the people during the controversial Crude by Rail debate in 2014-16. Planning Commissioner Kari Birdseye voted with the unanimous decision to stop Valero “in its tracks.” Valero has every reason – and every right – to openly and fairly voice its preference. But to secretly fund dirty tricks to achieve its goal is a tactic that should be soundly criticized by all candidates. I’ll vote for Birdseye, and hope that our next Council will include 3 women for the first time ever.  – RS]

Campbell sought tougher response to push poll incident

By John Glidden, October 8, 2018 at 5:51 pm
Tom Campbell

BENICIA — Days after the Benicia City Council met in closed session directing City Attorney Heather Mc Laughlin to seek answers about a controversial polling incident, speculation swirled on which councilor voted against the move.

Councilman Tom Campbell confirmed he was the lone “no” vote in the Oct. 2 closed session decision.

“I wanted a stronger response than the rest of the council members wanted,” Campbell explained in an email to the Times-Herald.

The City Council authorized Mc Laughlin to contact Research America and EMC Research about their respective roles in a series of phone calls made to residents in September. Research America conducted the polling, which included questions about the city’s current council candidates.

The polling firm said EMC hired them, and just last week, Mc Laughlin confirmed that the Valero Benicia Refinery sponsored the entire polling.

Steve Young

Vice Mayor Steve Young, and other residents, have stated they received one of the survey calls which allegedly smeared council candidate Kari Birdseye while championing fellow council candidate Lionel Largaespada. Young called the survey a “push poll,” a type of survey meant to influence voters instead of gathering objective survey information from those called.

Councilors expressed concern that since the survey calls didn’t provide a “paid for by” disclaimer at the end of the phone calls the survey may have violated the city’s municipal code. A claim the polling firms have denied through their lawyer.

Campbell, who led the charge for the present campaigning ordinance in the municipal code, said he wanted immediate action in response to the poll.

“What I wanted was that the council authorize the city attorney to immediately go to Superior Court, file an injunction/lawsuit against the pollster and subpoena the records from EMC on who paid for it, how much, and what the exact questions were,” Campbell wrote in the same email. “The council took a little softer line than I wanted. I felt we had to act now to obtain the information as quickly as possible before the Nov. election.”

Lionel Largaespada

Largaespada issued a statement on Sunday in response to the news that Valero paid for the polling.

“I was very disappointed to learn that Valero sponsored the recent polling in Benicia,” he wrote in an email to this newspaper. “As I previously stated, I was not involved in any way with this polling effort, and I did not know who was conducting it.

“As I also stated, push polling, or any misrepresentation of a candidate’s stance or ideals is not something that I support in any way,” he added. “I hope that Valero will provide the content of the poll so that this issue can be resolved.”

Largaespada, who has expressed support in the past for the “crude by rail” initiative, also defended himself from comments made online by residents.

“To the commenters on Nextdoor that have suggested that I am in favor of this type of tactic, or that I am a ‘tool’ or ‘mouthpiece’ for Valero — these comments are completely false and without merit,” he wrote. “I understand that issues involving Valero are polarizing in our community, but to say that because someone believes differently than you do about an issue makes them a ‘tool’ for an entity is nothing more than name-calling.”

Mc Laughlin was also tasked by the council to obtaining a copy of the poll questions. In a letter she sent Research America, and EMC, last Friday, she gave them 72 hours to send a copy of the questions to her office.

Mc Laughlin said she didn’t have a copy of the poll questions as of Monday afternoon and was told she would get a response to her request on Wednesday.

Keeping Watch on Earth News

NY Times: U.N. Dire Climate Warning

Repost from The New York Times

Dire Climate Warning Lands With a Thud on Trump’s Desk

By Mark Landler and Coral Davenport, Oct. 8, 2018
President Trump on Monday in Orlando, Fla., where he spoke to a convention of police chiefs. He did not mention a United Nations report on the threat of climate change. Credit Tom Brenner for The New York Times

WASHINGTON — A day after the United Nations issued its most urgent call to arms yet for the world to confront the threat of climate change, President Trump boarded Air Force One for Florida — a state that lies directly in the path of this coming calamity — and said nothing about it.

It was the latest, most vivid example of Mr. Trump’s dissent from an effort that has galvanized much of the world. While the United Nations warned of mass wildfires, food shortages and dying coral reefs as soon as 2040, Mr. Trump discussed his successful Supreme Court battle rather than how rising seawaters are already flooding Miami on sunny days.

The president’s isolation is not just from the world: In California, New York, Massachusetts and other states, governments and companies are pushing ahead with regulations and technological innovations to reduce greenhouse gas emissions.

That bottom-up activism is a source of hope for those who have watched in despair since last year when Mr. Trump declared he would pull the United States out of the Paris climate accord. But experts say it is no substitute for the world’s largest economy, and second-largest emitter of carbon dioxide, turning its back on the fight.

“You have this enormous discrepancy between the White House and, essentially, everyone else,” said Johan Rockström, the director of the Potsdam Institute for Climate Impact Research in Germany. “The leadership in Washington is really moving against the whole agenda.”

The United Nations report paints a far more dire picture of the immediate consequences of climate change than previously thought and says that avoiding the damage requires transforming the world economy at a speed and scale that has “no documented historic precedent.”

It describes a world of worsening food shortages and poverty; more wildfires; and a mass die-off of coral reefs as soon as 2040 — a period well within the lifetime of much of the global population.

Among climate-change scientists, there were increasing fears that Mr. Trump’s withdrawal from the Paris accord, which at first seemed a lonely act of defiance, may embolden other countries to leave it as well.

In Brazil, voters are on track to elect a new president, Jair Bolsonaro, who has vowed to withdraw his country, the world’s seventh-largest emitter of greenhouse gases, from the pact.

Mr. Trump’s announcement last year prompted a show of solidarity from the other 194 countries that signed the accord, not to mention American political and business leaders who rallied under the slogan, “We are still in!” But to populists like Mr. Bolsonaro, Mr. Trump’s demands that the United States be given a better deal could prove appealing.

“To the extent that we get these narrow-minded, so-called nationalist, populist leaders, we could have a big problem,” said John P. Holdren, who served as President Barack Obama’s chief science adviser. “Brazil, with its huge area of forests, is going to suffer terribly from climate change.”

A wildfire burning last year near Casitas Springs, Calif. The United Nations report warns of mass wildfires, food shortages and dying coral reefs as soon as 2040. Credit Hilary Swift for The New York Times

Beyond the domino effect, Mr. Holdren, who is now a professor at Harvard’s Kennedy School, said there were other immediate costs to what he called “the squandering of U.S. leadership on an acute global issue.”

Mr. Trump, who has mocked the science of human-caused climate change, cut the American contribution to a global fund that supports climate mitigation and assistance efforts in developing countries by two-thirds, to $1 billion. He has tried to cut government funding of climate-related research — an effort that Congress has so far resisted.

The White House issued no public response to the United Nations report, which was issued Monday in South Korea at a meeting of the Intergovernmental Panel on Climate Change, a group of scientists convened by the United Nations to guide world leaders.

“Not today,” said Bill Shine, the White House communications director. “It’s a Kavanaugh night.”

After Mr. Trump returned Monday from Orlando, Fla., where he spoke to a convention of police chiefs and referred to the hurricane now approaching that state, he attended a White House ceremony to swear in Judge Brett M. Kavanaugh as an associate justice of the Supreme Court.

Following the ceremony, Lindsay E. Walters, a deputy press secretary, said, “The United States is leading the world in providing affordable, abundant and secure energy to our citizens, while protecting the environment and reducing emissions through job-creating innovation.”

She noted that carbon dioxide-related emissions declined 14 percent in the United States from 2005 to 2017, while they rose 21 percent globally during the same period.

On Saturday, an American delegation in South Korea joined more than 180 countries in accepting the report’s summary for policymakers, but a statement from the State Department added that it “does not imply endorsement by the United States of the specific findings or underlying contents of the report.”

The report “is quite a shock, and quite concerning,” said Bill Hare, an author of previous Intergovernmental Panel on Climate Change reports and a physicist with Climate Analytics, a nonprofit organization. “We were not aware of this just a few years ago.”

The authors found that if greenhouse gas emissions continue at the current rate, the atmosphere will warm by as much as 2.7 degrees Fahrenheit, or 1.5 degrees Celsius, above preindustrial levels by 2040.

The Paris accord set a goal of preventing warming of more than 3.6 degrees above preindustrial levels — long considered a threshold for the most severe social and economic damage from climate change. But the heads of small island nations, fearful of rising sea levels, had also asked scientists to examine the effects of 2.7 degrees of warming.

Without aggressive action, many effects that scientists once expected to happen further in the future will arrive by 2040, and at the lower temperature, the report shows.

“It’s telling us we need to reverse emissions trends and turn the world economy on a dime,” said Myles Allen, an Oxford University climate scientist and an author of the report.

Flooded homes last month in Lumberton, N.C., after Hurricane Florence hit. Credit Johnny Milano for The New York Times

To prevent 2.7 degrees of warming, the report said, greenhouse emissions must be reduced by 45 percent from 2010 levels by 2030, and by 100 percent by 2050. It also found that use of coal as an electricity source would have to drop from nearly 40 percent today to 1 to 7 percent by 2050.

“This report makes it clear: There is no way to mitigate climate change without getting rid of coal,” said Drew Shindell, a climate scientist at Duke University and an author of the report. Mr. Trump has vowed to increase the burning of coal.

“It makes me feel angry when I think about the U.S. government,” Mr. Shindell said. “My kids feel like it’s their future being destroyed.” He watched as the grounds of his son’s high school in Durham, N.C., and the roads around it flooded last month after Hurricane Florence.

Dr. Allen said there was little question the report will be ignored in Washington. “The current administration doesn’t seem interested in it all,” he said, although he added that as a scientist, he takes the long view.

“One way or another,” he said, “the facts do win out.”

Mr. Trump encouraged scientists recently when he nominated Kelvin Droegemeier, a well-respected meteorologist who is an expert on extreme weather, to lead the White House Office of Science and Technology Policy. The post had been vacant since Mr. Trump took office.

But it is unlikely that Mr. Droegemeier will change the president’s views on climate change, and other influential aides are hardly going to challenge him.

For example, the Trump administration’s counterterrorism strategy, released last week, made no mention of climate change as a cause for extremism. The Obama administration regularly cited it in threat assessments because of its effect on migration and the competition for food and water.

“I don’t think climate change is a cause of international terrorism,” said the national security adviser, John R. Bolton.

For all that, scientists said that they saw a few rays of sunshine amid the clouds. A Democratic takeover of the House would raise the odds that Congress would continue blocking cuts to research. And despite his criticism of the Paris accord as “very unfair” to the United States, Mr. Trump has left the door open to staying in the deal, if the terms were improved.

“I have been of the opinion all along that we can definitely see the U.S. back in the Paris agreement, even under Trump,” Mr. Rockström said.

Legally, he noted, the United States cannot formally withdraw from the pact until 2020, and the agreement’s terms are voluntary.

“He can sit there in the White House and draw up his own plan,” Mr. Rockström said.

Mark Landler reported from Washington, and Coral Davenport from Incheon, South Korea. Reporting was contributed by Somini Sengupta.
A version of this article appears in print on Oct. 8, 2018, on Page A1 of the New York edition with the headline: Climate Warning Hits Silent Wall On Trump’s Desk.