A8 THE BULLETIN • WEDNESDAY, MARCH 24, 2021
EDITORIALS & OPINIONS
AN INDEPENDENT NEWSPAPER
Heidi Wright
Gerry O’Brien
Richard Coe
Publisher
Editor
Editorial Page Editor
Congress should
let pot businesses
access banking
L
egal businesses in the marijuana industry still don’t have
the same rights to use banks as other businesses. This has
gone on too long. Congress should make the change.
U.S. Rep. Earl Blumenauer, D-Or-
egon, has reintroduced a bill in Con-
gress to allow them to access banking.
What does it mean when you can’t
use a bank for your business? Cash.
Lots of cash.
Who likes cash? Crooks.
It makes the employees of the
businesses and the businesses un-
necessarily appetizing to criminals.
Willamette Week reported “cannabis
dispensaries in the Portland metro
area reported being robbed, burglar-
ized or looted more than 100 times
between March of 2020 and 2021.”
One employee was killed in Decem-
ber in an armed robbery.
Similar bills have passed the House
in recent years. But they had been
held up in the Senate by Republican
leaders. For instance, one Republican
proposal also would have included
a 2% THC limit on state marijuana
programs if they didn’t already have
their own limits. THC limits have
proven difficult to enforce.
We asked Rep. Cliff Bentz, R-Ore-
gon, if he backs the bill. His spokes-
man told us he will give the bill full
consideration should it come before
the Judiciary Committee and to the
House Floor for a vote.
With the change in the mix in the
Senate, Blumenauer’s bill has a better
chance of passing Congress. Some
version of it should.
County’s updates to
wildlife habitat will
impact development
M
ore people in Deschutes
County means deer, eagles
and elk can have a more
challenging time. Human develop-
ment is not always animal friendly.
The county’s information about
the ranges of deer and elk had been
out of date. Much the same was true
for the homes of bald and golden ea-
gles. But thanks to a grant from the
Department of Land Conservation
and Development, the county has
updated its wildlife inventories. That
can make a difference in how future
development in the county will oc-
cur. The Deschutes County Plan-
ning Commission is expected to get
a presentation about the new data
on Thursday.
When the county got started, it
had to choose what wildlife maps
to update. It couldn’t do everything.
For instance, a county advisory
committee decided not to look at
deer migration corridors. And it
also decided not to look at the hab-
itat of threatened and endangered
species such as the spotted frog, be-
cause those already get protection.
It picked deer and elk winter range
and the nesting sites of bald and
golden eagles.
The results in general mean ex-
panded areas identified as needing
protection. For instance, the pro-
posed, revised deer winter range
went from 315,847 acres to 503,979
acres. Some of the data was collected
by collaring deer and tracking their
movements. Similarly the revised
winter range for elk would grow to
411,190 acres. Sensitive habit for the
eagles would grow enormously from
2,297 acres to 344,778 acres. Maps
are available in county documents at
tinyurl.com/deereagleelk. Scroll way
down to the bottom.
The growth of these proposed re-
vised zones could impact develop-
ment. For instance, golden eagle nests
are buffered by a sensitive habitat area
with a radius of 2 miles. There are
some 103 golden eagles’ nests identi-
fied. Bald eagles get a smaller ¼-mile
radius buffer and there are some 116
bald eagle nests. Development within
such a radius triggers a review of the
potential impacts of a project under
the federal Bald and Golden Eagle
Protection Act
It does not mean that no devel-
opment would be allowed within
2 miles of a golden eagle nest or ¼
mile of a bald eagle nest. A 200-
home development in Naperville,
Illinois, recently got approval and its
boundary is within 824 feet of a bald
eagle nest — less than a ¼ of a mile.
But development in deer and elk
winter ranges and within eagle habi-
tat can mean legal challenges. So the
county’s more accurate information
for animals will translate into more
questions for humans.
Editorials reflect the views of The Bulletin’s editorial board, Publisher Heidi Wright, Editor
Gerry O’Brien and Editorial Page Editor Richard Coe. They are written by Richard Coe.
Water, sanitation key to plight of women
Editor’s note: The following is part of an ongoing,
twice a month series of columns regarding
climate change and its ramifications for Central
Oregon.
S
ociety views progress through
growth, but we are reaching the
planetary boundaries of our ex-
pansion. We need society to survive
and thrive whether it grows or not.
Our challenge is to meet the needs
of everyone within the means of the
planet.
In other words, making sure no one
falls short on life’s essentials, while
ensuring Earth’s life-support systems
remain intact. Things may look good
in the U.S. while not so spectacular in
developing countries.
Planetary boundaries: This piece
looks outside our country with a
global perspective on planetary capac-
ities, focusing on water, sanitation and
hygiene in agriculture, education and
then closer to home in changing some
of our behavior.
Doughnut economics: Kate Ra-
worth represents a novel approach
for defining preconditions for hu-
man development, modified from the
original work in Nature magazine by
Johan Rockström et al., 2009. This
approach shows how crossing certain
biophysical thresholds could have
negative consequences for humanity.
All the following have limits that,
if reached, will adversely impact our
planet: (1) climate change, (2) de-
struction of the ozone layer, (3) air
pollution, (4) acidification of the
oceans, (5) natural ecosystem con-
version to cropland, (6) biodiversity
loss, (7) overloading nitrogen (N) and
phosphorus (P) due to fertilization,
(8) chemical pollution and (9) fresh-
water withdrawals. Four of them are
already reaching dangerous limits (1,
5, 6, 7) — all four directly or indirectly
related to agriculture.
The world has now arrived in the
Anthropocene-era where human ac-
tions, above all others, have the most
profound impact on the functioning
of ecosystems. Not surprisingly, many
human impacts are generated because
of agriculture — the chief driver of cli-
mate change, land use change, biogeo-
chemical flows of N and P, biodiver-
Climate Changed
CENTRAL OREGON
CROSSROADS
By Scott Christiansen
sity loss, and depletion of freshwater
resources.
To seize a glimpse of what this re-
ality looks like, see the sobering Net-
flix documentary — David Atten-
borough: A Life on Our Planet. Then
watch Gretta Thunburg tell us why
we need, not hope, but action. If not
moved to act, then read The Terrify-
ing Warning Lurking in the Earth’s
Ancient Rock.
Feminization of agriculture: The
developing world is still heavily reliant
on agriculture for jobs and national
income. The management of rural de-
velopment and transformation is in
the hands of men, women and chil-
dren; but in a great number of devel-
oping countries, as men move out of
family farming to work in industry,
women and children tend to the ag-
ricultural tasks the men leave behind.
Many women even take on new jobs
and responsibilities and this phenom-
enon is called the feminization of ag-
riculture.
Helping women to cope: What are
some significant actions we have in
our power to immediately improve
the plight of women? Sustainable De-
velopment Goal 6 (Clean water and
sanitation) emphasizes the impor-
tance of improved water, sanitation
and hygiene for women.
For example, women are the pre-
ferred candidates for jobs in value-en-
hancing work in the agricultural
sector — like processing fruits and
vegetables — where sanitary condi-
tions associated with keeping the food
clean is often prioritized over the toi-
let facilities made available for the fe-
male employees.
Workplace hygiene is a big part of
job satisfaction.
Education is also important in
raising capacity of women to take on
these jobs and to break into manage-
ment positions. Gender-segregated
toilets in schools and factories would
have a direct effect on girls’ retention
in school and women excelling in the
workplace after graduation. See the
simple but inspiring Girl Effect video
to see what effect education and poli-
cies can have on improving the condi-
tions of girls and young women.
No loo — No I do. Sticking with the
water, sanitation, and hygiene theme,
the Community Led Total Sanitation
concept proposes a world free of open
defecation. Part of this movement is a
campaign in India called the ”No Toi-
let, No Bride” or “No loo — No I do,”
which promotes toilet uptake by en-
couraging women to refuse to marry
men who do not own a private toilet.
A place for advocacy. It is hard to
believe that open defecation and un-
sanitary bathrooms are so prevalent,
but both are a fact of life. In the face of
this reality, some people get fired up
to speak up, like Rose George, a tire-
less women’s advocate from Australia,
who urges development workers to
organize protests for better sanitation.
Take a longer view. It may look
like an impossible hurdle to confront
these developmental problems; how-
ever, it may be helpful to highlight
some tremendous success stories,
such as Japan’s trajectory from a coun-
try of latrines 75 years ago to a place
with the most advanced toilets in the
world. What technology!
Behavior modification. Surely,
many cannot even think of changing
their behavior, but maybe it is time to
examine the work of companies who
make bidets and NGOs that work on
behavior modification. Why? Because
getting people to move away entirely
from toilet paper will save millions
of trees and the ecosystems that they
inhabit.
Furthermore, communication
needs to highlight that companies like
Procter & Gamble, Kimberly-Clark,
and Georgia-Pacific continue to make
toilet paper from 100% virgin forest
fiber, feeding a devastating “Tree to
Toilet Pipeline.”
Scott Christiansen is an international agronomist
with 35 years of experience. He worked for USDA’s
Agricultural Research Service and the U.S. Agency
for International Development.
Businesses are losing COVID lawsuits to insurance companies
BY STEPHEN CARTER
Bloomberg
R
emember last year’s kerfuf-
fle over whether providers of
business interruption insur-
ance would have to pay when local
COVID-19 rules forced proprietors to
close? The verdict is now in ... and it
hasn’t gone well for business owners.
In fact, according to the University of
Pennsylvania Law School, which has
developed a tool to track COVID-re-
lated litigation, the insurers have over-
whelmingly won.
The controversy arose after most
state governments responded to the
pandemic with shutdown orders.
Many business owners demanded that
their insurers compensate them for
lost income, but the claims were rou-
tinely denied. Business owners sued,
and I predicted in this space that they
would mostly lose. Most business in-
terruption insurance policies simply
don’t cover pandemics.
The number of COVID-related
insurance lawsuits is in the four fig-
ures, and Penn’s database covers only
those where the defendant’s motion
to dismiss (or for summary judg-
ment) has been ruled on. Nonetheless,
the pattern is clear. Out of 187 cases
in federal court where the judge has
ruled on the insurer’s motion to dis-
miss with prejudice (meaning that the
plaintiff can’t refile the suit), insurers
have won 76% of the time. In several
more cases, the court has decreed a
narrower dismissal. In only 8% of
cases has the insurer’s motion to dis-
miss been denied.
This pattern holds whether or not
the insurance policy in question con-
tains an express exclusion for harm
caused by viruses. Plaintiffs have done
somewhat better in state courts, but
some 70% of claims have been filed in,
or “removed” to, federal court. (Why
any plaintiff would prefer federal
court is unclear, given that state courts
have long been friendlier.)
The easiest cases to dismiss have
been those where the policy excludes
coverage for closures caused by vi-
ruses. The business owners neverthe-
less argue that the state’s emergency
mandates, not the novel coronavirus
itself, forced the business to shut-
ter. That argument keeps losing. As
one federal judge put the point in
mid-March, if the shutdown orders
stemmed from the virus, the virus
was “the predominant cause that pro-
duced the loss.”
Even when the policy includes no
virus exclusion the suits tend to be
dismissed, because courts adhere to
the traditional interpretation that
business interruption insurance cov-
ers losses of income only when there
has been physical damage — such as
from fire — but not when the prem-
ises remain unharmed.
Why then so many lawsuits?
Since the 1980s, legal scholars have
generally accepted that in a world of
perfect information, few if any civil
cases would arise, because everyone
would be able to predict the winner.
Thus plaintiffs would file few lawsuits,
and those they did bring would be
settled.
But the theory doesn’t always work.
Why not? One answer, known as the
divergent expectations model, pre-
dicts that early plaintiffs might file
cases optimistically, but if they lose
more often than they win, later par-
ties who could sue on the same issue
choose not to waste the resources.
The University of Pennsylvania Law
School data tell us that this is exactly
what has occurred with business in-
terruption suits.
Filings peaked in late April of 2020,
remained high through early summer,
then tailed off rapidly. Volume during
the last week of February was about
one-fifth of the level at the height of
the pandemic.
This is consistent with the diver-
gent expectations model. Potential
plaintiffs now have more information:
They know their odds of victory are
slim.
I’m not unsympathetic to business
owners whose losses will go uncom-
pensated, but the results were pre-
dictable. Nobody truly imagines that
insurers intended to cover pandemic
losses.
True, if it were possible to circum-
vent these obstacles, a private market
in pandemic insurance would be wel-
come. Insurance has become, in the
words of the sociologist Carol Heimer,
“one of the main regulatory institu-
tions of contemporary societies.” We
tend to think of insurance as promot-
ing moral hazard, but recent literature
suggests that by providing incentives
to take precautions, insurance can ac-
tually minimize risk and enhance en-
terprise value.
So, let’s see: We have business in-
come losses due to government-or-
dered shutdowns, and nobody’s to
foot the bill unless the industry in
question has powerful friends in pol-
itics. Lawsuits are useless because in-
surance policies don’t offer coverage,
and there’s not going to be a public op-
tion anytime soon.
Is the answer just “Life is tough”?
Let’s hope not. In a perfect world,
businesses would direct their law-
suits against the entity that caused the
losses — in this case, arguably the gov-
ernment. Alas, those lawsuits would
likely be barred by sovereign immu-
nity. That’s too bad. I’d dearly love to
see the government’s claim of “neces-
sity” fully ventilated in court.
Stephen Carter is a professor of law at Yale
University.