Of Covid Mandates and Legal Liabilities

Last month President Biden announced an initiative that he asserts will ‘stop’ the SARS Cov-2 virus. A scientifically implausible objective, his outline included a plan to require all private businesses with 100 or more employees to ensure their employees are fully vaccinated or require weekly testing. The mandates are curious because they burden businesses in unprecedented and legally nebulous ways.

Using a mechanism referred to as an Emergency Temporary Standard through the Occupational Safety and Health Administration (OSHA), the administration asserts mandating vaccines will stop the transmission of the virus. However, the vaccine was neither developed for, nor indicated to arrest transmission of the virus. According to the FDA website, the vaccine is intended to “…reduce severe illness, hospitalization and death.”

So why might the Administration be issuing mandates for a vaccine that cannot achieve their stated purpose of ‘stopping the virus”? Consider possible reasons by looking through the lens of liability.

Cross my heart and hope to die.

As business-minded leaders do in the face of government overreach, a response must be developed that helps create certainty for the business. To get there in this case, one must review the most fundamental aspect of a mandate… if the business requires the action as a condition of employment, the business owns the consequence of what happens as a result. Understanding the business of vaccine liability may help a business determine whether it is in its best interest to accept the premise of the Biden Administration mandate, or perhaps consider other strategies, including legal challenges.

An important element of the liability relating to vaccines is whether the individual receives the Emergency Use Authorized (EUA)-version of the vaccine, or the newly FDA-approved, branded-version known as Comirnaty. While there is no difference in the actual drug in the syringe, there are differences in the liability protection offered under EUA for those who manufacture, distribute or in some way deliver the vaccine, compared to the FDA-approved Comirnaty.

According to the Congressional Research Service, “…in order to encourage the expeditious development and deployment of medical countermeasures during a public health emergency, the Public Readiness and Emergency Preparedness Act (PREP Act) authorizes the Secretary of Health and Human Services (HHS) to limit legal liability for losses relating to the administration of medical countermeasures such as diagnostics, treatments, and vaccines.”

In a declaration effective February 4, 2020, nearly six weeks before the U.S. lock-downs, the HHS Secretary invoked the PREP Act and declared Coronavirus Disease 2019 (Covid-19) to be a public health emergency warranting liability protections for covered countermeasures inclusive of the available vaccines. According to the current PREP ACT, the protection against liability reaches into 2025.

Ummm...

All state and local governments, medical providers and related manufacturers and distributors of modalities for treatment of Covid-19 were exempted from liability. So for anyone who receives the EUA- version of the vaccine, which as of this writing is still the only version available in the U.S., one has no recourse from a liability perspective, except in very specific and limited circumstances should one experience an adverse event or die. However, once FDA-approved and sold under the brand name Comirnaty, liability is handled differently. Comirnaty is currently only available in Israel.

Under normal circumstances, the National Vaccine Injury Compensation Program (VICP) provides compensation for injuries caused by most vaccines routinely administered in the U.S., such as childhood vaccines and non-pandemic seasonal influenza vaccines.

Enter mandated businesses. Once a vaccine is mandated by a private business, an entity not outlined and protected under the PREP Act, nor protected once a branded drug is available on the market, liability protection seemingly does not  exist for businesses.

Looking beyond the PREP ACT, consider the long-term efficacy data currently available. Since vaccines have only been available for a relatively short time, long-term data is simply unknown. However, that doesn’t mean the potential adverse events are not a liability for which a mandated company must model and prepare.

Consider the language from the FDA’s website, pertaining to long-term efficacy of the FDA-approved Comirnaty regarding Myocarditis and Pericarditis.

Additionally, the FDA conducted a rigorous evaluation of the post-authorization safety surveillance data pertaining to myocarditis and pericarditis following administration of the Pfizer-BioNTech Covid-19 Vaccine and has determined that the data demonstrate increased risks, particularly within the seven days following the second dose. The observed risk is higher among males under 40 years of age compared to females and older males. The observed risk is highest in males 12 through 17 years of age. Available data from short-term follow-up suggest that most individuals have had resolution of symptoms. However, some individuals required intensive care support. Information is not yet available about potential long-term health outcomes. The Comirnaty Prescribing Information includes a warning about these risks.

Add to this, we now believe the SARS CoV-2 virus was modified in a Chinese lab and the liability issues are more nebulous. A recently exposed a 2018 grant proposal submitted by Peter Daszak of the Eco Health Alliance, to DARPA, the Pentagon’s research and development arm. The proposal sought funding to engineer a Furin Cleavage site (FCS) into a beta coronavirus. The FCS was intended to increase the virulence of the virus in humans. DARPA deemed it too dangerous and denied the grant.

A year later, in 2019, a beta coronavirus virus with a FCS shows up having potentially ‘leaked’ from a Wuhan lab at which Daszak was coincidently using National Institute of Health (NIH) funding to make gain-of-function modifications to beta family coronaviruses. A significant percentage of the spike protein from the original strain of SARS Cov-2 are in the vaccine now being mandated. What other enhancements were made to that virus and inadvertently stitched into the vaccine? The answers are presently unknown.

Companies must decide whether mandating the vaccine for their most valuable asset, their employees, is a sound business decision. Can businesses confidently assert that without a legal fight, they will not have some liability in the face of potential short and long-term health issues associated with the currently available vaccine?

Keystone Pipeline Firm Sues Feds for $15 Billion

Back when Biden cancelled the Keystone XL pipeline, we mentioned the possibility that TC Energy, the Canadian energy firm which owned and operated Keystone, might ultimately sue the U.S. government for damages. Well it looks like they're going to do just that:

In a statement on July 2, [TC Energy] said it had filed a notice of intent with the State Department to begin a legacy North American Free Trade Agreement (NAFTA) claim under the U.S.–Mexico–Canada Agreement. The company said it aims to “recover economic damages resulting from the revocation of the Keystone XL Project’s Presidential Permit,” adding that it suffered a loss of more than $15 billion “as a result of the U.S. Government’s breach of its NAFTA obligations.”

Killing the XL has meant the loss of thousands of jobs on both sides of the border; it has meant that oil and natural gas is now being transported by rail, which is both more dangerous and more carbon intensive, and now it might end up costing American taxpayers a few billion dollars. Who, exactly, has benefited from this idiotic move?

Oh, right -- the activists.

 

The Electric-Vehicle Booglaoo

Lawrence M Friedman, an expert in legal history and property law, was one of my favorite law professors. As a student at the University of Chicago and its law school, he had been part of the Second City cast with Elaine May and Mike Nichols, and it you think there’s no way someone can make the subject of property law engaging, you haven’t had a class with Professor Friedman. An author of a number of books (including fiction) he said something in his work, “The Horizontal Society,” which strikes me as particular appropriate as the Biden administration rolls out its fantasy energy and infrastructure plans:

The average citizen, who has no idea how... a refrigerator works. still feels that scientists, if they worked hard enough, could cure AIDS or the common cold, or get electric power out of turnip juice, or send a satellite zooming off to Pluto.

No better example of this sort of fantasy thinking can be found in the plan to transform the auto industry. And no better example can be found of the way lunatic ideas and the greedy grab by myriad interests for federal funds for ridiculous projects can be found than this one.

Like plugging in a toaster!

On March 29 something called the Alliance for Automotive Innovation , an alliance of auto manufacturers, supplies and the United Auto Workers wrote to the President  supporting the shift to electric-drive vehicles. Like courtiers praising the emperor’s new clothes, the Alliance dubs the Biden plan a “bold, comprehensive vision and innovation that will place the U.S. at the forefront of creating a cleaner future for motor vehicle transformation.” 

Then it goes on to the cost (certainly just a down payment  for something that will cost even more). It turns the notion of supply and demand on its head, seeking funds to first create demand and then to supply the products for the demand they just created. It is slathered with blather like “we need a comprehensive plan that takes present market realties [only about 2 percent of 14.5 million worth of new vehicle sales were for electric vehicles] as well as the on-going investment and innovation in internal combustion engine (ICE) technologies."

Ignoring the spin we see a bottom line that stretches out endlessly and pays off all the Democrat interest groups it can possibly grease. Here's what they want on the demand side: 

Increasing demand, however, will not increase the supply without yet more federal largesse. So here’s what they want to do to increase the supply:

  1. Expand tax credits to allow manufacturers  to “retool, expand, or build new facilities for the manufacturing, recycling, of these vehicles, batteries, fuel cells, components and infrastructure."
  2. Expand the domestic manufacturing conversion grant program to accelerate  the needed technologies.
  3. Develop (presumably through more federal money or tax credits)   extraction, processing and recycling of the critical minerals needed for these vehicles (now mostly imported from China).
  4. Research and development grants  for new innovation “that will make the zero-emission future a reality."
  5. Grants and loans  for advanced technology.
  6. Training and development programs to “upskill” the work force.
  7. New investment tax credits for hydrogen production and storage.
  8. Grants to “reequip, expand, and establish facilities for the manufacturing of clean energy technologies and components."

The cost of these ambitious efforts is predicted at the very end of this wish list: $4-12 billion in the tax-credit expansion alone and another $12-25 billion for manufacturing conversion. I don’t think this covers more than a fraction of what this proposal suggests. Do you?

No fumes, no worries, no explosions!

On the other hand, I've reread it several times, and besides scratching my head at the new economics in which we are asked to create and greatly fund a non-existent demand to deal with a non-existent problem ("climate change") and then to create a fount of new funds to meet this confected demand. Puzzling.

More puzzling in this paean to electric vehicles is the absence of the need for more electric power production. Not one word of it. Toyota’s president  is one auto manufacturing leader skeptical of the entire notion of massively increasing electric vehicles:

Toyota President Akio Toyoda said Japan would run out of electricity in the summer if all cars were running on electric power. The infrastructure needed to support a fleet consisting entirely of EVs would cost Japan between ¥14 trillion and ¥37 trillion, the equivalent of $135 billion to $358 billion, he said.

“When politicians are out there saying, ‘Let’s get rid of all cars using gasoline,’ do they understand this?” Mr. Toyoda said Thursday at a year-end news conference in his capacity as chairman of the Japan Automobile Manufacturers Association.

Toyota is a leader in hybrid autos and has no small experience to back up their president’s concerns.

In what was undoubtedly a rare moment of reality, the Washington Post  acknowledged the increased amount of electric energy these “clean cars” need is energy produced almost entirely by fossil fuels now that in this country atomic energy has been so reduced.

How much more electricity will be needed for electric cars? About 150,000 electric vehicles were sold in California in 2018 — 8 percent of all state car sales. The state projects that electric vehicles will consume 5.4 percent of the state's electricity, or 17,000 gigawatt hours, by 2030.

California, for one, doesn’t have sufficient capacity to meet existing demand, and there are no plans I know of in the works to increase it. 

There’s one more thing radically wrong with this blinkered notion that substituting more expensive transportation and servicing it when conventional transportation and the means to fuel it is cheaper, more readily available, and requires no enormous outlays to continue.

Unless someone comes up fast with a way to create electric power for electric vehicles from turnip juice, a transportation policy that has at its core an enormous switch to electric vehicles without a substantial increase in electric power production is, on its face, insane.

The Blue Wave that Wasn't

There's a lot about this 2020 election which remains uncertain, but one thing that we know for sure is that the projected Blue Wave, which had the Democrats retaking the Senate and making double digit gains in the House, didn't happen. Thus far they've only picked up one senate seat, and even if they win the two run offs in Georgia -- an outcome that is not at all certain -- the best they can hope for is a 50-50 tie, with the vice president as tie-breaker.

And that's not even taking into account the possibility that West Virginia's Joe Manchin, the last of the Blue Dog Democrats, finally accepts that there's no longer a place for him in AOC's party and decides to cross the aisle.

In the House, Republicans have already picked up eight seats. If GOP candidates win all of the races where they're currently leading, they will have 213 seats (with 218 a majority), a far cry from the 196 GOP seats FiveThirtyEight projected just before the election. As Jim Geraghty pointed out, "[I]f ten Democratic members got stuck in traffic or on a delayed flight, Democrats would temporarily not have a majority in the chamber."

Party leadership is so anxious about this that Nancy Pelosi and Steny Hoyer are reportedly pressuring members not to accept positions in a Biden administration if they're offered, for fear that it would whittle away at their already razor thin majority.

This isn't the type of dominance which the Democrats had been banking on, and it goes a long way towards undermining their boldest electoral promises. Consequently, it wasn't surprising that stocks fell for so-called renewable energy firms in the days following the election, as the market reacted to the improbability that the left would be able to implement their environmental agenda in any permanent way.

First Solar, a manufacturer of solar panels, dropped 8.6%, while home solar provider SunPower fell 2.8%. SunRun, another provider of residential solar, closed flat after declining earlier, and fuel cell maker Plug Power slipped 2%. All have outperformed the broader market this year, with the solar power companies in particular gaining momentum in recent months as the polls swung in favor of Joe Biden in the presidential race and Democratic Senate candidates.

Which isn't to say that a President Biden couldn't do a lot of damage on his own to the economy overall, the oil and gas industry specifically, and to the environment ultimately. He is reportedly already planning to create a White House National Climate Council and embed climate specific offices in all (or most) executive departments.

But without the senate, with a precarious majority in the House, and without the backing of the Supreme Court, a Biden Administration would be prevented from sweeping changes. We shouldn't stop fighting, but we should also thank heaven for small favors.

Gettysburg, 2020

On three hot days in early July, 1863, Robert E. Lee's Army of Northern Virginia and the federal Army of the Potomac under George Meade collided, almost accidentally, at a small town in southern Pennsylvania called Gettysburg. The result was an epic struggle that cost the lives of thousands of soldiers on both sides and determined the course of the American Civil War.

Gettysburg was the high-water mark of the Confederacy, which effectively ended with the near-suicidal Pickett's Charge, a stunning blunder by Lee who ordered his troops to march across a field and into the teeth of the Union rifles and cannons. The South never seriously threatened the North again, but there was even worse news for the rebels to come: at the same time Gettysburg was being fought Ulysses S. Grant was capturing the seemingly impregnable fortress of Vicksburg in Mississippi. Soon enough, Grant would be on his way east, to finally put the insurrection of the Southern Democrats down.

Once again, Pennsylvania finds itself at the center of our current Cold Civil War, which all year has been flickering hot. The Keystone State is the lynchpin of both President Trump's and Joe Biden's electoral-college strategies, and its 20 electoral votes may well prove to be dispositive at the end.

Going into today's vote, this is what my electoral map looks like:

Trump won Pennsylvania's 20 electoral votes by just 44,000 votes in 2016, which presaged his wins in Michigan and Wisconsin and his narrow defeat in Minnesota. The state's rabid leftist attorney general, Josh Shapiro, has already declared that Biden will win -- by any means necessary:

To that end, look for typical Democrat chicanery in Philadelphia and Pittsburgh, which is reportedly already going on. The polls from the ferociously anti-Trump media have been designed to discourage Republican voters. Going into the vote today, if you believe what you read in the newspapers and see on television, things look bleak for Trump -- and this despite the fact that he's running against a senile, corrupt old man who is simply being used by the Democrats in order to install the Manchurian Candidate, Kamala Harris.

"Bayonets!"

Things looked bleak for the 20th Maine Volunteer Infantry Regiment at Little Round Top on the second day at Gettysburg. Defending the hill, his men out of ammunition, Col. Joshua Chamberlain did the only thing he could in the face of an advancing Alabama regiment. "Bayonets!" he shouted and led his men down the hill to scatter the startled Confederates and save the day for the Union.

The radical Democrats have gambled everything on Campaign 2020. They are out and proud as the anti-American Party, the party of rioters, the party of impeachment, the party of the Russian collusion hoax, the weaponizers of the Covid-19 panic. From the moment Trump won election four years ago, they have waged unceasing war on him, on our political system, and our country.

Gettysburg ended on July 3. The next day, the torn nation defiantly celebrated the anniversary of its independence.

It's time to save the Union once more. Vote.