Joseph Krist

Publisher

JACKSON, MS WATER

In October we documented the issues contributing to the unacceptable situation confronting the City of Jackson, MS and its efforts to run a municipal water system. Now, the US Department of Justice (DOJ) has announced an agreement with the city in litigation it had launched against the city over the management and operations of the water system. DOJ proposed appointing an outside expert to oversee operations until the system is reorganized and major repairs can be made. This is something which was done in Birmingham, AL when its water and sewer system dealt with bankruptcy.

Earlier this year, $5 million was provided by the U.S. Army Corps of Engineers through the Infrastructure Investment Jobs Act (IIJA). The state’s congressional delegation successfully included $20 million in supplemental appropriations in Congress’ Continuing Resolution on September 30. These funds will come directly to the city of Jackson for water infrastructure projects along with $4M in State and Tribal Assistance Grants through the Environmental Protection Agency (EPA).  The city also has applied for funding under the American Rescue Plan Act (ARPA) and match funding through the Mississippi Municipality & County Water Infrastructure Grant Program (MCWI) totaling over $71 million.

The outside manager has been appointed. Under the agreement, the interim manager would operate the city’s public drinking water system to bring it into compliance with federal and state laws, oversee the city agency responsible for billing and carry out improvements to the system.

MOBILE TRANSIT PROJECT

The Alabama Department of Transportation (ALDOT) will move forward with the Mobile River Bridge and Bayway Project, a project which has been mired in controversy over the funding of the project and costs to drivers. Now, ALDOT is moving forward with this project, utilizing funds from the $125 million federal INFRA grant as well as a commitment of at least $250 million in State funding. ALDOT will continue to pursue funding opportunities with the U.S. Department of Transportation but will not delay moving forward pending future grant awards.

The project will employ the design/build strategy. Those seeking the contract will have to provide a new Mobile River Bridge and a new Bayway. The project will have to provide for four non-toll alternatives.

This project will rise and fall over toll revenues from this facility. The plan will be based on electronic toll options of $2.50 or less for passenger vehicles, and $18.00 or less for trucks. An unlimited use option for $40 per month, which is under $1 per trip for daily commuters between Mobile and Baldwin Counties will tamp down opposition to the project. Tolls would significantly higher for customers paying in cash.

While the project will be constructed by a private entity, it will be owned and operated by the State of Alabama, with no private concessionaire. The project, as proposed, includes the construction of a new 215-foot-tall Mobile River bridge, and a new 7.5-mile Bayway between downtown Mobile and Daphne, along with the demolition of the existing Bayway. The entire project, without receiving additional grants, relies heavily on financing that includes $1.2 billion through bonding and another $1.1 billion through federal loans under the TIFIA program repaid through revenues generated by tolling.

The movement on the plan represents a turnaround in the state consensus which existed in 2019 when a proposed P3 for this project was proposed. Opposition weakened support at the statehouse but the access to federal funding and limitation of tolling to this facility has led the Governor to reverse and announce support for the project.

For bidding purposes, the project is in two parts – the bridge and the highway. Bids are due on December 21.

INFRASTRUCTURE TERROR

For half a century, the electric power grid has presented a real source of concern to those concerned with terrorism. The very essentiality of those physical assets combined with their locations in remote areas raise the level of concern. Fortunately, there have not been many incidents and the impacts have been limited. Recent events however, have heightened concerns about the vulnerability of the nation’s electric grid. As the country moves towards greater and greater dependence upon electricity, that vulnerability becomes more and more of a serious issue.

Two power substations in Moore County, NC were damaged by gunfire on last weekend in what they believe was an “intentional” attack on the power grid. The damage to the transmission equipment cut power for some 45,000 customers. The attack comes some 30 years after the issuance of reports from the federal government detailing the concerns about grid vulnerability. The equipment in question is the type of facility which one finds all over rural America.

The incident in North Carolina will raise a variety of questions about the location of these facilities and their true level of vulnerability. This incident follows on the heels of news that the federal government has acknowledged that “Power companies in Oregon and Washington have reported physical attacks on substations using hand tools, arson, firearms and metal chains possibly in response to an online call for attacks on critical infrastructure.  The attacks are attributed to “violent anti-government criminal activity.”

These events are the latest iteration of a long-term conflict based on the issue of federal land management.  That discontent has manifested in other violent confrontations with law enforcement but the new tactics of shooting out necessary electric infrastructure are problematic.

NYC FINANCIAL PLAN

The New York City Independent Budget Office testified this week about its analysis of the Mayor’s November Financial Plan update. IBO’s Fiscal Outlook finds the city will have a budget surplus for 2023 of $2.2 billion, a negligible deficit in 2024, followed by deficits of $3.5 billion in 2025 and $4.5 billion in 2026. (Years refer to city fiscal years unless otherwise noted.)

This incorporates IBO expectations of weak tax revenue growth, albeit higher than the mayor estimates, offset somewhat by expenses that it expects the city will incur, which are not included in OMB’s spending plan. The outyear gaps, although smaller than those estimated by OMB, are substantial and will require action by the mayor and the City Council unless revenues recover faster than expected.

The economic assumptions behind the projections are as follows. For calendar year 2022, IBO projects the New York City economy to add about 205,200 jobs as our recovery from the unprecedented job losses in the 2020 recession continues, although IBO projects that the city will still be 105,540 jobs (or 2.3 percent) below its pre-pandemic level at the end of this year. For calendar year 2023, gains slow to 44,600 jobs before bouncing back somewhat to 90,500 in 2024, 85,900 in 2025, and 82,400 in 2026. The employment recovery remains uneven among the sectors. Industries such as construction, retail trade, and leisure and hospitality are all estimated to be at less than 90 percent of their 2019 level at the end of this year. Others such as information, professional services, and health care have fully recovered to their 2019 levels.

After accounting for new needs, other adjustments, and PEG reversals, the administration, however, only achieved reductions of $705 million and $554 million in fiscal years 2023 and 2024, respectively. Out of roughly 55 mayoral agencies, only 18 achieved their PEG target in each year of the November plan.

Other findings raise concerns. Our concerns from the start of the Adams administration were about his management style and how engaged the Mayor would be with those management details. This report does not assuage these concerns. This past September, the administration issued savings targets to all mayoral agencies of 3.0 percent in fiscal year 2023, and 4.75 percent in fiscal years 2024 through 2026. The targets, known as the Program to Eliminate the Gap or PEG, were set to yield savings of $1.4 billion in 2023 and $2.2 billion in fiscal years 2024 and later. However, the administration did not meet these goals.

After accounting for new needs, other adjustments, and PEG reversals, the administration, however, only achieved reductions of $705 million and $554 million in fiscal years 2023 and 2024, respectively. Out of roughly 55 mayoral agencies, only 18 achieved their PEG target in each year of the November plan. Some of that reflects the Mayor’s approaches towards management of the workforce. The pandemic exposed how antiquated the City’s information system was (and still is) and the effort to force workers back to the office earlier than was the case for many in the private sector seems to have backfired.

The use of attrition to manage headcount is something we’ve criticized the administration for in the recent past and the impact of that method is emerging. Many of the positions which are not being filled were vacated by experienced workers. The crucial core of workers between thirty and fifty (young enough to be still engaged or too close to retirement and a pension to make a major shift) is steadily being hollowed out.

This comes as the potential budget threats from the reliance on COVID money to fund programs becomes clearer. IBO cites two examples. The Department of Education is expected to need $764 million in 2025 and $966 million in 2026 above what the mayor has currently budgeted for programmatic costs. This includes $678 million in 2025 and $881 million in 2026 if it wants to maintain services launched with federal Covid relief funds that will run out during fiscal years 2024 and 2025, such as expanded 3K. In total, these repricings result in IBO estimating higher city-funded expenditures in each year of the financial plan: $228 million in 2023, $1.1 billion in 2024, $829 million in 2025, and $928 million in 2026.

The other issue is less complex. The financial plan includes a reserve for future collective bargaining settlements as contracts with most of the city’s unions having either already expired or scheduled to do so by the end of calendar year 2023. The amount in the reserve is sufficient to provide for a settlement with a raise of 2.5 percent annually. However, given the steep rise in inflation over the past year, it is likely the unions will hold out for higher settlements, which would add to the budget gaps.

PORT AUTHORITY OF NY/NJ

Moody’s maintained a Aa3 rating with a stable outlook for the Port’s Consolidated Revenue Bonds. The rating reflects Moody’s expectation that “the Port Authority’s operating revenue will remain on a positive trend in 2023 despite a weakening economic environment supported by an expected increase in aviation revenue and a potential CPI-based toll rate increase in January 2023.”

We note that operating trends are positive as reflected by the fact that preliminary 2022 operating revenue exceeds pre-pandemic 2019 levels. The port segment has surpassed 2019 levels in 2022, traffic volumes at its bridges and tunnels have come back to 2019 levels and aviation was approaching of 2019 levels as of September 2022. The port segment has already surpassed 2019 levels in 2022, traffic volumes at its bridges and tunnels have recovered to 2019 levels and aviation is approaching 2019 levels as of September 2022. 

PATH remains the money pit it has always been although the move to hybrid and/or remote work has impacted ridership which was still only at around 58% of 2019 levels as of September 2022. Moody’s estimates that the PATH system will likely continue to generate negative EBITDA of over $300 million per year (-$382 million in 2021).

SALT RIVER PROJECT

The Salt River Project (SRP) is the largest electricity provider in the greater Phoenix metropolitan area, serving approximately 1.1 million customers. It has found itself over the last year at the center of a number of controversies including net metering, the location and expansion of gas fired facilities, and the general issue of equity. Now the utility plans to move forward in the renewable generation space.

The SRP Board of Directors announced that it approved the second phase of continued development at the Copper Crossing Energy and Research Center in Florence, AZ, which includes a utility-scale advanced solar generation facility capable of generating up to 55 megawatts (MW) of solar energy.

Historically, SRP has contracted generation from renewable resources through power purchase agreements with developers, as these entities have access to tax credits. Now with the passage of the Inflation Reduction Act, not-for-profit public power utilities like SRP are allowed to directly receive federal incentive payments for renewable projects.  As a result, this will be the first utility-scale solar asset in SRP’s portfolio that SRP self-develops, owns and operates.

Development will not occur overnight. Detailed engineering, material procurement and construction activities for the solar facility are expected to take approximately 24 months. Next year, SRP hopes to be able to move forward with a battery storage project complimenting the existing and proposed solar generation on site.

GAS TAXES

California Republican state lawmakers are offering legislation to try to temporarily suspend the state’s gas tax for a year. At 54 cents it is the highest state gasoline tax levy in the country. Bills were filed in both houses of the legislature for consideration during either a Special session or in regular session. The sponsor in the House has proposed backfilling those funds with money from the state’s general fund. That proposal comes soon after the Legislative Analyst for the state warned of a likely $25 billion budget shortfall which would effectively absorb all of the general fund’s reserves. That raises the question of whether this is a serious proposal or just grandstanding.

Hawaii’s Department of Transportation recommends “moving forward with a minimally disruptive transition to road usage charging.” Its proposal comes with a low price in comparison to some other proposals under consideration elsewhere. HDOT suggests the rate of .8 cent per mile be charged since that amount is equal to what the average gas vehicle in Hawaii pays through the gas tax. Currently, EV owners pay a $50 flat fee for registration. The mileage charge would be odometer based with calculation of the fee incorporated into the state’s annual vehicle inspection process. After California, Hawaii has the second-highest EV adoption rate in the nation. Hawaii collects 16 cents for every gallon of fuel sold, which amounted to $83 million in 2019. HDOT estimates that by 2045, the .8 cent-per-mile rate could generate over $65 million on all EVs or $100 million if levied on all vehicles.

MEMPHIS AND THE TVA

The Board of the Memphis, Light Gas and Water Board of Commissioners voted against a proposed 20 year, rolling contract with the Tennessee Valley Authority for the purchase of electricity. The contract provided for TVA base rates to decline by 3.1% and allowed MLGW to produce up to 5% of electricity independent of TVA.  The utility will continue to purchase power from TVA under an existing agreement. The proposed 20-year term appears to be as much of a stumbling block as anything else. The vote allows for new management to be in place to influence an ultimate long-term decision. New management starts in January.

Disclaimer:  The opinions and statements expressed in this column are solely those of the author, who is solely responsible for the accuracy and completeness of this column.  The opinions and statements expressed on this website are for informational purposes only, and are not intended to provide investment advice or guidance in any way and do not represent a solicitation to buy, sell or hold any of the securities mentioned.  Opinions and statements expressed reflect only the view or judgment of the author(s) at the time of publication, and are subject to change without notice.  Information has been derived from sources deemed to be reliable, but the reliability of which is not guaranteed.  Readers are encouraged to obtain official statements and other disclosure documents on their own and/or to consult with their own investment professional and advisors prior to making any investment decisions.

Joseph Krist

Publisher

NUCLEAR SUBSIDIES

The Department of Energy awarded the funding for the Diablo Canyon Power plant to Pacific Gas & Electric, which owns the nuclear facility, to help cover the cost of continued power production. The federal money follows a $1.4 billion loan from the state last month. provides about 9 percent of the state’s electricity. PG&E said the funding it had received from the state and federal governments would cover the cost of extending the license and operations of the plant. The utility said the federal money would help repay the state. There are still details to be negotiated but it is expected that the money would be distributed over four years beginning in 2023.

In Michigan, the owners of the shuttered Palisades nuclear plant announced late last week that it was denied funding from the U.S. Department of Energy’s Civil Nuclear Credit Program. No U.S. nuclear power plant has been reopened after an owner filed a formal notice — known as a letter of permanent secession of operation — to the Nuclear Regulatory Commission that it was being decommissioned, which occurred in the case of Palisades earlier this year. The decision

MTA 

The latest review of the mass transit situation in NYC comes from the NYC Independent Budget Office (IBO). As of this fall, ridership on public transit (subway, buses, and commuter rails) hovers around two-thirds of its pre-pandemic rate, while tolled crossings on bridges and tunnels have recovered to pre-pandemic levels. Ridership is now expected to reach just 81 percent of pre-pandemic levels by the end of 2026.

As a result of the revisions made in July, farebox revenues are expected to only make up about 25 percent of the authority’s $19 billion in annual revenues over the next several years—up from 17 percent during 2020 and 2021—but considerably lower than the near 40 percent of pre-pandemic revenues in 2019. Revenue from tolls is expected to stay around its pre-pandemic share.

Ridership on commuter-dominated services like the Long Island Rail Road (LIRR), Metro-North Railroad, and the subway reached extreme lows in the spring of 2020, averaging just 3 percent, 5 percent, and 8 percent of pre-pandemic ridership in April, respectively. Since the start of September 2022, commuter rail recovery has begun to outpace that of the city’s subway and buses.

Crossings on the MTA’s bridges and tunnels saw the least impact from the onset of the pandemic, reaching a low of 32 percent of pre-pandemic levels in the first week of April 2020, and quickly rebounding to over 80 percent by the summer of 2020. Currently, this is the only mode of transit under the MTA’s purview to have returned to 100 percent of pre-pandemic weekly ridership.

The various MTA services do not contribute equally to the authority’s revenue; commuter rail generates the greatest revenue per ride, at approximately $9, while buses have tended to yield the lowest revenue per ride, at around $2. However, most MTA user revenue is generated from tolls and high-volume services like the subway. At the start of 2020, subway ridership yielded the greatest proportion of monthly fare and toll revenue, at 44 percent.

This changed during the initial wave of the pandemic: from April through August 2020, toll revenue from paid bridge and tunnel crossings grew to more than half of all MTA user revenues and has since remained the largest source of these revenues. In August 2022, bridge and tunnel crossings made up 37 percent of user revenues, while subway fares contributed 35 percent.  IBO estimates that the MTA will meet its $6.2 billion fare and toll revenue targets for this year. This is, however, approximately $700 million less than the Authority’s original 2022 target set before Omicron.

The State Comptroller has also weighed in on the future revenue needs of the MTA. The Authority has also put forward an alternative plan to narrow its recurring budget gaps through 2028 by using early debt repayment. the MTA would also eliminate a projected $180 million in recurring debt service costs through 2053, which are associated with debt for operations that the Authority borrowed during the height of the pandemic. The paydown of the outstanding notes and bonds would reduce the size of the budget gaps by an average of $915.4 million through 2028.

The challenges remain substantial going forward. Fare revenue is expected to be the largest source of growth among all revenue sources between 2022 and 2026, rising by 29 percent. The MTA expects fare revenue (including none of the MTA’s major tax subsidy sources, including the Metropolitan Mass Transportation Operating Assistance (MMTOA), payroll mobility tax and real estate transaction taxes, are expected to rise by more than 7 percent over the same period, with toll revenue remaining flat over the period. Revenue in 2026, but that remains 10 percentage points lower than its share in 2019.

TRANSIT WORKER SHORTAGE

Public transit providers across North America face a shortage of operators and mechanics, a crisis that has strained budgets and forced agencies to reduce service. Ninety-six percent of agencies surveyed reported experiencing a workforce shortage, 84 percent of which said the shortage is affecting their ability to provide service. Although the shortage is most acute at agencies serving large urbanized areas and agencies with greater ridership, most agencies across the country report the shortage has forced service reductions regardless of the size of an agency’s ridership, service area population, or fleet.

Agencies reported that 45 percent of departing employees left to take jobs outside the transit industry, more than those who retire or left the workforce combined. The survey of agencies indicates that concerns about schedule and compensation were responsible for more departures than assault and harassment or concern about contracting COVID-19.

The problem is not limited to mass transit providers. States across the country are dealing with a shortage of snowplow drivers.  The Missouri Department of Transportation reports that it is nearly 30 percent below the staffing it needs in order to cover more than one shift. The Kansas DOT is about 24 percent short of snowplow operators needed to fully staff offices across the state. 

WESTERN DAMS

The Federal Energy Regulatory Commission (FERC) voted unanimously to approve the removal of four dams on the lower Klamath River to facilitate the return of salmon to the river. The move culminates a two- decade effort to restore the salmon runs on the river. The irony is that hydroelectric generation is being removed at the same time that carbon-free energy production is being favored.

As a result of the vote, FERC is ordering the surrender of the Lower Klamath Project License, which is currently held by energy company PacifiCorp. That license will be transferred to the entities in charge of dam removal: the states of Oregon and California, and the Klamath River Renewal Corporation, a nonprofit created to oversee dam removal that is made up of tribal, state and conservation group representatives.

PacifiCorp, their owner, had concluded that these outdated, inefficient hydroelectric dams would be more difficult to update than to remove.  In early 2024, the reservoirs are scheduled to be drawn down between salmon runs. In mid-2024, demolition will begin and by October 2024, the river should be open for the salmon’s return.

CRYPTO AND POWER

The recent downfall of FTX, the cryptocurrency exchange, does not help the image of the industry in ways obvious and not so obvious. Of the many factors cited by opponents of crypto, the enormous electric power needs of the industry and their increasing use of fossil fueled generation plants is gaining ever increasing attention. In that environment, legislation was passed in New York State limiting the expansion of crypto mining at abandoned fossil fueled facilities.

The legislation will impose a two-year moratorium on crypto-mining companies that are seeking new permits to retrofit fossil fuel plants in the state into digital mining operations. Many of these are some of the oldest and dirtiest generation in the state. The legislation will not impact existing mining facilities or stop all crypto-mining activities in the state. The restrictions will only apply to those seeking permits to re-power fossil fuel plants. Those that connect directly into the power grid or use renewable energy sources will remain unaffected.

It also requires New York to study the industry’s impact on the state’s efforts to reduce its greenhouse gas emissions. The industry resists these sorts of limits and study periods which may tell you something. It is feared that the New York law’s enactment could stimulate similar actions in other states.

MEMPHIS POWER SAGA

Memphis Gas, Water, and Light the municipally owned electric utility serving the city find themselves at the center of another to the ability of the TVA and the city to enter into a long-term power supply contract. This week, three nonprofits — Memphis-based Protect Our Aquifer, Energy Alabama and Appalachian Voices are challenging the long-term contract model with which TVA agrees to provide power to retail distributors.

The plaintiffs have argued the contracts violate the Tennessee Valley Authority Act of 1933, the law that governs TVA, and the National Environmental Policy Act, which requires environmental review of federal agency policy decisions. The case comes as MGWL decides whether to enter into a 20-year supply contract with TVA or to acquire supplies from other providers. The environment around the decision is also poised to change.

After a two-year period of bid solicitation and review, the outgoing CEO and a consultant hired on his watch recommended renewal of the relationship with TVA on a long-term deal. A new CEO began this week. The MLGW board delayed a vote on the 20-year deal this month because one company that bid on its electricity protested the decision to award TVA the contract. The ultimate decision rests with the Memphis City Council.

RENEWABLES AND PROPERTY TAXES

The Oklahoma Supreme Court unanimously affirmed a trial court’s ruling that federal production tax credits used to finance the construction of wind and solar farms can no longer be included in county assessors’ property valuations that determine the local taxes paid by energy companies. The Court said federal production tax credits (PTCs) are intangible property not subject to ad valorem taxation, according to the Oklahoma Constitution. PTCs are instead a tax incentive.

The ruling noted that while there is no doubt that tax credits may enhance the value of real property or have value for IRS taxation purposes, the Oklahoma Constitution states that intangible personal property is not taxable and that PTCs are intangible personal property. The ruling also stated that if the Oklahoma Legislature wanted to statutorily define PTCs as tangible property, it could do so but has not.

The current system leads to wide variations of similar properties especially those which cross county lines. Local assessments of energy properties can be “farmed out” to third-party assessors hired by elected county assessors to value more complicated assets, such as wind farms, pipelines and petroleum production assets. Multiple bills aimed at addressing property valuation disputes between county assessors and energy companies were introduced during the 2022 legislative session, with two of the measures being enacted.

One law requires energy companies protesting their tax valuations to file the correct paperwork in a timely manner and requires that county assessors inform school districts and tax jurisdictions of the property tax protests taking place within the county. In a concession to the industry, the law also prohibits the use of a third-party assessor during informal valuation negotiations between county assessors and energy companies. The second law moves valuation appeals of $3 million or more from the district courts to the existing Court of Tax Review.

The last provision reflects the fact that this tax dispute has gone on for six years and that the ruling potentially has implications for school districts across the state. The valuation changes will impact the amounts receivable by school districts from the state. The concern is that the law will raise uncertainties about school district bond financings. In 2021, about $80 million in property tax payments sat in escrow owing to valuation protests.

VIRGIN ISLANDS

We waited to see what rabbit the USVI Water and Power Authority would pull out of its hat before December 1 to keep its power generation system running in the face of a fuel cutoff by its propane supplier. The utility’s long standing financial problems have led to regular threats to its fuel supply.  Now, the Authority will use short term authority to acquire diesel fuel to run old power plants while a longer-term plan can be crafted. Electrical production by diesel costs twice as much as it does it by propane. WAPA had been paying $380,000 to $400,000 a day for propane. The Authority’s board authorized WAPA to spend up to $500,000 per day for propane because of the possible higher prices. The board authorized the amount through January 6.

A long-standing dispute between the USVI government and the estate of Jeffery Epstein has been settled. The estate of Jeffrey Epstein has agreed to pay what could amount to more than $105 million to the U.S. Virgin Islands to settle claims The estate of Jeffrey Epstein has agreed to pay what could amount to more than $105 million to the U.S. Virgin Islands to settle claims that he fraudulently obtained tax breaks for operating a financial advisory firm. Mr. Epstein’s estate agreed to repay in cash more than $80 million in tax benefits that one of his companies had received. It will also split the proceeds of the sale of a private island held by the estate.  The estate will have up to a year to come up with the necessary cash to fulfill its settlement terms.

INTERMOUNTAIN POWER

The Intermountain Power Agency has revealed that two private companies, apparently with understandings with state legislators offered to buy the Agency. Last month a proposal was offered that included the companies buying out all of IPA and its assets—its land and water rights, outstanding bonds and power contracts, as well as its transmission systems and generating station.  The plan was to use carbon capture and sequestration to extend the life of IPA’s two coal fired generating units. The power would be used for a data center.

One of the companies even sought to become a member entity of IPA, which is comprised of 23 Utah municipalities, as part of the proposal. That would raise all sorts of issues. All of it would seem to be moot as by agreement with the Environmental Protection Agency, IPA is allowed to operate the coal units until 2025, otherwise IPA would have to spend hundreds of millions of dollars building new coal ash disposal facilities in order to comply with federal regulations. 

If EPA believed IPA was set to diverge from the approved closure timeline tied to the ash disposal agreement, a 135-day deadline could kick in whereby IPA would need to open new ash disposal facilities or face imminent shut down. IPA received an approval order from the Utah Division of Air Quality in 2021 that allowed work to commence on IPP’s gas plant. Provisions of the order contain language about the closure of the plant’s coal-burning units.

Reopening that order to delay the closure of the coal units would likely trigger an 18-month delay in construction of the gas plant and could add costs of up to $50 million to the effort, according to IPA. 

Disclaimer:  The opinions and statements expressed in this column are solely those of the author, who is solely responsible for the accuracy and completeness of this column.  The opinions and statements expressed on this website are for informational purposes only, and are not intended to provide investment advice or guidance in any way and do not represent a solicitation to buy, sell or hold any of the securities mentioned.  Opinions and statements expressed reflect only the view or judgment of the author(s) at the time of publication, and are subject to change without notice.  Information has been derived from sources deemed to be reliable, but the reliability of which is not guaranteed.  Readers are encouraged to obtain official statements and other disclosure documents on their own and/or to consult with their own investment professional and advisors prior to making any investment decisions.

Joseph Krist

Publisher

This is effectively a double issue of the MCN. Our next issue will be the December 5, 2022 issue.

This week finds two of the major issuance and credit entities providing updated credit information. NYC saw Mayor Adams issue the November 2022 Update to the City’s five-year Financial Plan. The California Legislative Office issued a new update to its outlook for the State’s finances. Bankruptcy is in the news as the City of Chester, PA declared Chapter 9 and FTX the crypto exchange and arena sponsor chose the Chapter 11 route. The cost of the immigration stunts pulled by southern governors is becoming clearer in NYC.

As usual, we see lots going on in the power generation sector. Austin, TX is in the midst of a serious debate over rates. We see the role of solar in grid resilience and two public agency-owned nuclear power plants will participate in a pilot project to produce hydrogen. Several municipal utilities find themselves in the middle of the swirl of issues stemming from the western U.S. drought.

The Port of Los Angeles gets an upgrade 25 years in the making. Two midwestern cities are piloting various forms of income support programs. Enjoy the most universal American holiday on Thanksgiving.

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NYC FINANCIAL PLAN UPDATE

The latest financial update to the City’s financial plan was not exactly filled with good news. The impacts of the pandemic remain, the city economy has been slow to return to its pre-pandemic state, and the performance of the financial markets largely negative. So, it is no surprise that City officials disclosed that they were now projecting a combined budget gap of $13.4 billion for the next three fiscal years, compared with the $12 billion the city projected in June. The City attributes the growing gap to the travails of the financial markets. The impact from the markets is direct in terms of trading activity and pay but also has implications for future funding of pensions costs by the city.

The update comes as the state comptroller released a report highlighting the difficulties the city faces in recovering from the pandemic. The city’s full-time workforce declined by 19,113 employees over the last two years, the largest decline in staffing since the Great Recession of 2008. Despite the city hiring over 40,000 new employees in the last fiscal year, city job vacancies stand at more than 21,000.

The 6.4% decrease in the city’s workforce during the pandemic was found to be uneven across its 37 largest agencies, with 11 experiencing a decline in staffing of more than 13%. The Department of Correction had the greatest loss of employees with a 23.6% decline, followed by the Department of Investigation at 22.2% and the Taxi & Limousine Commission at 20.5%.

The ongoing issues facing the city in regard to public safety and homelessness only highlight the unplanned nature of some of the reductions in headcount. The Police Department (6.7%), Department of Social Services (13.7%), and Administration for Children’s Services (15.6%) accounted for more than half of the citywide workforce decline from June 2020 to August 2022.  Divisions within Social Services, Education, Parks and Recreation, Homeless Services, and Mental Health and Hygiene had the highest vacancy rates of more than 20%. 

The city’s current financial plan looks to fill 24,969 positions by fiscal year 2023. In October, more than half of the city’s major agencies had external job postings for at least 20% of their openings, while other major agencies did not show significant efforts to hire as of October 2022.

IS REAL LIFE RETURNING TO STATE BUDGETS?

The massive infusion of federal aid to lower levels of government to deal with the costs of response to the pandemic was the clear factor supporting state credits. It allowed all but one state to avoid borrowing from the Federal Reserve. It also provided a pool of cash to legislators whose existence is based on the ability to deliver government funded services. Across many jurisdictions, the cash funded either new or expanded service initiatives which required long-term sources of revenue. That has been a huge caution light when looking at the states.

Now, we see the first signs of the potential impact of removing the fiscal punchbowl. The State of California’s Legislative Analyst’s Office has released a report warning of potential shortfalls in revenues and a growing budget gap. Reflecting the threat of a recession, the LAO revenue estimates represent the weakest performance the state has experienced since the Great Recession. The result is the Legislature could face a budget problem of $25 billion in 2023‑24. The budget problem is mainly attributable to lower revenue estimates, which are lower than budget act projections from 2021‑22 through 2023‑24 by $41 billion. 

The $25 billion budget gap in 2023‑24 is roughly equivalent to the amount of general‑purpose reserves that the Legislature could have available to allocate to General Fund programs ($23 billion). Based on historical experience, should a recession occur soon, revenues could be $30 billion to $50 billion below the LAO revenue outlook in the budget window. LAO anticipates anticipate revenues will decline between 2021‑22 and 2022‑23 by more than the budget act anticipated, but then remain largely flat between 2022‑23 and 2024‑25, before growing again in the last two years of the outlook.

CHESTER CHAPTER 9

The latest distressed municipality to try the bankruptcy option is the City of Chester, PA. This industrial suburb of Philadelphia is a poster child for the example of historically disadvantaged cities. The City was admitted to the Commonwealth of Pennsylvania’s Distressed Municipalities program under the well-known Act 47 in 1995. A quarter century later a fiscal emergency was declared by the Governor. Now, the city, under the guidance of a state overseer has filed for Chapter 9 bankruptcy.

Chester has long had much working against it. The major industrial development of the late 20^th century in Chester was a refuse to energy plant which served the city and the surrounding area. The concurrent economic decline only damaged the city’s direct revenue generating abilities. At the same time, the City was run poorly even under the best of circumstances. Expenses were delayed or not paid including nearly $40 million of required payments to fund pensions. Even the state overseer has noted the lack of information or concealment of information by city financial officers. His office has expressed frustration at city officials for what is described as a lack of cooperation while trying to get finances in order. 

The city paints a dire picture of layoffs, pension reductions, service reductions. Employees blame “Wall Street” or the state or anything else that doesn’t reflect on their city managers. And yes, the issue of race will overhang the discussions. Chester is an example of the results of years of issues now generally grouped under the heading of equity. If the recent pattern of bankruptcy resolutions holds up the pensioners will take a smaller haircut than will any holders of the city’s debt. In the meantime, it remains to be seen if the Commonwealth will challenge the bankruptcy filing as it did in the case of the City of Harrisburg.

FTX AND MIAMI

Cryptocurrency was having its moment a couple of years ago and some municipal officials embraced it with a real level of gusto. As the pandemic unfolded, a variety of events and factors served to draw a number of participants in the cryptocurrency industry to the City of Miami. The Mayor of Miami has been the leading advocate not only seeking to attract traders and exchanges to the city but also advocating for paying workers in crypto and even investing city funds in cryptocurrency. Through earlier ups and downs in the value of crypto, the Mayor remained a steadfast advocate.

That led one player in the industry to locate in Miami and as was the practice of that player, take a number of steps to insinuate themselves into the community in very prominent ways. That is why the naming rights to the arena which serves as the home of the Miami Heat of the NBA were sold earlier last year to FTX. Yes, that FTX – the one which spectacularly flamed out last week. The immediate impact is on the Miami Arena which had barely gotten the name up over the entrance when it had to be taken down. Those naming rights will now be reauctioned.

It could just be that Miami is the place for trendy products or industries to die at least when it comes to naming rights. It’s easy to forget the Blockbuster Bowl games in the 90’s in then Joe Robbie Stadium. The arena had been called the FTX Arena since June 2021. The naming agreement had a 19-year term and was projected to produce $90 million over the term of the lease for Dade County. It just repeats a pattern seen over the years.

BEHIND THE IMMIGRATION STUNTS

Nothing stimulates debate like the issue of immigration. It is a subject that increasingly becomes more emotional and apocalyptic by the day. The issue has gotten much attention in NYC where the asylum seeker phenomenon has been in full view. Whether it is tent cities in the Bronx or in the middle of the East River, the issue is not going away under the current national immigration scheme. Lost in all the political hyperbole are facts about what this is actually costing NYC.

Once again, the City’s Independent Budget Office (IBO) has stepped in to fill the breach. A new report notes that as of early November, the Adams administration reported that 23,800 asylum seekers have arrived in New York City, in most cases looking to escape economic and civil unrest in their home countries—Venezuela in particular.  Based on the number of asylum seekers who had arrived as of early November, IBO estimates that the city will spend at least $596 million over the course of a year. 

That figure covers costs related to shelter stays, public schools, basic health services, and some legal assistance. The number just covers those who have arrived to date. Additional costs can be estimated but vary widely based on who is getting the help (individuals versus families). For example, individual cost estimates could range from about $1,900 for an individual who does not enter the city’s shelter system and receives some health and basic legal services to nearly $93,000 for a family of four who enters a shelter for a year and has two children enrolled in the city’s public schools, along with receiving some health and basic legal services.

IBO’s best estimate is that another 10,000 asylum seekers locating to NYC could generate additional expenses of some $246 million.

SOLAR AND BLACKOUTS

A newly released study by the US Energy Information Administration showed that while 2021 recorded the third highest rate of total annual electric power outages since 2013, state markets with a high rate of rooftop solar adoption have shown to have the shortest timeframe for recovery from outages and higher grid resiliency. The EIA study found that increasing solar states such as Florida, Delaware, the District of Columbia and Nevada, experienced outages ranging from 52 minutes to 102 minutes in the most recent year.  That contrasts to states with prohibitive solar and net metering incentives, such as West Virginia, Louisiana and Mississippi, which saw power outages stretch from 19 hours to more than 3 days.

The US experienced a record number or 21 named storms in 2021, the third-most active Atlantic weather season on record. In addition to four major hurricanes in 2021, a winter storm affected the Midwest and Southeast as far south as Texas. Customers in Louisiana, Oregon, Texas, Mississippi, and West Virginia experienced the most time with interrupted power in 2021, ranging from almost 19 hours in West Virginia to over 80 hours in Louisiana. Louisiana also had the highest number of power interruptions, followed by Texas.

AUSTIN ELECTRIC

Austin, TX and its electric system were heavily impacted by the electric distribution disaster that was Texas in February 2021. The city’s municipal electric system is now trying to restore the utility’s financial position which was impacted by the higher purchased power costs resulting from February 2021. The city council is now considering rate increase proposals to address the utility’s diminished financial position.

The rapid spike in costs led Austin Energy to consistently over the past two years drawdown $90 million from its reserves. This led to two downgrades of its debt rating, from AA to AA minus. Now it is asking to recover an additional $35.7 million in base rates largely through residential consumers. That has led to serious opposition. An alternative proposal from some stakeholder groups would raise the fixed residential fee to no more than $12 per month rather than Austin Energy’s proposed $25. That would result in a new lower revenue requirement from $35.7 million to just $12 million.

The base rate request follows the approval just one month ago of an increase in a pass-through charge, This is intended to cover an estimated $104 million in operating costs incurred by the utility over the last year. The approved increase for average customers starting Nov. 1 was $15 a month. The regulatory process has seen Austin’s rate proposals successfully challenged before. In the settlement of Austin Energy’s own 2016 base rate review, the Council approved a revenue requirement that was $25 million lower than Austin Energy originally requested.

The cost of power in Texas in the wake of the 2021 freeze has become a real issue. The Census Bureau reports that 45% of residents said they had to forgo spending on basic necessities, such as food and medicine, in order to pay their energy bills. Texas ranked worst among all states and its reported rate was 11 percentage points higher than the national average of 34%.

NUCLEAR GOES HYDROGEN

The U.S. Department of Energy (DOE) is partnering with utilities on four hydrogen demonstration projects at U.S. nuclear power plants. Hydrogen would be produced at the nuclear plants through high- or low-temperature electrolysis, a process of splitting water into pure hydrogen and oxygen. High-temperature electrolyzers use both heat and electricity to split water and are more efficient.

The selected plants are among the most well-known and longest operating nuclear generation plants in the country. Two of them have been the subject of subsidy payments to enhance the economics of continuing to generate nuclear power and two were owned at one time by municipal power agencies. DOE is supporting the construction and installation of a low-temperature electrolysis system at the Nine Mile Point station in Oswego, New York. Nine Mile Point would be the first nuclear-powered clean hydrogen production facility in the U.S. and would also use the hydrogen to help cool the plant. The former NY Power Authority owned plant is the oldest operating plant in the country.

The second plant which formerly had municipal utility ownership to participate in the hydrogen is the Palo Verde plant in AZ. DOE is negotiating an award with Arizona Public Service (APS) and PNW Hydrogen to demonstrate another low-temperature electrolysis system at the Palo Verde Generating Station. The hydrogen will be used to produce electricity during times of high demand or to make chemicals and other fuels.

DOE is continuing to support the development and maturation of clean hydrogen production, including funding for six to ten regional clean hydrogen hubs across the United States through the Bipartisan Infrastructure Law. At least one of the hubs will be focused on clean hydrogen production using nuclear energy.  Additional funding, through the Inflation Reduction Act, will be available to support clean hydrogen production via tax credits that will award up to $3/kg for low carbon hydrogen.

MORE ELECTION UPDATES

South Carolina will see its rainy-day fund showered with enough funding to increase the required level under the state’s constitution. Voters approved two constitutional amendments requiring the state to increase its budgetary reserves to 10% of prior-year revenue from the current 7%. They apply collectively to the state’s rainy-day funds — the General Reserve Fund (GRF) and Capital Reserve Fund (CRF). The higher required reserve level is an obvious positive rating factor.

The amendments boost the budget reserve funds’ required amounts as a share of state revenue, which are determined using the most recently completed fiscal year. The GRF’s requirement will rise over four years to 7% from 5% of revenue, and the Capital Reserve Fund’s will immediately grow to 3% from 2%. Balances required by the amendments as of 30 June 2022, would amount to approximately $918 million — an increase of $274 million above prior requirements.

San Francisco voters did not do the City’s GO credit any favors through approval of two ballot items. Proposition G requires the city to appropriate money to SFUSD based on estimates of the city’s excess Educational Revenue Augmentation Fund (ERAF) revenues, money remitted back to the city after it meets certain unique school district funding requirements. The city controller estimates appropriations will grow from $11 million in fiscal 2023-24 to $35 million in 2024-25 and $45 million in 2025-26.

Voters approved a second ballot measure to increase pension cost-of-living adjustments (COLAs) awarded to a subset of retirees by removing a conditional requirement tied to the funded status of the San Francisco Employees’ Retirement System (SFERS). Beginning 1 July 2023, San Francisco’s annual pension contribution requirements will rise by roughly $8 million annually for 10 years as a result of Proposition A’s approval.

COAL AND WATER

Arizona State University researchers recently addressed the issue of power generation and water supplies. Their report summarizes findings from extensive research to identify and describe the amount, source, and ownership of water rights used by coal-fired power plants and coal mines throughout the Colorado River Basin. There are currently about 37 coal-fired power plants and coal mines in the Colorado River Basin. These plants and mines are located in five states—Arizona, Colorado, New Mexico, Utah and Wyoming—and together they withdraw an estimated 131,130 acre-feet of water each year. Coal plants use the vast majority of this water, about 130,000 acre-feet per year, while coal mines collectively use a modest 1,130 acre-feet.

There are plants owned by public power agencies and cooperatives that are analyzed in the report. Salt River Project (“SRP”), an Arizona-based utility, owns coal water rights that entitle it to around 100,000 acre-feet of surface water each year in Arizona and Colorado. Coronado Generating Station is owned by SRP and located near St. Johns. Coronado used about 5,200 acre-feet of water in 2020, all of which came from about 30 groundwater wells with a combined pumping capacity of 44,000 acre-feet annually. All of the wells are owned by SRP.

Craig Generating Station in Colorado is owned by Tri-State G&T, PacifiCorp, Platte River Power Authority (“PRP”), SRP and the Public Service Company of Colorado (“PSCC”) and is located near Craig, Colorado. It used about 13,300 acre-feet of water for cooling purposes in 2020. According to the EIA, all this water was surface water from the Yampa River. In New Mexico, Four Corners Power Plant is owned by APS, Pinnacle West, SRP, TEP and the Public Service Company of New Mexico (PNM) and is located near Fruitland, on land leased from the Navajo Nation. According to EIA data, the power plant used about 17,000 acre-feet of water for power generation and cooling in 2020, all from the San Juan River.

In Utah, Hunter Power Plant is owned by Utah Associations Power Systems, Deseret Power Electric Co-op, Provo City and PacifiCorp and located near Castle Dale. The plant used about 16,400 acre-feet of water in 2021. It gets its water from Cottonwood Creek in Utah. Bonanza Plant is owned by Utah Municipal Power Agency and Deseret Generation & Transmission Co. (“Deseret G&T”) and is located near Vernal.

The plant used 5,442 acre-feet of water in 2021. As the EIA correctly reports, Bonanza Plant gets all this water from the Green River, under a water right jointly owned by Deseret G&T and the Utah Municipal Power Agency with a capacity of 10,859.5 acre-feet per year. Deseret G&T also owns another water right in the area entitling it to an additional 10,859.5 acre-feet of water per year, but it is not clear whether this right is used at Bonanza Plant.

Intermountain Power Plant is owned by Intermountain Power Agency and is located near Delta. It used about 7,233 acre-feet of water in 2020. The mine gets its water rights from over a dozen water rights, all owned in whole or in part by Intermountain Power Agency, with a total capacity of 15,300 acre-feet per year. Intermountain Power Plant is not within the Colorado River Basin, but it is near the Basin’s boundary, such that its water use could impact Basin water resources.

Just two of the largest water users on the list account for enough water each year to fill the requirements of some 100,000 homes. In a part of the country where every drop matters that puts users like these at the center of the Colorado River water debate. SRP increasingly finds itself at the center of the conflicting forces driving the climate debate. The utility maintains ownership shares of three of these plants and their associated water rights. It has also gone through a bruising process over siting a gas generation expansion. It also has lobbied against net metering rules in AZ which might raise or maintain current price requirements for excess power taken from solar users.

PORT OF LOS ANGELES

Over the past few years, the Port of Los Angeles has been at the center of many of the issues confronting port operators and providers – trade volumes, pressure to reduce pollution, pressures to implement automated operations and the historic relationship between ports and the unions representing various labor interests at the port. It created a challenging operating environment in the best of times. The pandemic raised a host of concerns – pressures on trade activities; delayed offloading as pandemic restrictions led to container backups and the potential for substantial labor disruptions through 2022 – which could have a negative credit impact.

Cargo volume at the Port of Los Angeles dropped in October as the Port handled 678,429 Twenty-Foot Equivalent Units (TEUs), a 25% decrease from October 2021. The Port of Los Angeles has processed 8,542,944 TEUs during the first 10 months of 2022, about 6% down from last year’s record pace. Our concerns over labor issues are acknowledged by the Port. “Cargo has shifted away from the West Coast as some shippers await the conclusion of labor contract negotiations. “With cargo owners bringing goods in early this year, our peak season was in June and July instead of September and October.”

This week, the efforts of Port management to handle these coincident pressures paid off in an upgrade. The Port of Los Angeles has been upgraded to an AA+ bond rating with stable outlook on its outstanding bonds by Standards & Poor’s (S&P), the highest rating given to a seaport without taxing authority. “Trade tensions with China have not resulted in weaker financial performance, and supply chain disruptions and congestion have somewhat subsided, thereby mitigating operational challenges.”

S&P also cited the Port’s continued strong business position, stable portfolio of assets and excellent historical financial performance as factors contributing to the rating. Prior to its AA+ upgrade, the Port of Los Angeles maintained an AA rating with S&P since 1996. 

INCOME EXPERIMENT

The Toledo, OH City Council approved a plan which would allow the City to apply a portion of COVID related federal funding to reduce at least one category of student debt. COVID-19 Stimulus Package, which gave $800,000 to Toledo for emergency funding and relief. Lucas County had agreed it would then contribute an additional $800,000, bringing the total to $1.6 million. Those proceeds would be used by city government to buy medical debt through the nonprofit RIP Medical Debt, an organization that specializes in purchasing “bundled medical debt portfolios on the secondary debt market.

It comes after the City of Chicago approved its own plan in July of this year along similar lines with Cook County participating as well. The Illinois plan hopes to erase $1 billion in debt with RIP Medical Debt, using the $12 million in federal funding provided to them. To qualify, the debtor has to earn less than four times the federal poverty level, and the amount of the debts are 5% or more of their annual income. 

PROPOSED HOSPITAL MERGER

Sanford Health and Fairview Health signed a non-binding letter of intent to combine the two regional health systems based in South Dakota and Minneapolis. The goal is to conclude a merger by the end of 2023. It is not the first time that such a merger was proposed. In 2013, the two systems proposed a merger only to have it shot down by Minnesota regulators over competition issues.

The resulting parent company, with more than 78,000 employees and dozens of hospitals, would be Sanford Health and be operated out of South Dakota. The idea is to bring a generally rural patient base and link it to a significant metropolitan base. The rural hospital sector continues to get pummeled, especially in the wake of the pandemic. Fairview’s hospitals are generally based in the Twin Cities, including the University of Minnesota Medical Center.

Sanford is rated A+ by Standard and Poor’s. Fairview’s A3 Moody’s rating had a negative outlook. The institutions generated similar levels of pre-pandemic revenues and they share characteristics such as the operation of senior care facilities and they have significant presence in their home states. There are a number of stumbling blocks to be overcome as there has been historically opposition to a merger which might give control of the U of M medical center to a non-Minnesota entity.

Disclaimer:  The opinions and statements expressed in this column are solely those of the author, who is solely responsible for the accuracy and completeness of this column.  The opinions and statements expressed on this website are for informational purposes only, and are not intended to provide investment advice or guidance in any way and do not represent a solicitation to buy, sell or hold any of the securities mentioned.  Opinions and statements expressed reflect only the view or judgment of the author(s) at the time of publication, and are subject to change without notice.  Information has been derived from sources deemed to be reliable, but the reliability of which is not guaranteed.  Readers are encouraged to obtain official statements and other disclosure documents on their own and/or to consult with their own investment professional and advisors prior to making any investment decisions.

Joseph Krist

Publisher

THE VOTE

It will be hard to know the true implications for federal infrastructure policy of the election until control of the Senate is established. On the House side, it shapes up as a lot of investigating and media stunts so nothing gets done. That leaves the local results to give us clues. Our 10.31.22 edition outlined many of the issues on the ballot.

The NY legislature supermajority was lost. That will temper some of the zeal on the left which has implications for a variety of programs. Congestion pricing and cannabis regulation are two which come to mind.

Speaking of cannabis, Missouri and Maryland passed legalization initiatives. The other three states where weed was on the ballot saw it go down to defeat. Arkansas and North Dakota were not a surprise but South Dakota hasd already legalized in 2020 only to see the courts overturn legalization. Opposition was much better organized this time around and it was not an off-year election so the environment was less favorable.

Millionaire’s taxes resulted in a split decision. California rejected its plan while Massachusetts voters approved their proposal. Efforts to make it harder for ballot initiatives were defeated in Arkansas.  

Medicaid expansion continued its broad support. South Dakota voters approved a constitutional amendment that would extend Medicaid eligibility under the Affordable Care Act. Anybody making less than 133 percent of the federal poverty level (about $18,000 for an individual or $36,900 for a family of four) would qualify for Medicaid coverage. An estimated 45,000 South Dakotans would be covered by the expansion including some 14,000 Native Americans.

Taxes to support efforts by municipalities to decarbonize were supported in Denver and Boulder, CO. Taxes to fund transit projects had mixed results. In California, transit taxes were supported in San Francisco and Sacramento but they failed in three other counties. Arizona saw Pinal County’s tax proposal defeated. In Florida, three counties saw tax increase proposals go down to defeat. One was the Hillsborough County referendum which has been the subject of numerous legal efforts to keep the item off of the ballot. (MCN 10.31.22) Transit related initiatives were supported in Texas and the Carolinas. In Michigan, metro Detroit voters supported three transit tax increases. Ann Arbor voters supported a tax increase to fund climate change adaptation.

NATIVE AMERICAN WATER RIGHTS

The Supreme Court agreed to hear a dispute between the Navajo Nation, the Biden administration and the states of Arizona, Nevada and Colorado. The Navajo tribe is asking the federal government to determine that it has the right to waters from the Colorado River. In 1964, the Court issued a decree partially apportioning the waters of the Colorado River among several states and five Indian tribes, not including the Navajo Nation, represented by the United States as trustee. The Navajo Reservation stretches into Arizona, New Mexico, and Utah, and is located almost entirely within the Colorado River Basin. The Colorado River forms a large part of the Reservation’s western border.

The United States both failed to assert a claim to the Colorado’s mainstream on behalf of the Nation and successfully opposed the Nation’s attempt to assert such a claim on its own behalf. The Court thus did not adjudicate the Nation’s rights to the Colorado. Now, the Navajo are seeking to have its claim to water rights from the Colorado. The litigation brings together the already pressured position of the three states which comprise the lower basin and those of the Navajo Nation. It will be heard amid the ongoing efforts by the Federal government to reach agreements with lower basin water consumers in the face of the two-decade old drought drying out the Colorado.

The questions presented are: Whether the lower courts had jurisdiction over the Navajo Nation’s breach-of-trust claim seeking an order requiring the United States to assess and develop a plan to meet the Nation’s water needs, but not a judicial quantification of the Nation’s rights to Colorado River water, or whether this Court has exclusive jurisdiction under the Consolidated Decree. And whether, given the United States’ promise to provide the Navajo Nation sufficient water by entering into the treaties establishing the Navajo Reservation, coupled with the government’s nearly exclusive statutory and regulatory control over the Colorado River, the United States owes the Navajo Nation a fiduciary duty to assess the Nation’s water needs and develop a plan to meet them.

Given the ongoing “negotiations”, the opposition to the suit by the Lower Basin states is not surprising. They are already under pressure and an “additional” straw in the river would only cause losses for other users. The Colorado has begun a less than zero sum game. It is more an issue of limiting lost resources.

NATIVE AMERICANS AND CLIMATE CHANGE

The Bureau of Indian Affairs has announced that it will give money to five Native American tribes to help them relocate away from rivers and coastlines. The funding will go to three tribes in Alaska and two in Washington State. It is distinguished from other relocation programs in that it is not tied to a disaster event. Rather, it is a limited test of the concept of managed retreat.

One tribe will get $2.1 million to help replace its aging health clinic with a new building on higher land, farther from the Pacific. Other payments to other tribes will provide funding to move between 15 and 20 homes in their villages. It was a popular plan with some 11 tribes applying for relocation funding under the new $130 million program.

While small in scope, the program provides a test of the managed retreat theory. If it is seen as successful, managed retreat will likely become part of overall disaster response and management. As flooding becomes more frequent and serious, the ability of property owners to rebuild on site will be limited. Relocation will become more cost efficient than paying claims on federal flood insurance claims. It is all part of a comprehensive approach to disaster management comprising prevention, remediation, and relocation.

MUNI UTILITIES, RATES AND GOVERNANCE

Municipal utilities across the country have long been seen as sources of revenue for municipal governments. That tactic causes utilities to set rates which generate surplus utility revenues to keep residential property tax rates lower than they would be. That is how the practice is justified when it requires what should be a cost-based utility to levy rates in excess of needs. That trade off has made the practice acceptable to many ratepayers. When municipal utilities generate excess revenues for purpose other than to support general government, it raises issues.

The latest example comes from Clearwater, FL. Municipally owned Clearwater Gas is the only option for residents and businesses in north Pinellas and west Pasco counties for gas water heaters, cooking ranges, dryers and other appliances. It operates as a monopoly under state law. With wild fluctuations in natural gas prices, utilities like Clearwater Gas get more attention than they generally experience. That attention has been focused recently on Clearwater Gas’ use of customer revenues to “promote” the utility.

The Florida Public Service Commission the commission prohibits using funds from rates for promotions related to “image enhancing,” according to state statute. A Tampa Bay Times analysis found that Clearwater Gas spends substantially more on activities which could be considered by some to be “promotional” than any of the other 26 municipally-owned utilities in Florida. It includes “charitable” contributions tied to promotions of the utility as well as the use of facilities like suites at spring training games. Clearwater Gas has paid the Philadelphia Phillies $359,000 since 2015 in exchange for the stadium suite, food and drinks, and the Clearwater Gas logo displayed on the scoreboard and pamphlets.

The problem is that Clearwater Gas has taken the promotional effort to levels well beyond those of the other six municipal utilities in the state which fund “sponsorship” programs. How far beyond? Try eight and a half times the total spending on promotion by the next most profligate utility. It’s $2.2 million. Now, Clearwater Gas returns a dividend each year to the city’s general fund which is required by policy to be at least 50 percent of net income. Clearwater Gas has returned to the city an average of $3.3 million every year since 2015.

The ongoing issues around natural gas prices and their increasing role in higher utility rates has focused attention on utility rates, spending, sources of supply. At the same time, climate pressures in Florida are driving demands for non-fossil fuel generation. The promotional efforts by Clearwater Gas to drive more natural gas use and less electrification fly in the face of climate mitigation efforts. It competes with those who wish to use residential solar but face pressure from utilities who are trying to lower net metering payments.

Now, the mayor of Clearwater has sought to exert more oversight over the utility’s promotional activities. Clearwater Gas cannot provide information on who benefits from things like the suite, tickets to cultural events and golf tournaments. That is a governance issue which should concern all stakeholders.

NYC AND COVID FUNDING

Just over $13.5 billion in federal Covid-19 stimulus funds have been made available to New York City. This is comprised of $5.9 billion in unrestricted State and Local Fiscal Relief Funds from the American Rescue Plan Act of 2021 (ARPA-SLFRF) and $7.2 billion in restricted education aid. Of the dedicated education funding, $4.8 billion is authorized through ARPA (ARPA Education) and $2.4 billion is through the Coronavirus Response and Relief Supplemental Appropriations Act of 2021 (CRRSAA).

The education stimulus is mostly earmarked for spending by the city’s Department of Education (DOE), with some funds restricted for the City University of New York (CUNY). The city has also received some smaller awards, totaling around $380 million for transportation, remote learning technology, and Section 8 housing vouchers.

As of the close of fiscal year 2022, the city has claimed more than $6.9 billion in these stimulus funds to cover costs, per the city’s Financial Management System. This includes $1.2 billion in FY 2021, and $5.7 billion in FY 2022. Of the nearly $6.2 billion remaining, $4.1 billion are earmarked for educational purposes (from ARPA Education and CRRSAA) and $2.0 billion are unrestricted ARPA-SLFRF funds.

As of the release of the 2023 Adopted Budget, the city had budgeted $4.7 billion—across these stimulus funding sources—from 2023 through 2025. This means that $1.5 billion of the city’s federal stimulus award has neither been claimed nor is currently budgeted for spending in this or future fiscal years, and therefore, is available to be allocated to agencies’ budgets in the city’s upcoming financial plans.

NYC HEALTH AND HOSPITALS

Health + Hospitals (H+H), New York City’s public hospital system, is the largest and one of the oldest public hospital systems in the country. H+H is the largest provider of emergency room care, care for mental health diagnoses, and uninsured care in the city. It was arguably at the center of efforts to address the COVID-19 in NYC. This was an obvious result given the demographic and economic profile of the majority of potential demand for these hospitals. It expanded bed and staffing capacity at the start of the Covid-19 surge and launched new temporary initiatives such as the Test & Trace Corps and staffing vaccination sites across the city, as well as built three new Covid-19 community health centers, and expanded its telemedicine offering.  

The New York City Independent Budget Office (IBO) estimates that the city will provide a total of $2.3 billion in operating support to H+H in 2023 (all years refer to city fiscal years). This is in addition to the $564 million the city has budgeted to provide to H+H for delivering services on its behalf. City operating support planned for H+H is similar to what the city provided in 2022. However, city support has been growing in recent years; its subsidies to H+H averaged $1.5 billion per year from 2018 to 2021.

The primary source of city operating support for H+H is through supplemental Medicaid payments. H+H serves a disproportionate share of Medicaid and uninsured patients and it is receiving additional Medicaid (DISH) funding. By providing these supplemental payments, the city triggers an equal amount of funding from the federal government. The city plans to provide $1.5 billion for its share of the supplemental Medicaid payments in 2023.

There are cash flow risks which could result from the reliance on these funding sources as policies change and COVID aid goes away. DSH cuts were originally required by the Affordable Care Act to begin in federal fiscal year 2014, but have been continuously postponed, most recently due to Covid-19 and then by the 2021 Consolidated Appropriations Act.

Cuts are now forecast to resume in federal fiscal year 2024 (beginning October 1, 2023). DSH cuts were originally required by the Affordable Care Act to begin in federal fiscal year 2014, but have been continuously postponed, most recently due to Covid-19 and then by the 2021 Consolidated Appropriations Act. Cuts are now forecast to resume in federal fiscal year 2024 (beginning October 1, 2023).

If all the H+H reserves are depleted as a result of the cuts, then the system would be in a very precarious situation and would either need to drastically cut expenses and services (likely through layoffs or closures), or require a city bail-out. This situation could be averted by spreading out expense cuts over time. The system may continue to incur unreimbursed Covid-19 related costs after federal funding and the public health emergency period end.

If that is the case, H+H or the city would have to absorb the cost. Indeed, this has already begun to happen. Covid-19 federal relief for the uninsured and programs for Covid-19 testing and treatment ended in March 2022; in April 2022 for funding for vaccine administration was shutdown. The city’s latest adopted budget included $200 million of city funds for Test and Trace in 2023. Test and Trace was a temporary program.

COVID SPENDING FOR TRANSIT

Due to the COVID-19 public health emergency, ridership decreased 24.7 percent from 2020 and Federal assistance for transit (2021 constant dollars) increased 18.2 percent. Report Year 2021 fare revenues decreased by 30.4 percent due to the COVID-19 public health emergency. Federal funding increased 4.2 billion dollars to fill the funding deficit.

Beginning in RY 2020, transit agencies received funding from Federal programs such as the Coronavirus Aid, Relief and Economic Security Act (CARES), Coronavirus Response and Relief Supplemental Appropriations Act (CRRSA), and the American Rescue Plan (ARP). In RY 2021, 852 transit agencies spent over 13.1 billion dollars from these programs, mostly on operating expenses. This represents a 95% increase in the amount of Federal funding expended from the three programs collectively compared to NTD Report Year 2020.

In 2021, for each dollar spent on operating costs per trip across all modes and all transit systems, 12.8 cents are recovered through fares. This is a 30 percent decrease from the 2020 fare recovery ratio of 18.4 cents per dollar spent on operating expenses, resulting from the COVID-19 public health emergency. That is a trend which is difficult to reverse. Ridership trends have been negative for some time. Total urban transit ridership has decreased significantly from 2012 to 2021, going from about 10.36 billion passengers to 4.40 billion passengers.

On average, directly generated revenues, including passenger fares, fund 17.4 percent of public transit operating expenses for urban agencies in the U.S. Local and State sources together fund less than 50 percent of operating expenses, at 25.6 percent and 20.8 percent respectively. Federal Government sources fund the remaining 36.2 percent of total operating expenses.

Disclaimer:  The opinions and statements expressed in this column are solely those of the author, who is solely responsible for the accuracy and completeness of this column.  The opinions and statements expressed on this website are for informational purposes only, and are not intended to provide investment advice or guidance in any way and do not represent a solicitation to buy, sell or hold any of the securities mentioned.  Opinions and statements expressed reflect only the view or judgment of the author(s) at the time of publication, and are subject to change without notice.  Information has been derived from sources deemed to be reliable, but the reliability of which is not guaranteed.  Readers are encouraged to obtain official statements and other disclosure documents on their own and/or to consult with their own investment professional and advisors prior to making any investment decisions.

Joseph Krist

Publisher

TEXAS CENTRAL

A lawyer for nearly 100 property owners will seek legal action against Texas Central, the consortium which hopes to build a bullet train between Dallas and Houston. The hope is that such a suit could result in an opportunity to depose Texas Central. This could force Texas Central to provide information desired by property owners who do not wish to accommodate the railroad’s planned right of way.

Texas Central secured eminent domain authority to seize private property from the Texas Supreme Court in July. Texas Central plans to obtain any and all federal Surface Transportation Board certifications required to construct and operate the project. The individuals actually running the enterprise all left after the decision was handed down, however. Now, the enterprise is being “managed” by a consultant but there has been no guidance as to whether the railroad intends to proceed as they claim.

How realistic is the plan? The mayor of Houston who is a big backer uttered a phrase on a promotional trip to Japan that may not be the most encouraging. “If you build it, people will take full advantage of it.” We’ve seen too many projects which have been built on that hope which do not succeed.

SMALL COLLEGE BLUES

Founded in 1815, Allegheny College in western Pennsylvania is one of the oldest small, private liberal arts colleges in the United States. The college served 1,545 full-time equivalent students in fall 2021 and generated $63 million in fiscal 2021. Now, like so many other small liberal arts institutions, the College’s finds that its finances are under pressure.

The reasons are common: elevated competition, shifting demand for the college’s core academic offerings, and weak demographics will continue to strain revenue and contribute to deep operating deficits in fiscal 2022 and likely fiscal 2023. Until it can rebalance its finances, it will continue to rely on endowment drawdowns. Allegheny College’s Baa2 issuer rating is largely supported by its solid wealth and liquidity. If trends continue that source of support will be diminished and then the new negative outlook will be borne out.

“The negative outlook reflects Moody’s expectations that significant student market and budgetary challenges will contribute to sizeable operating deficits through fiscal 2023 and likely drive at least some erosion to financial reserve levels. The outlook also incorporates the headwinds the college will have in implementing expense reductions due to human capital and shared governance constraints.”

Another institution in that class is upstate New York’s St. Lawrence University. Moody’s revised St. Lawrence University’s outlook to negative from stable while maintaining its A2 rating. The reasons will sound familiar. “The outlook revision to negative from stable is largely driven by a deeper than forecasted operating deficit in fiscal 2023 due to lower than projected fall 2022 enrollment.

While expense reductions and federal support alleviated structural deficits over the past several years, the need to adjust expenses to offset declining revenue will be challenging due to inflationary pressures, the university’s small scope of operations, and a high 67% reliance on student charges. Weak regional demographics, are a key driver of this outlook action. In a shrinking market, the university confronts elevated competition, which will continue to depress pricing flexibility and student-related revenue growth.”

In fall 2022, St. Lawrence enrolled 2,155 full-time equivalent students, and it generated approximately $130 million in operating revenue in fiscal 2022.

PUERTO RICO

The latest debt restructuring agreement dealing with defaulted Puerto Rico debt was announced. The Puerto Rico Oversight Board reached an agreement with bondholders owning some $1.09 billion in principal of debt issued for the Puerto Rico Public Finance Corporation. The debt was not secured by a revenue pledge, only by a covenant to appropriate funds from the legislature. It was clearly unsecured debt. Nevertheless, holders were able to obtain some limited recompense depending on when their bonds were issued. Overall, the settlement provides a recovery in the range of 6.4%.

In that sense, it is a win for bondholders given the haircuts taken by holders of debt with stronger security positions. We told the Daily Bond Buyer “in the case of annual appropriation debt, especially debt from a non-specific source of revenues, you pay your money and you take your chances. In the case of this appropriation debt, investing in that debt at the point in time it was issued clearly carried lots of risk. That risk continues to be highlighted by the clear language that the DRA debt is very appropriation reliant. I would argue that the buyers of this debt had to be willing to write it off or take a very long-term view in terms of recovery.”

The debt has been in default since August, 2015.

SANTEE COOPER

Last week we detailed issues facing the South Carolina Public Service Authority over its future sources of generation. (See MCN 10.31.22). Now in the wake of the decision by Central, the Santee Cooper Board of Directors announced that it had “discussed” plans for a new natural gas unit to partially replace retiring coal units. Specifically, Santee Cooper is proposing a 1×1 natural gas combined cycle unit with a summer capacity exceeding 338 megawatts (MW) to be located Hampton County, S.C. The plant design is expected to potentially convert to emissions-free hydrogen fuel when hydrogen is more commercially available. 

 The South Carolina Public service Commission will have the final say on Santee Cooper’s plans. Ultimately, resources proposed to Santee Cooper’s combined system will be analyzed as part of Santee Cooper’s 2023 Integrated Resource Plan to be presented to the South Carolina Public Service Commission, next May. The utility offers the standard response when the choice of natural gas is criticized. “Santee Cooper needs additional natural gas generation to provide the flexibility to add more solar power.” The citation of all of the potential limits on solar are repeated – “the sun rises, falls, or hides behind an afternoon thunderstorm” – that we hear across the country from natural gas proponents.

MILEAGE FEES

Efforts to locate electric car assembly and battery manufacturing facilities in Georgia are fast making it one of the centers of the US electric car industry. It makes sense then that the state legislature is considering the substitution of mileage fees revenues for those derived from gas taxes. A bipartisan committee of state lawmakers has been established to discuss the future of its gas tax and a possible transition to a tax based on miles-driven.  The committee hopes to submit formal recommendations in December.

As part of the process, the Georgia DOT will begin a pilot program in 2023.

STUDENT HOUSING P3

The last two years were not kind to the privatized student housing sector. The pandemic was about the worst thing which could have happened to credits supported by revenues tied to occupancy. There was concern that the vulnerabilities exposed during the pandemic period could produce more obstacles to the continued expansion of these projects. We may see one answer in a bond issue being sold to finance privately constructed and operated student housing in a more traditional campus setting.

Eastern Michigan University was established as the state teachers’ college in 1849. EMU Campus Living, LLC’s proposed $200 million Project Revenue Bonds will finance a project which will encompass all of the university’s on-campus housing. It entails the construction of two new on-campus apartment buildings (700 beds), renovations to 8 existing residential halls/apartments (2,029 beds), and the demolition of 7 residential facilities (1,966 beds). In total, EMU housing stock will shrink from 4,307 beds to an end-state of 3,041 beds.

As opposed to most privatized student housing models, this is more of a P3 project. The university will continue managing the residence life functions of the housing system, the facilities are on-campus and do not secure the deal. The physical operations are to be managed by the LLC. The University’s financial support for the project is the major new facet of this private student housing deal security.

The project bonds are secured by a net revenue pledge of the project and includes the trustee’s first-lien security interest in various agreements between EMU Campus Living LLC/CFP3 and, respectively, the from Moody’ Board of Regents of Eastern Michigan University, the issuer, the property manager and the developer. An occupancy agreement from the university to make 1.0x debt service coverage from subordinated general revenue in case of a debt service shortfall from project revenue means the University is not fully protected from the project.

That security structure earned a Baa2 project revenue bond rating from Moody’s. That reflects the perceived strength of the University’s overall credit. The rating acknowledges the recent financial improvement bolstered by federal COVID relief funding. The university used it to strengthen its balance sheet and liquidity. The overall project reduces bed count by some 29% but this reflects demographic and other demand factors pressuring many schools.

PENN STATION DEVELOPMENT ON HOLD

The realities of the impact of the pandemic on demand for office space in NYC are still being measured and felt. One can look at occupancy rates for offices, rental demand, the performance of the economy dependent on commercial real estate. That is what made the continuing push for significant midtown office development a bit puzzling. Now, we may be seeing a real sign of how the recovery is progressing.

The renovation and expansion of Pennsylvania Station has long been a regular feature of New York politics. Before he resigned in the summer of 2021, Andrew Cuomo championed the Penn Station renovation project. His successor, Governor Hochul moved forward with a funding plan dependent upon commercial development. Vornado (Steven Ross’ development company) was named as the lead developer for 18.3 million square feet of office space and 1,256 apartments. 

Now, the timeline for development is in jeopardy. This week, Vornado let investors know that “the headwinds in the current environment are not at all conducive to ground-up development.”  This puts the station renovations under pressure as the price for the transit amenities alone is estimated in excess of $7.5 billion under the general project plan. The Empire Development Corporation estimates that $4.1 billion in payments in lieu of taxes are expected from Vornado in exchange for development rights to fund New York’s share of Penn Station renovation. 

The real question is whether the demand for office space and mass transit will return fully in the long term. The short-term indicators are weak – at least to Vornado. They cite tenants taking less office space, regardless of demand in Class A developments near transit infrastructure. At the same time, the East Side Access station underneath Grand Central is scheduled to commence service in December. It will take time for all to assess the impact on transit and the use of these stations.

The Penn Station redevelopment could be a real indicator of where the greater NYC economy is heading. The last two decades have seen a consistent stream of developments in all five boroughs. The city got used to that financially. In the wake of the pandemic, the potential for a recession will pressure the city’s most economically productive sectors. That could dampen the momentum for growth in the city’s revenue base. This makes the decision to delay development a significant indicator for our outlook on the city’s credit.

LABOR, UNIONS, AND ILLINOIS

Illinois has a long history of contentious labor relations. The Haymarket bombing and the Pullman strike were just two examples. With the state and especially Chicago involved with organized labor, those contentious relations continued over into the public sector. That led to the enactment of laws and constitutional changes to solidify the rights of workers.

In 2018, the then Governor supported litigation which was ultimately decided in the US Supreme Court that sought to overturn a prior decision in 1977, in which the Court said nonunion employees could be required to pay a portion of union dues, known as agency fees, to cover the cost of collective bargaining and prevent “free riders” — workers who get the benefits of a union contract without paying for it. That case – the Janus case- was decided in favor of the plaintiff, Janus.

Since then, the Governorship has changed and some of the temperature has gone down. That may change as Illinois voters are being asked to vote on Amendment 1, the Illinois Right to Collective Bargaining Measure. It would amend the Constitution to state that employees have a “fundamental right to organize and bargain collectively through representatives of their own choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety at work” and prohibit any law that “interferes with, negates, or diminishes the right of employees to organize and bargain collectively.”

The economy of the state continues to change with job sources like power plants and coal mines on the way out and new sources like electric auto and battery manufacturing. Unions are not as established at the companies developing those jobs, some of which are not nearly as hospitable to organized labor as was the case with traditional automakers and suppliers or in the electrical or coal industries.

There are three states where a constitutional right to organize exists – Hawaii, Missouri, and New York. This amendment is different in that it not only grants the right to collectively bargain but also seeks to prohibit the enactment of among other things, right to work laws. Language preempting right-to-work or other laws was not included in the state constitutions of Hawaii, Missouri, or New York. 

If approved, one can expect an immediate court challenge and that litigation will ultimately be decided by the U.S. Supreme Court.

Disclaimer:  The opinions and statements expressed in this column are solely those of the author, who is solely responsible for the accuracy and completeness of this column.  The opinions and statements expressed on this website are for informational purposes only, and are not intended to provide investment advice or guidance in any way and do not represent a solicitation to buy, sell or hold any of the securities mentioned.  Opinions and statements expressed reflect only the view or judgment of the author(s) at the time of publication, and are subject to change without notice.  Information has been derived from sources deemed to be reliable, but the reliability of which is not guaranteed.  Readers are encouraged to obtain official statements and other disclosure documents on their own and/or to consult with their own investment professional and advisors prior to making any investment decisions.

Joseph Krist

Publisher

CHICAGO

The City of Chicago received a rating upgrade from Fitch to BBB. The move rewards several actions which begin to address some of the City’s long-standing credit issues. The first is current performance. Chicago concluded 2021 (Dec. 31 fiscal year-end) with a large general fund surplus of $313.8 million or 6.3% of expenditures. The surplus reflected $221.6 million in revenue above budget, expenditures $107.2 million less than budgeted amounts and $782.2 million of American Rescue Plan Act (ARPA) revenue replacement. 

Pensions remain a significant credit factor for the City. The city increased its pension contributions from $848.5 million in 2016 to nearly $2.28 billion in 2022 as part of a five-year plan to reach the full statutorily-required pension contribution to the four single-employer pension funds covering municipal employees (MEABF), laborers (LABF), police (PABF) and firefighters (FABF). The proposed 2023 budget includes $2.39 billion in pension contributions (excluding a planned $242 million advance or supplemental payment, see below for more information), representing an increase of $92.3 million over the 2022 budget.  The statutory pension contributions are based on an amount that targets a 90% funding ratio by 2058 for all plans.

The upgrade comes in the midst of the City’s budgeting cycle for 2023. The city is projecting a surplus totaling $134 million in 2022 with year-end revenue estimated at $5.0 billion or $84.5 million above budget. The proposed 2023 budget totals $5.4 billion, which is nearly $392 million above the August budget forecast due to $160 million in baseline revenue growth, $56 million in tax increment financing (TIF) surplus and a $40 million initial payment from the city’s casino operator. The city projects a nearly 12% increase in YE 2022 sales tax revenues.

BALLOT TIME

For elections in 2022, 140 statewide ballot measures are certified for the ballot in 38 states.

The move to make it harder to get voter initiatives on the ballot continues. Whether it be Medicaid expansions or cannabis legalization, conservative (usually Republican) politicians have strengthened their efforts to take that power back for legislatures. In Arizona, voters will decide three constitutional amendments: (1) to create a single-subject rule for ballot initiatives; (2) to allow the legislature to repeal a voter-approved ballot initiative following a state or federal supreme court order striking down a portion of the initiative; and (3) to require a 60% vote for voters to pass ballot measures to approve taxes. In Arkansas and South Dakota, constitutional amendments to require three-fifths (60%) votes for certain citizen-initiated and referred measures are on the ballot. 

Marijuana is on the ballot again.

AR – Issue 4 would legalize marijuana use for individuals 21 years of age and older and authorize the commercial sale of marijuana with sales to be taxed at 10%. Of the tax revenue, 15% would be used to fund an annual stipend to all full-time law enforcement officers certified by the Commission on Law Enforcement Standards and Training that are in good standing. Adults could possess up to one ounce of marijuana. 

MD – Question 4 Amends the Maryland Constitution to legalize adult-use recreational marijuana and direct the legislature to pass law for the use, distribution, regulation, and taxation of marijuana.

MO – Amendment 3 Legalizes the purchase, possession, consumption, use, delivery, manufacturing, and sale of marijuana for personal use for adults over the age of twenty-one; allows individuals convicted of non-violent marijuana-related offenses to petition to be released from incarceration and/or have their records expunged; and imposes a 6% tax on the sale of marijuana.

ND – Statutory Measure 2 would legalize the personal use of marijuana for adults 21 years of age and older and allow individuals to possess up to one ounce of marijuana and grow up to three marijuana plants. The measure would require the Department of Health and Human Services, or another department or agency designated by the state legislature, to establish marijuana regulations, including for the production and distribution of marijuana by October 1, 2023.  

SD – Initiated Measure 27 legalizes marijuana use, possession, and distribution for individuals 21 years old and older

Taxes will be voted on in several states.

In Colorado, Proposition 121 would reduce the state income tax rate from 4.55% to 4.40% for tax years commencing on or after January 1, 2022. In Massachusetts, Question 1 creates a 4% tax on incomes that exceed $1 million for education and transportation purposes

SANTEE COOPER

Central Electric Power Cooperative is the largest customer of the South Carolina Public Service Authority. Central receives roughly 70% of its power supply from Santee Cooper. It distributes power to some 20 smaller distribution coops in the state. In the aftermath of the decision to end the Sumner nuclear project expansion, the utilities must plan for additional capacity to meet future demand. Santee Cooper was planning to develop new generating capacity which was fueled by natural gas. Now, those plans could be in doubt.

Central has announced a new power supply plan which includes purchasing power from existing and new power plants within and outside South Carolina, pursuing utility-scale battery storage projects and implementing voluntary customer programs to limit peak power needs. Like other generation and transmission coops across the country, Central faces pressure from its local utility customers to deliver power from a more diversified mix or resources.

The pressure to develop new generation continues, however. Santee Cooper plans to close a coal-fired plant at Winyah, S.C. by 2029. When it closes, the jointly operated Central-Santee Cooper system will lose 1,150 MW of electric generation capacity.

EMINENT DOMAIN

Two of the major midwestern energy projects facing issues over their efforts to acquire right of way face new obstacles. One is the Grain Belt Express transmission line. The Midcontinent Independent System Operator (MISO) which manages its regional power market has informed the Federal Energy Regulatory Commission is not eligible to be included in MISO’s long-term transmission planning process. The project is described as not an ‘advanced stage merchant transmission facility.

To be included, a transmission project must either be represented in a utility integrated resource plan — or in a “preferred plan” for utilities that do not have an IRP — or the project must have an interconnection agreement as of this month.

Summit Carbon Solutions has withdrawn its court request for immediate access to private property in northern Iowa for a land survey. The withdrawal follows an unsuccessful attempt by another pipeline company to obtain a temporary injunction in March of next year. 

AN EAST COAST/WEST COAST THING

The Ports of Los Angeles and Long Beach have long been the busiest ports in the U.S. As trade with Asia increased so did volume. This solidified their positions vs. those of the primary East Coast ports over the last two decades. Like so many other things, the pandemic impacted that long term trendline. That along with trade policy changes limited the growth of volume from the Chinese market. That alteration of trend now shows up in data.

The 10 largest U.S. ports saw a 5.5% drop in inbound container volume in September. The decline was driven by a 17% drop in inbound volume on the West Coast over the past 27 months. The report also noted a 24% reduction in ships waiting for berths compared to August. The Ports of L.A. has been delaying container storage fee increases for several months now as volumes decline.

The Ports of Savannah, New York, and Houston had the highest number of waiting ships in September. While overall volumes are expected to continue to decline, the current trend from West to East remains likely. The U.S.-China trade outlook would be considered uncertain at best with new restrictions on Chinese entities designed to reduce their trade with the U.S. There also remains the chance of a railroad strike which would impact West Coast ports unfavorably. Negotiations continue with West Coast longshoremen unions with a strike also possible.

SAN ANTONIO ELECTRIC – WHO IS IN CHARGE?

CPS is the municipal utility owned by the City of San Antonio. TX. Like many other utilities, it is planning for its future supply of power with an eye towards reducing or eliminating coal generation out of its supply mix. CPS owns one last coal-fired unit (Sprague 1 and 2) and it has committed to close Spruce 1, by 2030 and plans to convert the other unit, Spruce 2, to natural gas by 2028.  Now, the utility has admitted that the ultimate decision as to whether or not the Sprague units are closed is not the utilities decision to make.

The state grid operator ERCOT, is able to dictate whether or not the units can be shut down. When a utility seeks to shut down a generating facility it must submit a Notice of Suspension of Operations (NSO) with ERCOT. “Once the plant in question provides us with a Notice of Suspension of Operations (NSO) ERCOT performs a Reliability Must Run (RMR) assessment to determine if the retirement of the plant will cause a reliability issue. If it does, ERCOT may enter into an RMR agreement with the plant. 

CPS Energy will need to tell ERCOT exactly where the replacement megawatts will come from before getting permission to take any units offline. ERCOT may also require local transmission reliability upgrades to the grid before Spruce’s closure, which typically takes four to five years to install. In the interim, CPS drop roughly 3,000 megawatts of fossil fuel generation out of its portfolio by 2030. 

The plan to replace that power will likely leave clean energy advocates disappointed. CPS expects that some 20% of the fossil fuel generating plants capacity will be replaced by natural gas generation. The CPS plan currently calls for up to 900 megawatts of solar, 50 megawatts of energy storage and 500 megawatts of “firming capacity”.

MUNICIPAL ACCOUNTABILITY

The Portland Clean Energy Fund was created by a voter-approved ballot measure in 2018.  The fund receives revenue from a tax imposed on retail businesses. It is projected to reach $402 million by the end of the next fiscal year. Initially, it was projected to generate between $40 and $60 million annually. The flood of money has been accompanied by some shaky management and disclosure issues.

One of its initial grants had to be withdrawn and recouped when   the recipient group’s leader’s past — including a conviction for fraud and a string of unpaid tax bills. That highlighted weaknesses in the fund’s structure which raised concerns among the establishments forced to collect the tax. Those concerns were reinforced earlier this year when an audit of the fund by the City found  a lack of oversight and accountability systems and clear climate-action goals. 

Now the City is considering changes in the fund’s operations and management to address the concerns raised in the audit. The retailers had been calling for a hiatus in the fund’s operations until these issues were addressed. The proposed changes would allow governmental entities to participate in projects where before only NGOs were.

We expect that schemes such as this will be adopted on a more widespread basis. The growing pains of the Portland program highlighted important issues of disclosure and transparency. The concerns expressed around those issues are transferrable to any similar situation. It is something all investors should insist on.

JACKSON, MS. WATER UPDATE

Earlier this year we covered the difficulties at the water system serving Mississippi’s state capitol (MCN 10.17.22). One of the issues raised by activists was the role of the water system’s credit rating in raising the cost of capital for repairs and upgrades. This week, Moody’s released its latest review of the system’s credit.

Moody’s has affirmed the rating Ba2 rating for the revenue bonds of the City of Jackson Water and Sewer Enterprise of which there are outstanding approximately $240 million. The outlooks on the enterprise ratings are stable. At the same time, the rating action highlights the challenges facing the water system.

Here’s what Moody’s sees. They reference an ineffective billing and collection system, the system’s substantial and ongoing operating challenges as a result of considerable infrastructure weakness, the costs of repair and revenue loss which are still unknown. They note that environmental and managerial challenges which include last winter’s ice storm, a flood on the Pearl River in 2020, a decade long effort to update the billing and metering system, and a $900 million consent decree.

The system shut down cast a harsh light on the role of the State in the system’s demise. In response, immediate resources have been provided by the State of Mississippi Emergency Management Agency and the Emergency Management Assistance Compact and Mutual Aid Programs, which provided various technicians to the site to work on repairs. The federal government has deployed FEMA as well as personnel from the Environmental Protection Agency who are providing operational technical support.

In addition, the US Army Corp of Engineers is on site to provide assistance with an assessment of the water treatment facility including working with the city to develop a winterization and resiliency plan. The state has also committed to pay half of the cost of repairs to the water and sewer system, with the city expected to fund its share through a combination of FEMA monies, ARPA funds, IIJA disbursements or grants.

NEW ORLEANS RESILIENCE AND IDEOLOGY

While Hurricane Katrina was 17 years ago, the impacts of that event on infrastructure continue to be felt. That includes things like the source of electricity to power the drainage and sewer treatment systems. Recent near misses by hurricanes have allowed the problems with operations at the power station to go unaddressed. In the wake of these issues and the availability of additional infrastructure dollars, the Louisiana legislature gave its approval to a $44 million bond issue to replace aging and obsolete equipment for the generating facilities.

But wait! To actually issue the bonds, the Louisiana Bond Commission must give final approval. Here is where the story veers off track. Three of the commissioners, for clearly apparent political posturing purposes, refused to support the bonds for this project. The Sewerage & Water Board of New Orleans is obviously city owned and the City Council resolved not to enforce the state’s new limits on abortion. So, the three have held up the project.

Now, with the state election cycle a year away, the commissioners have relented and the bonds have finally been approved. The bond commission has not historically singled out local projects the Louisiana Legislature has already vetted and approved for state funding. It is in line with the general level of petulance exhibited by a growing cohort of conservative state officials who seek to use public finance to advance a particular ideological agenda.

It is not clear what changed in recent weeks but the bonds finally received preliminary approval last month. When it came up for final approval Thursday, it was one item in a group of more than a dozen other projects on the agenda that received approval without opposition.  

Disclaimer:  The opinions and statements expressed in this column are solely those of the author, who is solely responsible for the accuracy and completeness of this column.  The opinions and statements expressed on this website are for informational purposes only, and are not intended to provide investment advice or guidance in any way and do not represent a solicitation to buy, sell or hold any of the securities mentioned.  Opinions and statements expressed reflect only the view or judgment of the author(s) at the time of publication, and are subject to change without notice.  Information has been derived from sources deemed to be reliable, but the reliability of which is not guaranteed.  Readers are encouraged to obtain official statements and other disclosure documents on their own and/or to consult with their own investment professional and advisors prior to making any investment decisions.

Joseph Krist

Publisher

MEDICAID ON THE BALLOT AGAIN

If voters approve the referendum, South Dakota will be the seventh Republican-controlled state in the past five years to expand the low-income insurance program at the ballot box. A yes vote would expand its state Medicaid program to more than 40,000 people. 11 other states that have not expanded Medicaid, but only three — Florida, Mississippi and Wyoming — allow voters to collect signatures for a ballot measure. The expansions of Medicare which occurred under the Affordable Care Act added 17 million low-income Americans to the insurance rolls.

Under the American Rescue Plan enacted in 2021, Congress incentivized states to expand Medicaid by having the federal government cover an extra 5 percent of the costs of the program — on top of covering 90 percent of costs for the newly eligible population. In South Dakota, an American Cancer Society Cancer Action Network poll from August found that 62 percent of likely voters support the Medicaid expansion ballot measure.

A Kaiser Family Foundation analysis found that South Dakota would see increased costs of $50 million. The additional incentives however, would send $110 million to South Dakota. Opponents also tried to get a ballot measure to pass, in June to raise the threshold for approval to 60 percent. That effort was soundly defeated, meaning Medicaid expansion only needs 50 percent support to pass. A 60% vote requirement for such an initiative to pass in Florida is viewed as a serious impediment to expansion there.

The other path to expansion is legislative. The history is not favorable. The latest example is North Carolina where there is political consensus supporting expansion. There is one major hitch and that is the state’s Certificate of Need laws. The state’s hospitals would like that process to disappear. This would allow the various systems serving the state to expand and diversify their service areas. The state’s House and Senate passed separate bills on Medicaid expansion this summer but the CON issue prevented the final legislation of the issue.

DESALINIAZATION

California’s South Coast Water District has received approval from the California Coastal Commission for the construction of a water desalinization plant in the Orange County community of Dana Point. It would serve the district’s roughly 35,000 residents in Dana Point, South Laguna Beach and parts of San Clemente and San Juan Capistrano.  Proponents of desalinization have been trying for many years to have such a facility built to serve Southern California. In May, the Coastal Commission rejected Poseidon Water’s proposed $1.4-billion plant in Huntington Beach.

This plant uses different technology than the one in Huntington Beach. The water will be more costly than imported water from the State Water Project and the Colorado River. The Coastal Commission’s staff report estimates the increase at about 20% more at $1,479 per acre foot than for imported water. That translates to increased monthly costs of about $2 to $7 per household.  The district has already secured more than $32 million in federal and state grants. 

Opposition to these plants revolves around the potential damage to marine life. Other plants damage fish by drawing water directly. This plant would be the first commercial-scale desalination project to use slant wells that would collect seawater from beneath the seafloor. Seawater would be routed via a new pipeline to a treatment plant that will be built at a nearby site already owned by SCWD. SCWD plans to route its effluent to an existing, approved brine discharge system at South Orange County Wastewater Authority’s treatment plant. Those flows are discharged two miles offshore, 100 feet below surface water.

Other issues cited by opponents center around the use of electricity by these plants. The plant will include up to 5 acres of solar panels, which would provide 15% of that power. SCWD customers using 20% less water than they used in 2013. The district also sends 70% of its sewage flow to a treatment plant and reused for landscaping at local parks, resorts and other common areas.

CARBON CAPTURE

Opponents of carbon capture pipelines in Iowa have achieved a delay in efforts by one of the sponsors of a carbon capture pipeline to survey land for construction purposes. The sponsor had sought court support for its efforts to conduct such surveys under temporary restraining orders. One of those requests was rejected by a judge in Woodbury County.

The company has sought expedited court help because it says a delay of the surveys will impede its progress to its economic detriment. The company had argued that it needs to evaluate the land this month, otherwise those surveys might need to wait until the spring thaw. That will likely be the case as the judge noted that would have effectively ended the need for further litigation to approve the surveys. A ruling for Navigator would have resulted in its survey being completed, and the landowners’ arguments would have been rendered moot.

It is becoming a political issue. An Iowa newspaper surveyed candidates for the state legislature. The majority of Eastern Iowa political candidates seeking seats in the state Legislature who responded to the survey say they oppose using eminent domain for carbon dioxide pipelines. Two other county courts are weighing temporary restraining order requests which are being contested this week.

The debate also unfolds as residents of other proposed sites for carbon capture takes steps to review projects. A second Louisiana parish has enacted a moratorium on the drilling of wells associated with carbon capture. Louisiana utility Cleco recently revealed in a regulatory filing that the project in Rapides Parish will significantly increase the plants water consumption and reduce the generation output of the plant by 30%.

CALIFORNIA PROPOSITION 30

California voters will get to decide if a “millionaire’s tax” should be imposed to help people buy electric vehicles and to build charging stations, with some also dedicated to resources for fighting wildfires. Proposition 30 would raise the state’s top income-tax rate on Californians making more than $2 million to an eye-watering 15.05%—the highest in the country—from 13.3%. About 80% of the $3.5 billion to $5 billion in revenue annually would fund electric vehicles and charging stations—mostly for lower-income drivers—and the other 20% would go to wildfire mitigation. 

The driving force behind the campaign is Lyft has spent at least $45 million backing it. Facing a requirement that all rideshare vehicles be “zero emission” vehicles, it is not a surprise that a TNC would back such a measure. Without significant financial support, Lyft would not be able to require its drivers to drive an EV. Either its drivers get state help to buy electric cars or Lyft would have to bear the greater costs of EV deployment.

The initiative hits several hot button issues. The employment status of its drivers, the role of TNC vehicles in road congestion, the concentration of the income tax base among a relatively small group of taxpayers, and even school funding. It also comes in the midst of federal efforts to address issues with the employment status of drivers for companies like Uber and Lyft. On 11 October, the US Department of Labor (DOL) proposed a rule to clarify the classification of employees and independent contractors under the Fair Labor Standards Act (FLSA).

CLIMATE LITIGATION

New Jersey has joined the ranks of states suing oil companies over the issue of climate change and their role in it. Like the other suits, it alleges that the oil companies new of the risks of their businesses to the climate and that their failure to disclose them damaged the state. New Jersey does have one powerful motivation as it cited the impact of Superstorm Sandy in New Jersey, killing 38 and leaving more than 300,000 homes damaged.

This suit comes as the oil majors have asked the U.S. Supreme Court to review for a second time whether a lawsuit filed against them by Baltimore over the costs of adapting to climate change belongs in federal court. The companies were denied in their latest attempt to get to the Supreme Court this past April. Since the May 2021 Supreme Court decision, several appeals courts including the 1st, 3rd, 4th, 9th and 10th have all remanded similar  suits to state court. Those cases were filed by state and local governments in California, Delaware, Hawaii, Maryland, New Jersey and Rhode Island.

Another suit has been making its way through the Eighth Circuit seeking to stop the reestablishment of an Interagency Working Group on the Social Cost of Greenhouse Gases (“IWG”) established by President Barack Obama. The State of Missouri is the lead plaintiff along with Alaska, Arizona, Arkansas, Indiana, Kansas, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, and Utah. Its roster includes seven cabinet members along with economic and science members of the Administration. It was disbanded by President Trump.

The issue driving the suit is the executive order reestablishing the Group which directed the IWG to publish interim and then final estimates of the social costs of greenhouse gas emissions (hereafter, “interim SC-GHG estimates”), and required federal agencies to use these estimates when monetizing the costs and benefits of future agency actions and regulations. Those estimates have been released only in preliminary form but the states sued nonetheless.

The Court decided that the States are requesting a federal court to grant injunctive relief that directs “the current administration to comply with prior administrations’ policies on regulatory analysis [without] a specific agency action to review,” a request that is “outside the authority of the federal courts” under Article III of the Constitution. The Court did point to a specific path for the issue to be decided. “these policy disagreements are for the people to decide through their elected representatives in the legislative and executive branches of government.”

INSULAR CASES

After the Spanish American War, the U.S. came into possession of several territories. They included Cuba, Guam, American Samoa and Puerto Rico. Under the terms of Treaty of Paris was a statement noting that Congress would determine the political status and civil rights of the natives of the island territories. In the early 1900’s, the Supreme Court was asked to review nine cases in total, eight of which related to tariff laws and seven of which involved Puerto Rico as a part of that process. 

The challenges to the precedent gained the most notice in association with Puerto Rico and its issues surrounding its status. Earlier in arguments about another case touching on the status issue, Justice Gorsuch had expressed a pretty clear view that he thought the Insular Cases were incorrectly decided, this gave hope to many that issues around the status of Puerto Rico and its citizens might lead to a decision to overturn the Insular Cases decision.

The hopes were dashed in the short term when the Court announced that it would not review a new challenge to these Cases. Unfortunately for Puerto Rico, this case revolved around plaintiffs from American Samoa which is treated differently by Congress than is the case with other territories.

MUNIS AND TVA

The operations and energy development plans of the Tennessee Valley Authority (TVA) have been at the center of the energy debate. Its reliance on older large-scale coal plants have led to debates by several long-term customers to consider replacing TVA as their primary supplier. Much of the demand for change is customer driven. This has led municipal electric systems to reconsider their power supply arrangements.

Memphis has been at the center of that debate as its municipal utility is considering whether to maintain TVA as their power supplier. As that debate unfolded, other municipal utilities considered their positions. Now, one utility serving the City of Huntsville, AL has made an effort to move to a greener energy source. The city council last week unanimously approved an agreement for Huntsville Utilities to purchase power from Toyota Tsusho, which is building a solar power facility near a Toyota Motor Manufacturing in north Huntsville. 

In 2020 the city council approved a power supply flexibility agreement with TVA. That agreement allowed Huntsville Utilities to purchase up to 5% of its electricity from a source other than TVA. Huntsville Utilities will build a $2.6 million substation to connect with the solar development, which is expected to be completed in February 2024. That power would be procured by the city at a rate that is lower than what TVA could provide.

Huntsville made a fairy straightforward case for the move. “If TVA were to raise its base rate an average of half a percent a year and increase the fuel cost adjustment by half a percent, the project would provide nearly $500,000 in savings for HU each year.” 

SPITTING IN THE WIND

The core of ideological attorneys general trying to “punish” financial institutions which employ ESG principals by withholding business from them has grown by one more. The Attorney General in Virginia is joining Arizona, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, Tennessee and Texas in an “investigation” of six major American banks. The plan is to issue a civil investigative demand, which acts as a subpoena, for the institutions to produce documents related to their involvement with the United Nations Net-Zero Banking Alliance. 

The Virginia AG contends that the banks – Bank of America, Citigroup, Goldman Sachs, JP Morgan Chase, Morgan Stanley and Wells Fargo – by participating in the Banking Alliance are trying to impose UN rule. It’s a favorite theme of conspiracy theorists on the political right. The Virginia AG has already joined another Missouri-rooted move to “investigate” Morningstar, Inc. and Multianalytes for alleged violations of state consumer protection laws. He claims that the ratings are driven by “credible allegations” that the companies “allow(ed) anti-Israel bias to infect the ESG ratings they provided to investors.” 

If you are an ESG investor, these suits have to raise governance issues. The idea that market participants have to toe the line established by ideological trends should raise issues for all investors. This applies to progressive attorneys general as well.  Interventions like this latest one made in an effort to fight market trends don’t usually succeed in that fight. If you are a believer in markets, these continuing partisan efforts call into question the dedication to the rule of law which has supported the market on the part of “conservative” political figures.

Disclaimer:  The opinions and statements expressed in this column are solely those of the author, who is solely responsible for the accuracy and completeness of this column.  The opinions and statements expressed on this website are for informational purposes only, and are not intended to provide investment advice or guidance in any way and do not represent a solicitation to buy, sell or hold any of the securities mentioned.  Opinions and statements expressed reflect only the view or judgment of the author(s) at the time of publication, and are subject to change without notice.  Information has been derived from sources deemed to be reliable, but the reliability of which is not guaranteed.  Readers are encouraged to obtain official statements and other disclosure documents on their own and/or to consult with their own investment professional and advisors prior to making any investment decisions.

Joseph Krist

Publisher

HOSPITALS AND THE CLIMATE

The end of October will mark the passage of ten years since Hurricane Sandy devastated the northeastern U.S. While there are many images which can be recalled, one was especially telling. The idea that three major hospital facilities experienced severe damage and that operations at those facilities could be curtailed for an extended period focused much attention on their location and vulnerability to floods. Hurricane Ian focused attention on Florida’s hospitals given the ever-increasing levels of population along the state’s coasts.

Climate researchers at Harvard recently released a study of the risks posed to hospitals from flooding associated with storms. The study examined 682 acute care hospitals in 78 metropolitan areas along the East Coast and Gulf Coast, all situated within 10 miles of the shore. It found that 25 of 78 metropolitan statistical areas (MSAs) on the U.S. Atlantic and Gulf Coasts have half or more of their hospitals at risk of flooding from relatively weak hurricanes. 0.82 m of sea level rise expected within this century from climate change increases the odds of hospital flooding 22%.  In 18 MSAs, at least half of the roads within 1.6 km of hospitals were at risk of flooding from a category 2 cyclone.

The areas of greatest risk are not a surprise. The Miami-Ft. Lauderdale-Palm Beach strip up the east coast of Florida contains the greatest risk from road flooding in addition to the obvious location risk of the institutions.  New York, New Orleans, and Tampa were other areas with substantial vulnerability.  Rising sea levels, put more hospitals at risk from hurricane induced storm surge. Sea level rise of 2.69 feet increases the odds of hospital flooding from any strength.

That level of sea level rise puts hospitals and beds in 6 MSAs (Easton, MD; Hammond, LA; Pensacola-Ferry Pass-Brent, FL; Savannah, GA; Washington, NC; and Washington-Arlington-Alexandria, DC-VA-MD-WV) at risk that would otherwise be unaffected by a category 2 storm without sea level rise and increases beds at risk by over 50% in 7 MSAs (Baton Rouge, LA; Beaumont-Port Arthur, TX; Boston-Cambridge-Newton, MA-NH; Corpus Christi, TX; Deltona-Daytona Beach-Ormond Beach, FL; Philadelphia-Camden-Wilmington, PA-NJ-DE-MD; and Virginia Beach-Norfolk-Newport News, VA-NC) from a category 2 storm.  

WATER UTILITIES

Water utilities have historically been a reliable sector in terms of creditworthiness. The revenues collected are usually protected in a bankruptcy of a general government as water revenues are treated as special revenues. This makes it harder to use revenues from a financially healthy utility to fund non-utility expenses. In combination with the absolute necessity of the supply of water, the sector has been a steady credit performer over an extended period of time.

In recent years, that image has been weakened somewhat by management and operations issues at several utilities. The Birmingham, AL bankruptcy largely was rooted in issues with its water and sewer utilities. Newark, NJ faced issues with lead pipes delivering tainted water. This summer, the Jackson, MS water system was unable to deliver water to its customers. That was reflection of mismanagement, neglect, and a distinct lack of support from the State of Mississippi for its state capitol.

Now another water system serving a state capital is under scrutiny and a candidate for takeover. The City of Trenton, NJ has long experienced operational and management difficulties. The state Department of Environmental Protection has cited the utility on multiple occasions in recent years for failing to ensure the safety of the 29 million gallons of water the utility delivers daily to 200,000 residents of Trenton and four adjacent townships. The state sued the city and utility in 2020, in a lawsuit joined by the impacted municipalities, for failing to pay for mandated upgrades.

In Mississippi, the situation reflects a real lack of support from the state. That reflects the realities of local and state politics. As suburban growth around Jackson continued, the remaining customer base became more concentrated among the city’s poorer (and let’s face it Blacker) population. The failure by management to address long standing infrastructure needs of the system make it vulnerable to operating and supply issues. The state’s neglect of the City and its water system was not at all benign.

The unwillingness of local utility officials to raise rates and address capital needs in Trenton has renewed calls for a new entity to operate and fund the City of Trenton water system. Now, state legislation is being offered that would establish an oversight commission to take control of the Trenton Water Works and monitor reforms. It would a create Mercer Regional Water Services Commission (Trenton is the county seat of Mercer County) would be created to oversee Trenton Water Works’ rate-setting, service quality, and infrastructure operations, as well as remediation measures to bring the utility into environmental compliance. State officials and leaders of the five municipalities served — Ewing, Hamilton, Hopewell, Lawrence, and Trenton — would comprise the bulk of the 17-member commission.

Water quality concerns drive the effort. There are issues with lead pipes as is the case with so many old utilities. Water quality was top of mind this summer when a study found 50% of homes serviced by Trenton Water Works in Hamilton tested positive for legionella bacteria, which can cause Legionnaires’ disease. The state sued the city and utility in 2020, in a lawsuit joined by the impacted municipalities, for failing to pay for mandated upgrades.

The City’s ability to help financially is limited. In August, Moody’s downgraded the City of Trenton, NJ’s outstanding general obligation bonds to Baa2 from Baa1. The outlook has been changed to negative from stable. The downgrade affects approximately $252 million in outstanding debt. Politics have overwhelmed the practical needs of the City.

The city council and the mayor have not only been unable to pass a budget for 2022, they were unable to agree to authorize debt service. The mayor publicly appealed to the state for assistance, which came in the form of a directive from the Division of Local Government Services (DLGS), ordering debt service to be made on time and in full. That is simply poor governance.

This brings us to an issue which some have raised in connection with utilities, especially water utilities. Many of the most publicized issues with municipal water systems have occurred in systems surrounded by weak economies. This has in turn led to those systems serving an increasingly poor and BIPOC population. This has led some to try to link ratings downgrades to race and imply that the rating agencies hold minority communities to different standards.

Over a five-decade career, I have had a hard time defending the rating agencies over many issues. This is one where the criticism is badly misplaced. Trenton, Birmingham, Newark, Flint, Detroit are all cities with significant water utility problems and yes, they all serve primarily BIPOC communities. But the other common threads are weak local resources and management (pass a budget on time) and an unwillingness to avail themselves of state assistance.

The lower ratings assigned to these credits usually have not been based solely on economics and demographics but on an inability to arrive at solutions by overcoming local politics. Rating agencies do not make rates, appoint management, or elect officials. These are weak credits as far as ratings are concerned.

PUERTO RICO HIGHWAY AUTHORITY DEBT RESTRUCTURING

Judge Laura Taylor Swain confirmed Wednesday the Puerto Rico Highway and Transportation Authority’s Plan of Adjustment (POA-HTA), a restructuring that -beyond cuts to the public debt- will require the public utility to reorganize its operations; will allow 30 years of consecutive toll increases adjusted to inflation; and will prepare the way to transfer all of Puerto Rico’s highways to private operators.

The plan cuts the agency’s debt by more than 80% and saves Puerto Rico more than $3 billion in debt service payments. HTA must establish a toll management office that is exclusively responsible for toll roads, separate responsibility for construction and maintenance between toll roads and non-toll roads, and transfer the Urban Train (Tren Urbano) to the Puerto Rico Integrated Transit Authority. The HTA Plan also requires HTA, during all times in which new HTA bonds (or refinancings thereof) remain outstanding, to maintain and comply with a debt management policy that imposes certain limitations on further borrowing after the plan becomes effective.

TAMPA TRANSIT STOPPED BY COURTS AGAIN

For the second time, efforts to get a transportation funding initiative off the Hillsborough County, FL ballot have been successful. (MCN 9.19.22). As was the case the first time, local anti-tax advocates seized on detailed ballot requirements to have the proposed removed from the ballot. Opponents have used the fact that the proposed ballot item would, if approved, violate requirements that the ultimate responsibility for identifying projects and allocating money lies with elected commissioners, not a pre-determined formula contained in the citizen-initiated referendum.

The ballot initiative was described as confusing so as to make voters think that approving the initiative meant approval for specific projects. Decide for yourself if the following was too “confusing”: “Should transportation improvements be funded throughout Hillsborough County, including Tampa, Plant City, Temple Terrace, Brandon, Riverview, Carrollwood, and Town ‘n’ Country, including projects that: Build and widen roads; Fix roads and bridges; Expand public transit options; fix potholes; Enhance bus services; Improve intersections;  Make walking and biking safer By levying a 1% sales surtax for 30 years and funds deposited in an audited trust fund with citizen oversight.”

Conservative activists use these challenges to defeat as many tax initiatives as they can. The arguments are never usually about the need for better roads and more public transit. They focus on procedural issues. The frustration in Tampa is that initiative backers relied on prior court actions when designing the second initiative. It is another example of ideology getting in the way of progress.

WHAT’S LEFT IN IAN’S WAKE

It is becoming clear that a lack of flood insurance is going to weigh on the recovery from Hurricane Ian in Florida. CNN did an analysis of data from the Federal Emergency Management Agency that shows how serious a situation it is. That analysis showed that some 25% of single-family homes in Lee County, by the coast, are covered by federal flood insurance. On Sanibel Island, about half of homes are covered. It is the inland counties where the lack of protection is highest – 4% of single-family homes in Seminole County, 3% of homes in Orange County and 2% of homes in Polk County are covered by flood insurance.

People without flood insurance will still be eligible for assistance payments from FEMA and any additional aid which might be approved by Congress. Those payments are not designed to replace flood insurance. In Seminole County more than 5,200 residential buildings have been damaged by the storm. Polk County has 3,000 buildings damaged in the storm, Orange County has 1,200, and Volusia County on the state’s eastern coast has at least 4,000 damaged.

The majority of the damage appears to be flooding related. Federal flood insurance limits payments for single-family home damage at $250,000 and contents of the home at $100,000. There will also be significant automobile losses adding to the cost burden for recovering residents. One bit of positive news. Moody’s says that Citizens Property Insurance Corporation can withstand damage claims. Citizens, an entity created by the Florida legislature that provides coverage for coastal properties, has the resources to withstand damage claims from Hurricane Ian. Florida Hurricane Catastrophe Fund’s reimbursement capped at $17 billion. Primary insurers will share a significant portion of the loss with The Florida State Board of Administration Finance Corporation (Florida Hurricane Catastrophe Fund, FHCF). The fund is well positioned to cover claims from Hurricane Ian because it has financial resources on hand that approximate its statutory reimbursement cap.

COAL TAKES ANOTHER HIT

The efforts of some to hold on with the last of their fingernails to the use of coal to generate electricity failed again. This time, the State of Montana failed to persuade a federal court that two newly-passed Montana laws intended to stop majority owners of Colstrip from closing the power plant were constitutional. The Court ruled that the laws violate the Commerce Clause and Contract Clause of the U.S. Constitution, as well as the Federal Arbitration Act.

The legislation authorized the state executive branch to issue $100,000-a-day fines or dictating maintenance and repairs the government finds necessary.  The federal court ruled that the laws served no legitimate purpose and instead attempted to thwart the business decisions of the power plant’s majority owners.

That interferes with efforts to negotiate financial issues stemming from the closure which is driven by the four out-of-state utilities which own 70% of capacity. The court concluded that SB 265 substantially impaired the rights of the Pacific Northwest owners under the Contract Clause of the U.S. Constitution, which prevents states from making law impairing the obligations of contracts.

MUNI UTILITIES MOVING FORWARD

Four Florida energy companies have signed agreements to join as members of the Southeast Energy Exchange Market (SEEM), effective Jan. 1, 2023. Two of the four are municipal utilities – the Jacksonville Electric Authority and Seminole Electric Cooperative – recently expressed their intent to join the expanded platform and expect active energy trading in mid-2023.

The platform is intended to facilitate sub-hourly, bilateral trading. This is designed to allow participants to buy and sell power close to the time the energy is consumed, utilizing available unreserved transmission. The two utilities join several municipal utilities which are founding members of the SEEM.  They include Associated Electric Cooperative, Dalton Utilities, MEAG, N.C. Municipal Power Agency No. 1, NCEMC, Oglethorpe Power Corp. and Santee Cooper.

NYC AND RESILIENCE

It will be ten years since Hurricane Sandy flooded Manhattan. The storm did some $19 billion worth of damage. The recovery was aided by some $15 billion of aid from the federal government. Now, the NYC Comptroller has released a report which documents how the City has used those resources. They can be viewed either positively or negatively. To us, they reflect the complex process of designing, approving, funding and financing capital projects in NYC. The fact that the money has been available has been no guaranty that the needed projects have been undertaken.

Of the $15 billion of federal grants appropriated for Sandy recovery and resilience, the City has spent $11 billion, or 73%, as of June 2022. The City has spent 66.2% of the nearly $10 billion in FEMA Sandy grants, and 92.4% of the $4.2 billion HUD CDBG-DR grants. The anticipated completion dates for some of the uncompleted Coastal Resiliency Projects are as far out as 2030. A major component ‘is the East Side Coastal Resiliency project (ESCR) which is expected to create a network of seawalls on existing parkland to protect Manhattan.

Four agencies received over a billion dollars each in FEMA grants: the New York City Housing Authority (83.5% spent), Health and Hospitals Corporation (45.3% spent), Department of Environmental Protection (58.8% spent), and Department of Parks and Recreation (61.8% spent). The report highlights one issue of import – the location of so much of the New York City Housing Authority’s housing stock which is vulnerable to flooding. Today, 17% of NYCHA’s buildings are in the 100-year floodplain; this number will grow to 26% by the mid-century.

On the private real estate side, In the past decade as new waterfront developments have steadily increased, market rate values of real estate in the 100-year floodplain have increased to over $176 billion – a 44% increase since Superstorm Sandy.

Rising tides and more frequent storms will put upwards of $242 billion (in current market value) at risk of coastal flooding by the 2050s – a 38% increase in value from today with Brooklyn experiencing the most dramatic increases in property values at risk in the coming decades. The tax lots in the current 100-year floodplain are estimated to generate $2.0 billion in annual property taxes. As the floodplain grows, more tax lots will be put at risk, threatening $3.1 billion in annual projected property tax revenues by the 2050s (using current property values).

HOSPITALS IN THE POST-COVID WORLD

This week’s poster child for the uncertain operating environment for hospitals is University Hospitals in Cleveland, OH. The A2 rated credit by Moody’s like many hospitals, confronts three primary sources of pressure – the aftermath of the pandemic, general inflation, and labor costs and availability. These three factors as well as the supply chain issues everyone is facing are pressuring hospital finances across the country.

University Hospitals operates an integrated network of 21 hospitals (including five joint ventures), more than 50 health centers and outpatient facilities, and over 200 physician offices in 16 counties throughout northern Ohio. The system reports a net operating loss of $184.6 million in the first eight months of 2022. To deal with the revenue shortfalls, the system has announced that it will lay off 100 administrative workers. It will also leave unfilled some 300 additional administrative jobs.

Utilization in the post-pandemic environment has been below what was expected at many institutions. This pressuring profits and more particularly impacting balance sheets. This is reflected in less favorable debt rations and declines in days cash on hand. It should not be a surprise that many hospitals were at least partially shielded from the full financial impacts of the pandemic. Only after massive injections of operating cash to hospitals slowed and ended did many of the impacts of the pandemic become clear.

Disclaimer:  The opinions and statements expressed in this column are solely those of the author, who is solely responsible for the accuracy and completeness of this column.  The opinions and statements expressed on this website are for informational purposes only, and are not intended to provide investment advice or guidance in any way and do not represent a solicitation to buy, sell or hold any of the securities mentioned.  Opinions and statements expressed reflect only the view or judgment of the author(s) at the time of publication, and are subject to change without notice.  Information has been derived from sources deemed to be reliable, but the reliability of which is not guaranteed.  Readers are encouraged to obtain official statements and other disclosure documents on their own and/or to consult with their own investment professional and advisors prior to making any investment decisions.

Joseph Krist

Publisher

PIGS AND ELECTRICITY

Next week, the U.S. Supreme Court hears oral arguments next week in a case about California’s Proposition 12, a law passed by Golden State voters in 2018 that requires that pork sold in California come from facilities where sows have pens that are at least large enough for the animals to turn around and stand up. In National Pork Producers Council v. California, the industry is challenging the law as being inconsistent with the dormant commerce clause, which bars state laws that hinder interstate commerce.

California is arguing that overturning the law would raise issues of states’ rights. The pork industry argues that the law has the practical impact of regulating out-of-state conduct [and] was impermissible under the dormant commerce clause. The petition effectively seeks to have the dormant commerce clause interpreted in such a way that would broaden its use. That may actually work against the pork producers. At least three of the justices are in record as being effectively against the clause.

The case has emerged as one with potential impacts on the energy sector. Laws which have the effect of regulating power suppliers in other states via state law – “extraterritoriality” – have been challenged before. The industry is concerned on a couple of levels. Clean energy advocates cite state laws and regulations governing utility operations as a major driver of renewable energy adoption. They fear that a win for the pork industry could undermine those efforts.

Some 30 states and the District of Columbia have Renewable portfolio standards (RPS) in place, according to the National Conference of State Legislatures. The Court has not had to rule on dormant commerce clause issues impacting the energy industry but at least one justice has. In 2015, Justice Neil Gorsuch ruled that Colorado’s RPS violated the dormant commerce clause because it required changes by out-of-state energy producers.

The pork producers will have to convince the Court that the law was designed to disadvantage non-California producers. The Biden administration has filed briefs in support of the pork industry. They took the position that California’s law does not directly benefit the state’s residents, as the state attorney general claims, unlike state statutes to prevent or limit environmental harm. The two are thus “not comparable.”

WINDY CITY BUDGET

Mayor Lori Lightfoot has proposed her executive budget for the City of Chicago in 2023. It has gotten attention because it deals with two politically fraught issues: taxes and pensions. The $16.4 billion budget plan does not include a property tax increase. That is a change from the last several years. Along with stable property tax rates, the mayor proposes to fund its pension system with contributions in excess of its annual actuarially required payment.

The extra payment is budgeted at $242 million. The City fully funded required contributions to all four pension funds for the first time ever in 2022. The 2023 budget would pay $2.6 billion, an increase of 15% from a year earlier. City revenues for 2023 are now expected to come in $260 million above an August projection. There is also a payment of $40 million from a casino operator which is being applied to pension funding. The pension funding would come at a time of poor investment results from equity and fixed income market performance.

The overall size of Lightfoot’s proposed 2023 budget is 1.3% smaller than the overall 2022 budget was. The mayor started from a stronger fiscal position with an anticipated estimated budget gap being lower especially relative to those in recent years. The 2022 budget gap was $733 million. The mayor was able to craft a budget with a beginning gap of $128 million.

The more solid position overall also occurs while spending for public safety is increased. Chicago’s main fund for city operations is the corporate fund. The police department’s budget would increase to $1.94 billion from $1.88 billion this year.

FEDERAL CARBON CAPTURE PROGRAM

The passage of the Inflation Reduction Act and its provisions impacting climate change has begun to manifest itself in program announcements. The latest comes from U.S. Department of Energy (DOE). DOE announced its $2.1 billion Carbon Dioxide Transportation Infrastructure Finance and Innovation (CIFIA) program. Enacted under the Infrastructure Law, CIFIA offers funding for large-capacity, shared carbon dioxide (CO2) transportation projects located in the United States.

Appropriated annually through 2026, CIFIA will support shared infrastructure projects, including pipelines, rail transport, ships and barges, and ground shipping, that connect anthropogenic sources of carbon with endpoints for its storage or utilization. The goal of the program is to provide economies of scale and help form an interconnected carbon management ecosystem that will enable commercial deployment of carbon management technologies. 

There is no doubt about the current federal view of carbon capture technology. “Carbon management technologies such as direct air capture, carbon capture from industry and power generation, carbon conversion, and CO2 transportation and storage technologies must be deployed at a large scale in the coming decades to meet the United States’ net-zero greenhouse gas goals by 2050.”

SALT RIVER PROJECT GOVERNANCE

While the debate goes on about what is and is not ESG investing, there continue to be clear examples of situations which should clearly raise issues with investors interested in one or more of the ESG trio. Our view is that the hardest one to find real examples of is in the governance sector. Governance, it seems, can be so broad and so subject to politics in the municipal space in particular that it is hard to find clear examples.

This isn’t about day-to-day management of an entity issuing municipal bonds. It is about the oversight and direction given by those charged with that responsibility. As politics have become more local and more heated, the potential for some activist participants to throw wrenches into the operating and management processes continues to grow. One recent example is the Salt River Project in Arizona.

SRP has been locked in a debate with environmental activists (of whom four are members of the SRP board) over the expansion of the utility’s natural gas fired generators. SRP initially wanted to expand an existing natural gas plant by placing 16 gas generators on a space at a site designed for said expansion. The plant is located in the “historically Black” municipality of Randolph.

Activists in the environmental movement were able to effectively accuse SRP of racism. The environmental justice and equity movement managed to convince state regulators not to approve the expansion at the Randolph site. So, that’s the end of the simple story? Guess again. After the proposed gas plants were rejected, the four “environmental” board members took it upon themselves to send an unsolicited letter demanding that the regulators not approve the plant.

The activists may have been acting as individuals but once an individual takes a position at a public agency, they have different issues that they may have to subsume in order to effectively carry out their responsibilities. A board member is expected to take a bit more nuanced approach especially from the inside. One has to ask how effective the move was now that the SRP Board has announced that the four members have been censured by majority vote of the board of directors.

There might be a cause to be made for opposing the plant and the environmental interests may have “won” by virtue of the fact that the utility has approved a significantly smaller natural gas project at its Copper Crossing solar plant in Florence . SRP had already purchased eight of the 16 gas turbines in anticipation of Coolidge expansion approval. And the resolution of the environmental justice and equity issues? The cities of Florence and Randolph are within a couple of miles of each other so unless the winds stop blowing…

EV HEADLINES

The old General Motors small-car assembly plant in Lordstown, Ohio became a symbol of economic politics in the 2016 election cycle. The plant had been shut down and residents were highly concerned about their economic outlook. Then candidate Trump went to Lordstown and advised residents not to sell their houses because there was a plan to rejuvenate the plant.

Six years and an administration later, the Lordstown site has returned to the production of motor vehicles. Commercial electric vehicle startup Lordstown Motors says it has slowly started production of its first model, the Endurance pickup. The Foxconn backed entity has produced its first three trucks and plans to begin a slow rollout of some 450 trucks in the first half of 2023.

The company will obviously need more capital to fund expansion but it had nearly $200 million of available assets to fund operations.

Rivian reports that it produced 7,363 vehicles at its manufacturing facility in Normal, Illinois and delivered 6,584 vehicles in the quarter ended Sept. 30. At roughly the same time, the local community college announced the construction of a facility designed to train workers for the electric vehicle industry.

LITHIUM SETBACK

There has been much attention focused on the extraction of lithium, a key component of the emerging electrified economy, through mining. The usual concerns regarding mining have been expressed. In addition, the locations of many potential sources of lithium are located on culturally significant lands in the American West including many Native American burial grounds. Those issues have led to lawsuits and delays around a prime source of lithium in Nevada.

The key role of lithium in battery development has driven extraction activities to places like the Salton Sea in California. There Berkshire Hathaway planned its facility to extract lithium from the brine in the Salton Sea. Berkshire already operates multiple power plants near the Sea where it flashes steam off brines brought from deep underground at temperatures around 700°F (371°C) to spin turbines that produce electricity. Technology for an extra processing step could be connected to one of the existing plants to extract lithium before the brine is reinjected underground. 

The State of California and the federal government both have provided grants to Berkshire for their lithium development effort. The federal grants were subject to a final negotiation process. The State grant was supposed to help during the development of the process of separating out the lithium from the brine.

The federal grant was meant to aid the development of one lithium-based product. Thirteen months after the process started, the federal grant was withdrawn in March of this year. Now issues are emerging with the lithium extraction process. The very heat which made the Salton Sea an attractive geothermal power source is apparently not compatible with the production equipment needed for the right lithium product.  

COLORADO RIVER

The Metropolitan Water District of Southern California, Imperial Irrigation District, Coachella Valley Water District and Palo Verde Irrigation District – proposed cutting their annual allotment of river water by 400,000-acre feet, or around 130 billion gallons. It is all part of the effort to reduce usage of Colorado River water by between 2 and 4 million gallons per year. In June, the federal government set a deadline for the states in the “lower basin” to craft an agreement to reduce their water usage. When the deadline for a new plan passed in August, the federal government announced that the river was in a Tier 2 shortage condition for the first time in its history.

The shortage declaration means Arizona, Nevada and Mexico will have to further reduce their water usage beginning in January. Of the impacted states, Arizona will face the largest additional cuts – 592,000 acre-feet – or approximately 21% of the state’s yearly allotment of river water. The number from the water agencies isn’t a final offer, and could change depending on what kind of federal money is available to the agencies under the Inflation reduction Act.

CONGESTION PRICING FACES PRESSURE

New Jersey Governor Murphy has let it be known that he has lobbied at the highest levels – with the President – about his issues with the proposed congestion pricing plan under consideration by New York City. The specific ask – that the federal government complete a full environmental impact study before the new tolls are implemented. Such a study would be welcomed not only by New Jersey commuters but also by residents of the Bronx where much truck traffic would be diverted.

Other concerns from west of the Hudson include the lack of real consultation with a significant potential source of expected revenue. It already costs $16 to cross into NYC via the three Hudson River crossings into Manhattan. Other issues include the inability of the existing mass transit infrastructure to handle extra riders. The environment is also hardened by some childish moves by legislators in both states.

Ridership on New Jersey Transit trains is estimated to have risen to 60% of prepandemic levels but the agency does not expect it to fully recover for several years. The Port Authority’s PATH trains are also carrying about 60% percent of its prepandemic passenger loads.

MORE ESG PERFORMANCE ART

The State Treasurer of Louisiana has announced the withdrawal of state funds from Blackrock. The move is another example of the sort of performance art which has characterized the debate over climate change. The Treasurer is expected to run for Governor next year and ESG investing is shaping up as a campaign issue. The Treasurer’s announcement seems to cover significant assets – Louisiana had already removed $560 million from BlackRock investments from its treasury fund and that $794 million will be divested by the end of 2022. The treasurer’s decision affects day-to-day state deposits and transactions.

Tellingly, the Treasurer’s announcement does not cover the state’s pension assets. While $1.2 billion of funds is not insignificant, the real goal of anti-ESG state financial officers is to take pension funds away from fund managers who do not toe the anti-ESG line. That probably not be enough to satisfy the anti-ESG movement which is being driven by the right-wing group, the American Legislative Exchange Council (ALEC).  ALEC has written “model legislation” it says will help states protect their pension funds from “politically driven investment strategies.”

The moves come in the midst of a significant debate over proposed SEC rules which would require reporting entities to support their claims regarding ESG in regular scheduled financial disclosures. Those plans have received howls of protest from issuers including many in the municipal bond market. Then again, most efforts to improve disclosure over the last four decades have been met by howls of protest.

The announcement came at virtually the same time as another major power generator – Duke Energy – announced a program to expand access to renewable sources of electricity in South Carolina. The program addresses a straightforward business concern. Duke cites the fact that “a majority of South Carolina’s leading employers have explicit decarbonization goals, and the carbon intensity of electricity suppliers is top-of-mind for economic development prospects too.” 

Duke’s plan would enable large-load customers to contract with either of Duke Energy’s South Carolina utilities to provide locally sourced environmental attributes, including renewable energy certificates (REC), generated from both utility-owned generation assets as well as third-party owned generation assets and could include energy-storage options. The fact that the plan is the result of customer input simply highlights the political nature of efforts to fight adaptation to climate change.

In New Jersey, a state Senate committee voted to advance a bill to force the State pension funds to divest from any investments in the fossil fuel sector. The state has an established history of divestiture reflecting politics of the day. It has laws which require requires state pension funds to divest from businesses that boycott Israel. The state has also moved to divest from gun manufacturers, the owner of Ben and Jerry’s over boycotts of Israel, and companies which has invested in South Africa. 

Disclaimer:  The opinions and statements expressed in this column are solely those of the author, who is solely responsible for the accuracy and completeness of this column.  The opinions and statements expressed on this website are for informational purposes only, and are not intended to provide investment advice or guidance in any way and do not represent a solicitation to buy, sell or hold any of the securities mentioned.  Opinions and statements expressed reflect only the view or judgment of the author(s) at the time of publication, and are subject to change without notice.  Information has been derived from sources deemed to be reliable, but the reliability of which is not guaranteed.  Readers are encouraged to obtain official statements and other disclosure documents on their own and/or to consult with their own investment professional and advisors prior to making any investment decisions.

Joseph Krist

Publisher

MTA

For a credit which has not received much good news in the last 2 ½ years, it will take what it can get. What it gets this week is a maintained rating of A3 from Moody’s with a stable outlook. The rating reflects “the system’s essential service to a vast and economically robust service area and strong political and financial support from New York State, New York City and the Government of the United States of America, which have been instrumental in supporting the credit through the coronavirus pandemic and recovery.

The rationale for why we have had concerns about the credit for some time are reflected in Moody’s comments. “Due to the structural increase in remote work, MTA’s forecast for its “new normal” ridership level has dropped to 80% of pre-COVID levels by FY2026. As a result, MTA’s large structural budget gap will remain 16% of budget, and the authority will exhaust its federal stimulus aid a year earlier than previously forecasted.

In addition, budget gaps could grow if ridership recovery underperforms, future fare increases are deferred or canceled, upcoming collective bargaining agreements exceed plan, and/or high inflation or a weakening economy depress dedicated tax collections. MTA’s high leverage position will remain well-above pre-COVID levels due to reduced revenues and new borrowing, and debt service costs will grow steadily to meet substantial capital and debt plans.”

The rating news comes as MTA reaches a post-pandemic high in ridership. Subway and bus ridership is roughly 60 percent of pre-pandemic levels on the weekdays. The LIRR and Metro-North commuter rail lines report daily ridership at 200,000 and weekend ridership is at 90% of pre-pandemic levels. At the same time, 1 million vehicles traveling on MTA bridges and tunnels on Friday Sept. 16 which puts the use of those facilities above 2019 levels.

Over the next 24 months while MTA draws down its remaining federal aid, some policy decisions will highlight a real dilemma for the Authority. New York is the only major metro system in the world which provides 24-hour service. Whenever the issue is raised it is usually concurrent with budget concerns for MTA. The reality is that a significant segment of lower income employment is held by people who rely on mass transit to get them to and from night shifts.

That is not going to change regardless of daytime office attendance. So, in deciding how to achieve long-term cost reduction, it will walk a fine line as it seeks to reduce service without hurting employment where it matters the most. The politics will reflect the fact that the same working class cohort which rides the subway at night is the same class cohort which was deemed “essential” during the pandemic.

D.C. TRANSIT EXPERIMENT

Over the last several years, the District of Columbia has undertaken a number of efforts to address concerns over traffic as well as issues related to the Metro. On traffic, the City established a program which linked traditional taxis with city employees. It was intended to reduce the size of the fleet of city cars and traffic while providing support to the taxi community impacted by Uber and Lyft. Another program established loading/drop off zones in the evening hours for Ubers and Lyfts around clubs and the like.

The operating issues which have plagued the Metro are well known and the process of reintegrating idled rolling stock is underway. Those issues have made pandemic recovery all the more difficult and limited demand and ridership. To stimulate demand, a bill has been introduced to offer direct payments to Metro passengers. It would provide a monthly $100 subsidy to D.C. residents to be used on Metro, building on the existing Kids Ride Free program, which serves more than 50,000 D.C. school children on an annual basis. 

Qualifying residents would get the initial $100 subsidy, and get monthly installments thereafter to keep them at that level. (So, if a rider only spent $25 on Metro in a given month, they would get $25 as a subsidy the following month to bring them back to $100.) Any expenses above the monthly subsidy would have to be covered by the user. According to the council committee analysis, the $100 a month would cover the transit needs of 92% of adult users in the city.

The city’s chief financial officer has estimated the cost of the subsidies at $373 million for the first four years. The council estimates that 78% of D.C. residents do not currently receive any transit subsidies from their employer.  Federal employees already get transit vouchers so they do not qualify. The concern over the program has to do with the issue of funding. The legislation says the costs will be covered by the additional (and unexpected) revenue that D.C. has been taking on a yearly basis, the committee report also concedes it is “by no means a predictable funding source” as federal pandemic funding runs out.

It’s another example of the impact of federal funding for pandemic-related issues which has allowed a short-term condition to become a long-term assumption. The bill is based in part on an assumption of steadily growing District revenues even in the face of a recession. That and the full draw down on pandemic aid would create real fiscal pressure.

AUTOMATION COMES TO PRISON

When one talks about automation it is usually about the negative impact on employment. The pandemic changed the view of a lot of people about the work they did, where they did it, and for how much pay. That phenomenon is being seen throughout the country as businesses and governments cope with new attitudes towards in-person work. Help wanted signs are everywhere.

The latest sector to experience the phenomenon is the field of corrections. Most of the reporting one sees in this sector revolves around efforts by usually rural localities to keep the local state prison open and providing secure jobs with pensions and benefits. As incarceration rates fall, the need for some facilities no longer exists and corrections officers lose their jobs.

Now changing attitudes towards the nature and value of corrections jobs is causing a rethink among potential employees. The situation is leading to understaffing of the guard function. It is estimated that some states see 25% of their corrections jobs unfilled. It is a combination of the nature of the work and improving pay at other jobs. In some jurisdictions, higher minimum wage requirements have raised wages such that they are becoming competitive with jobs like those in corrections.

So, what are states to do? Florida has “temporarily” closed three prisons. Nevada is taking a unique approach based on technology.  The Nevada Department of Corrections is seeking funding for the use of drones and surveillance bracelets to minimize the need for a physical presence. It is part of a plan called “Overwatch”. Ultimately through the use of technology, the DOC hopes that a centralized surveillance system could be established which would allow limited staff to see activity inside housing units and outdoor areas at facilities throughout the state.

Other states are taking a more traditional approach. Nebraska raised an officer’s typical annual salary from $41,600 to $58,240, under a 2021 law.  Pay matters in places like West Virginia where salaries for corrections officers are among the lowest in the country. Corrections officers in West Virginia currently start at a salary of $33,214, which is lower than the neighboring states of Virginia ($34,380), Ohio ($37,630), Pennsylvania ($40,270), and Maryland ($43,370). West Virginia estimates that it is short 1,000 officers in its system. Gov. Jim Justice declared a state of emergency earlier this year over staffing issues, bringing in 150 National Guard troops to provide support.

While the nature of the job may not be typical, the issue of government wages in a period of inflation is still a problem. It is legitimate to ask what would someone rather due for $15/hour with benefits – load shelves at Home Depot or spend 8 hours + in a state corrections facility? The corrections officer gets $15.97/hour to work in a de facto mental health/corrections system. It’s one example of the realities facing government employers which implies higher costs and revenue demands for taxpayers going forward.

MILEAGE FEE SETBACK

San Diego and its neighboring municipalities announced a wide-ranging plan for transportation in the greater San Diego region. The price tag was $160 billion. It is designed to fund a variety of initiatives through 2050. The plan included the imposition of a “road usage charge.” The fee was planned to be implemented in 2030.

The plan includes building out more than 800 miles of express or “managed” lanes designated for service buses, carpools and toll-paying customers. It also funds the completion of improvements a 70-mile regional bicycle network. Mass transit investment would fund a proposed Purple Line rail project between National City and the San Diego neighborhoods of City Heights, Kearny Mesa and University City. In total, the plan calls for building a 200-mile commuter rail system stretching from the U.S.-Mexico border to downtown San Diego, El Cajon and Oceanside.

Designed to placate as many constituencies with stakes in the rollout of a significant capital construction program, the plan has instead created some unexpected alliances and pitted historical political allies against each other. The plan assumes that voters will approve three half-cent sales tax increases by 2028. The first proposed tax increase under the plan was to be voted on this November.

Interest group politics got in the way. Organized labor and environmental groups supported the plan but they were unable to get enough voters to sign petitions this summer to qualify the first such tax hike for November’s ballot. It seems that “progressive” officials don’t like the idea of removing the usage fee. If that pattern continues, the plan will have a $14 billion hole in the agency’s spending plan. The debate exposed all of the potential political hurdles facing efforts to thwart climate change in the transportation space.

WORKER SHORTAGES IMPACT LOCAL OPERATIONS

The worker shortages plaguing local governments continues to impact operations. A number of transit agencies are having to cut back service as the result of an inability to hire workers. The result has been reduced service in a variety of jurisdictions impacting both local needs as well as long established commuter routes. The latest examples of the problem come from the western US.

The Utah Transit Authority has announced that beginning in December, it will reduce or eliminate service on 20 bus routes in Salt Lake, Davis and Weber counties.  The move reflects the inability of the Authority to attract drivers. The agency is down 85 bus drivers from a roster of 1,200 budgeted positions. That is a vacancy rate of 7%. UTA pays trainees $20 an hour and increases the wage to more than $21 an hour after training. 

In Colorado, the CO Department of Transportation (CDOT) has announced that it will develop housing in an effort to lower the cost of housing for snow plow drivers and other workers. CDOT is current short of some 300 maintenance workers who fill potholes, fix guardrails, and plow snow. The Department is planning to spend $6.5 million on housing projects along the Interstate 70 corridor and in mountain towns. Some of this reflects competition from the wealthy villages for the same workforce at either higher wages or affordable housing.

PORTS

Ports have been at the center of the post-pandemic trade recovery. Volumes have shown steady increases as demand ramped back up for consumer goods. There has been much focus on activities at the West Coast ports especially those at LA and Long Beach. Between labor stoppages, container backups, and issues related to air pollution, the two San Pedro ports have been under pressure. Put all of that together and add US/China trade issues to the mix and changes were bound to occur.

Now, the Port of New York and New Jersey moved 843,191 TEUs (imports + exports) in August, its busiest August ever. The Port of Long Beach and LA were second and third in cargo volume as more trade moved away from the West Coast due to ongoing concerns about labor strikes and lockouts. The Port of Los Angeles ranked third in the nation in August, moving 805,314 total containers. That was 37,877 less than the Port of New York and New Jersey. The Port of Long Beach came in second, moving 806,940 export and import containers.

The Port of Los Angeles diverted 40,000 containers to the Port of Long Beach in August when dockworkers at the Port of LA refused to work at the automated section of APM Terminals, the largest container-handling facility citing safety concerns. An International Longshore and Warehouse Union slowdown is claimed to have resulted in reduced productivity at the Oakland and Seattle-Tacoma ports.

PIPELINE HEADLINES

Officials in 44 Iowa counties have now taken action to express concerns about the three proposed carbon pipelines for the Hawkeye State. The latest counties to do so expressed “concern about training for emergency crews who’d have to respond to pipeline ruptures, as well as potential construction damage to land and drainage.” A second letter from Adair County said that “its board is not opposed to the purpose or construction of the pipeline, but is opposed to eminent domain being used “as a way of achieving it.”

Everyone acknowledges that state law allows the pipeline developers to use eminent domain currently. Those laws were practically intended to support public utilities. Pipeline opponents as well as impacted landowners contend that the carbon pipelines are not “public utilities”.

In Illinois, the Navigator CO2 developer of its planned pipeline to transmit captured carbon dioxide from ethanol plants. Navigator CO2 has refused to make public the list of landowners along a proposed half-mile-wide corridor covering 250 miles in Illinois. The company has informed many landowners that “Navigator CO2 would be seeking right-of-way “on or near” their property, and noted that if it can’t reach voluntary agreements with landowners to allow permanent easements, “we may need to request the right of eminent domain (‘condemnation’)” from state regulators. 

They already are. Navigator Heartland Greenway LLC, a wholly-owned subsidiary of Navigator, in July filed with the Illinois Commerce Commission seeking permission to build the pipeline and request eminent domain powers.  

The Commission will ultimately decide the eminent domain issue. A 2011 Illinois state law – the Carbon Dioxide Transportation and Sequestration Act – requires the Illinois Commerce Commission to consider local landowners’ concerns about public safety, infrastructure, the economy, and property values before approving permits for carbon dioxide pipeline projects to use eminent domain. 

Ironically, the law was enacted primarily to facilitate a prior attempt at successful sequestration which ultimately failed in 2015. There are systems being tested at the municipally-owned Prairie States Energy Campus but results to date are underwhelming.

Disclaimer:  The opinions and statements expressed in this column are solely those of the author, who is solely responsible for the accuracy and completeness of this column.  The opinions and statements expressed on this website are for informational purposes only, and are not intended to provide investment advice or guidance in any way and do not represent a solicitation to buy, sell or hold any of the securities mentioned.  Opinions and statements expressed reflect only the view or judgment of the author(s) at the time of publication, and are subject to change without notice.  Information has been derived from sources deemed to be reliable, but the reliability of which is not guaranteed.  Readers are encouraged to obtain official statements and other disclosure documents on their own and/or to consult with their own investment professional and advisors prior to making any investment decisions.