Category Archives: Regulation

COVID-19: Milder than We Thought

The latest numbers from the state and hospital-association COVID-19 dashboards suggest that the coronavirus in Virginia still is retreating. The seven-day moving average of test-positive cases for COVID-19 tests continues to fall, hitting a new low of 5.8%.

Meanwhile, two measures of intensive hospital utilization have hit new lows. The number of COVID-19 patients in Intensive Care Units fell t0 219 yesterday, down from a high of 469 in early April, while the number on ventilators declined to 99, from a high of 302 in mid-April.

New research from the federal Centers for Disease Control suggest that only one in ten COVID-19 cases have been identified through testing, so the number of confirmed cases, which stands at 60,570, is likely the tip of the proverbial iceberg. If the national rate holds true here, more than 600,000 Virginians have contracted the virus. In other words, about 7% of the population has been infected. The bad news is that the virus still has a long way to run.

Here’s the good news: If that 600,000 figure holds up, and if the Virginia Department of Health’s 6,071 figure for the number of hospitalizations is reasonably accurate, it means that only 1% of the population that gets the disease ends up hospitalized for it. Given the 1,700 Virginia deaths so far, it also means that only three out of 1,000 who get the disease die from it. Continue reading

Richmond’s “Numbnuts” Cripple Busch Gardens

by Kerry Dougherty

Five more days until Virginia finally enters Phase 3 of the slo-mo reopening of the commonwealth.

But if you were planning to take the kids to Busch Gardens or Kings Dominion to celebrate, forget it.

Thanks to ridiculously small crowd limits, both sprawling theme parks said they can’t comply with Virginia’s rules. The management of the parks want to know why they are lumped in the same category as bowling alleys and skating rinks.
Under the governor’s rules “entertainment venues” can open at 50% capacity, but with no more than 1,000 visitors.

On a good summer day Busch Gardens draws upwards of 24,000 guests. Holding the 383-acre park to 1,000 visitors would be economic suicide for one of the biggest tourist attractions in Virginia.

So Busch Gardens will remain shuttered. And the economy of the so-called Historic Triangle of Williamsburg, Yorktown and Jamestown will continue to circle the drain.

“Our parks are largely outdoor facilities spread across hundreds of acres but we continue to be lumped in with unrelated models like bowling alleys and skating rinks,” said Kevin Lembke, president of Busch Gardens. Continue reading

COVID Workplace Rules Endorsed, But Not Final

The Northam Administration’s Safety and Health Codes Board agreed yesterday that COVID-19 in the state’s workplaces demands an emergency state response, but the nature and exact wording of that regulation remains undecided.  If adopted, formal regulations come with the potential for heavy penalties for employers cited for failures.

Earlier versions of the key documents have already been revised by state staff, so should be reviewed again by concerned parties. The draft rules (here) and a related 200-page briefing package (here) were first made available June 12 and then revised June 23, right before Wednesday’s meeting. Further changes are likely.

A window for on-line written comments closed June 22, but more than three thousand were received, with the business community reaction overwhelmingly negative. To review the written comments already filed visit the meeting information page (here) and scroll down to a long list of documents. The massive set of online comments are on this related page on Virginia’s Regulatory Town Hall website.

The vote to proceed with something came after a contentious virtual emergency meeting where only members of the board and staff were able to speak. Three of the board’s members opposed the emergency declaration and three abstained, perhaps reflecting the broad and strong opposition the draft proposal generated from Virginia’s busines community. It will meet again to dive into the actual text soon.  Continue reading

Northam Gets a Couple of Things Right

by James A. Bacon

I do have my issues with Wise King Ralph, but I have to give credit where credit is due. He has done two things right in the past few days. He has given the OK to move to Phase 3 of the COVID-19 lockdown on July 1, and he has refused to buckle under to violent protests in Richmond. Virginia’s capital city will not turn into Portland or Seattle East.

It was not a foregone conclusion that the Governor would accede to a further relaxation of the emergency restrictions promulgated to fight the spread of the COVID-19 virus. While Virginia metrics were all heading in the right direction, the national media were in full-blown hysteria mode over a rise in infection rates in other states that had moved to reopen their economies. Even local media, which reported on beach vacationers bringing the coronavirus with them back to the Roanoke region, were sounding the alarm. Indeed, Northam said explicitly that he was paying attention to what was happening in other states.

But in the end, Wise King Ralph did the right thing. Phase 3 represents a big step forward in getting back to normal. The measures it continues to maintain — restrictions on mass gatherings with the potential to turn into super-spreader events — are defensible.

Meanwhile, the Governor, while not exactly posing as Mr. Law and Order, defended city and state police officers who earlier yesterday used tear gas and rubber bullets to clear a sit-in outside of Richmond City Hall that was blocking traffic. As The Virginia Mercury put it, Northam expressed “befuddlement” at the ongoing protests against police brutality even though he had promised “future action on police reform and other important equity issues.” Continue reading

It’s About Time: Phase 3

by Kerry Dougherty


After weeks of plummeting death rates, dwindling hospitalizations and a sharp drop in positive test results for COVID-19, slow-walking Gov. Ralph Northam announced that the  commonwealth can enter Phase Three.

But not until next week, on July 1.

Northam made the announcement at yesterday’s press conference.

For months, Northam’s pressers have been characterized by gloom and arbitrary rules that confounded the public.

From the governor’s nonsensical “we’re a commonwealth and we’re going to act like a commonwealth” to his ridiculous no-sitting-or-loud-music-on-the-beach edicts, these bi-weekly broadcasts have been a source of dread for many of us.

Phase Three should have happened weeks ago. Nevertheless, sometimes we must simply be grateful for the crumbs the governor sprinkles in our direction. Continue reading

Open the Schools

By James C. Sherlock

I have written here multiple times about the terrible and disproportionate effects that school shutdowns are having on poor children in Virginia.

The public school is an enterprise that has no admission standards. We do it that way on purpose, to try to give every American child as much opportunity to learn and develop into a successful citizen as we can. Public schools represent a core value of the American way of life and provide foundational support to our republic.

Virginia Guidelines vs. CDC Guidelines

On June 9, 2020 Governor Ralph Northam announced guidance for a phased approach that allows Virginia schools to slowly resume in-person classes for the coming academic year. There were two sources for the Governor’s guidance, the Virginia Department of Health (VDH) and the Virginia Department of Education (VDOE). Both dropped the ball.

VDH summarized and truncated the published CDC school considerations to slow the spread of COVID-19 to the point that they are at best unhelpful. It is difficult to imagine why they did not just publish the CDC guidelines, but they did not.

That flawed guidance was absorbed into the VDOE reopening guidelines.

One of the core recommendations that originated in VDOE — remote learning for large classes of K-12 students— has been shown in every study to have been ineffective in April and May. An alternative schedule will prove in practice unexecutable. Continue reading

COVID Regs Unclear, Unneeded, Contradictory

By Steve Haner

More than two dozen Virginia business associations have asked that the state’s Safety and Health Codes Board reject proposed workplace regulations to prevent COVID-19, stating they are unclear, contradictory, and not needed in light of other existing worker protections.

Some of the largest statewide associations, such as the Virginia Manufacturers Association, National Federation of Independent Business, and Virginia Retail Federation are on the list. So are some regional chambers of commerce and the Thomas Jefferson Institute for Public Policy. You can read their 13-page submission here. The conclusion reads:

“It is unreasonable to apply “one size fits all” COVID-19 regulations to all employers and employees.  Codifying guidance is not a reasonable replacement for regulation. It is confusing why after three months, the Regulations are being pursued through an emergency procedure, especially after OSHA (Occupational Safety and Health Administration) rejected the AFL-CIO’s petition for an emergency temporary standard for COVID-19 and the US Court of Appeals for the District of Columbia Circuit denied their petition for a writ of mandamus to compel OSHA to issue an Emergency Temporary Standard for Infectious Diseases.”

The draft rules (here) and a related 200-page briefing package (here) have only been available since June 12. The public comment period closes tonight, and the board is set to meet Wednesday, in a format where the public can only watch. More details are provided in a Bacon’s Rebellion post from this weekend.

Continue reading

Virginia’s Recover, Redesign and Restart 2020 Manifesto – Legal Status

by James C. Sherlock

Recover, Redesign and Restart 2020, discussed yesterday here, was presented as a set of “guidelines,” but the Governor’s manual for re-starting public schools this fall amidst the COVID-19 epidemic included a mandatory reporting provision clearly designed to intimidate schools and school boards.

Let’s look at the legal status and implications of those guidelines.

Following the Governor’s unbroken pattern, the General Assembly was not called into session on this crucial matter, but rather a massive panel of “stakeholders” was convened with more than twice as many members as the elected General Assembly.

The members of the panel apparently considered its constitutional and legal questionability, preposterous length, pedantic unreadability, bureaucratic checklists, designated spaces for self-criticism in the Maoist tradition and internal contradictions to be features not bugs. The rest of us not so much.
Continue reading

Sweeping COVID Workplace Regulation Proposed

By Steve Haner

The Northam Administration’s Safety and Health Codes Board will hold an emergency meeting Wednesday –- in a virtual process allowing no public interactions – to impose sweeping new regulatory mandates related to COVID-19 on Virginia workplaces.

They could take effect immediately upon Governor Ralph Northam’s signature, and will not disappear if an end is declared to the current emergencies or the threat of the disease dissipates.

The draft rules (here) and a related 200-page briefing package (here) have only been available since June 12. The window for on-line written comments closes Monday evening. The affected businesses have had some advance warning because union and employee activists have been pushing similar proposals in other states and at the federal level, often without success.

The stated goal is to prevent spread of disease in work spaces, and screening, sanitation, face coverings and social distancing are directed in detail. The focus on workplace safety follows COVID-19 outbreaks in food processing and health care settings. These proposals, however, will reach into every Virginia retail, office or manufacturing space.

To review the comments already filed (776 as of Saturday morning), or to add your own, visit the related page on Virginia’s Regulatory Town Hall website. The deadline for filing is Monday night at 11:59 p.m. The chances that the comments will be assessed and studied before the votes take place on Wednesday are slim and it appears, so far, much of the debate is focused on mask mandates. That is a minor part of this quite broad proposal.  Continue reading

COVID Restrictions Slam Black Businesses the Hardest

Stephanie Hart, owner of Brown Sugar Bakery in Chicago. Restaurant Business describes her travails in “Recent Crises Add to Life-or-Death Struggles for Black-owned Restaurants.”

by James A. Bacon

If Governor Ralph Northam needs further justification for reversing his emergency shutdown measures, perhaps he should consider this recently published paper by Robert Fairlie with the University of California-Santa Cruz.

Analyzing the impact of COVID-19 social distancing restrictions on small business, Fairlie found that they disproportionately hit minority enterprises. The number of active business owners in the U.S. plummeted 22% between February to April 2020. “African-American businesses were hit especially hard experiencing a 41 percent drop. Latinx business owners fell by 32 percent, and Asian business owners dropped by 26 percent,” Fairlie writes. Immigrant and female businesses were similarly affected.

Using the logic of disparate impact, in which any adverse differential between whites and blacks is deemed to be evidence of discrimination or structural bias, the emergency decrees enacted by Northam and other activist governors can only be described as racist.

Northam may not have promulgated the decrees with racist intent, but motives really aren’t the issue. What matters are outcomes. Continue reading

COVID Deaths Are Way Down. Wear Masks to Keep Them Down.

by James A. Bacon

The number of new deaths in Virginia attributed to the COVID-19 virus fell to three yesterday, according to data published this morning on the Virginia Department of Health COVID-19 dashboard. That’s the lowest number since April 6.

Meanwhile, the number of COVID-19 patients being treated in hospitals fell to 857, the lowest number since the Virginia Hospital and Healthcare Association began tracking the number in early April. And in yet another sign that the epidemic is receding, at least for now, the seven-day moving average of tests that yielded positive results for the virus fell to 7.2%.

And in other coronavirus-related news…. A study by Virginia Commonwealth University professor Christopher T. Leffler and colleagues finds that wearing face masks can dramatically reduce the per-capita death rates of COVID-19. The study examined 198 countries with confirmed cases of COVID-19; death rates varied from an average of one per million people to 94 per million. Researchers analyzed a range of public health factors to examine which had the biggest impact on the differences in death rates. Continue reading

Who Pays The Unpaid Bills? Watch Out.

By Steve Haner

This was published this morning in The Roanoke Times and then distributed by the Thomas Jefferson Institute for Public Policy.

There may be a second wave of COVID-19 disease coming, but the secondary effects of various pandemic economic decisions may hit us sooner. Rent and utility bills customers can delay paying because of the crisis will eventually come due.But for whom?

The Legal Aid Justice Center looked at U.S. Census survey data that indicated many Virginians have fallen behind on their rent and did not expect to pay their next bill. It predicted an “eviction catastrophe” as eviction and foreclosure bans end, and lenders and landlords rush into newly reopened courts for judgments.

“The Governor should use emergency powers to immediately enact a moratorium on evictions or should allow localities to enact their own until the General Assembly can address tenants’ mounting debt. The General Assembly should create relief for tenants who are significantly behind in rent payments through a waiver or rent cancellation plan,” the advocacy group asserted.

Governor Ralph Northam took up the call, and the Virginia Supreme Court has agreed to hold off eviction proceedings a few more weeks, until June 28.   Continue reading

The ACP Wins One But The War Drags On

By Peter Galuszka

The $8.5 billion Atlantic Coast Pipeline has won a significant legal victory but the war is far from over.

The U.S. Supreme Court, in a 7-2 decision, has ruled in favor of project operated by Dominion Energy and Duke Energy saying that its 42-inch pipeline can cross under the Appalachian Trail in the George Washington National Forest.

The Court ruled that the pipeline can pass 600 feet underneath the trail and that the U.S. Forest Service has the right to allow a right of way. The Richmond-based 4th Circuit Court of Appeals had previously ruled that the Forest Service had no such authority.

Dissenting, Justices Sonia Sotomayor and Elena Kagan wrote that the U.S. Minerals Leasing Act does give the federal government the right to regulate federal land, including trails. Justice Clarence Thomas, who wrote the majority ruling, said that plans to bury the pipeline under the Appalachian Trail represent an easement which is not the same as “land.”

The project still faces eight other permitting issues involving the Forest Service, the U.S. Fish & Wildlife Service, the National Park Service and the U.S. Army Corps of Engineers. Continue reading

How the New Pool Rules Are Working Out

by James A. Bacon

The latest iteration of Wise King Ralph’s emergency COVID-19 decrees, provides for the possibility of reopening pools and fitness facilities in Virginia. However, the new diktat comes with many conditions attached. Either pools and fitness facilities comply with all the rules, or they stay must closed.

The homeowners association of the neighborhood Steve Haner and I live in has a clubhouse with a small fitness facility and a pool. HOAs across Virginia have banded together and hired legal counsel to determine how to interpret the rules. Here is the analysis provided by our HOA manager:

The new requirements are very restrictive and make it very challenging for a pool or exercise facility to comply. Among these requirements are: increasing the social distancing from 6 feet to 10 feet; limiting use of a pool, e.g.  to swimming laps; increases in signage; disinfecting before and after each use; monitoring to make sure that homeowners are following all requirements; and, most significantly, screening homeowners for symptoms of coronavirus and COVID-19 prior to admission to the facility and making judgments as to their health situation in accordance with all confidentiality and privacy laws. Additionally, our insurance carrier has counseled us to proceed as if we do not have liability coverage for COVD-19 related claims.

Continue reading

Phase Two. It’s About Time.

by Kerry Dougherty


Welcome to Phase Two, Virginia.

Looks like we can once again dine indoors and go to the gym now that Gov. Ralph Northam is finally loosening his authoritarian grip on the commonwealth. Like dutiful subjects, we are supposed to be grateful.

I’m not.

I’m more annoyed about the lockdown now than I was back in March, when I watched in stunned disbelief as the governor declared a state of emergency, ordered people to stay home and stomped all over our booming economy.

All for what turned out to be a nursing home crisis.

Yes, the latest numbers continue to show that 56% of all of Virginia’s COVID-19 deaths have been in old-age homes. When you take those fatalities out of the total number of Virginians who succumbed to the virus so far you get a death rate of about 7 per 100,000.

For that we yanked kids out of school for three months, released murderers from prison, threw almost 800,000 hard-working Virginians onto unemployment and killed an untold number of small businesses forever. Continue reading