Energy and Environment

September 16, 2020 10:32AM

Time to Shut Down the DC Metro Rail

Highway traffic in the Washington DC metro area returned to 80 percent of its pre‐​pandemic levels in July, but DC transit carried only 16 percent as many riders as it did in July 2019. Metro’s own surveys have found that most of its riders don’t plan to return until and unless an effective COVID vaccine is found.

Given this, there is no better time to simply shut down the Metro rail system, thus saving taxpayers billions of dollars. Conceived with racist assumptions and faulty financial projections, the system has proved to be a financial and operational disaster. The region would do better rely more on cars and, in some places, buses.

When the system was originally designed, planners knew it would cost more than buses so they planned to build lines only into white neighborhoods because they figured blacks wouldn’t be able to afford the fares. When blacks objected, a line built into black neighborhoods in Anacostia was followed by a concerted effort by the DC government to gentrify the neighborhoods, forcing many families out.

As of 2018, the median income of DC‐​area transit commuters was more than $60,000 a year, which was 8 percent more than that of all workers in the region. More DC transit commuters earn above $75,000 a year than earn less than $35,000 a year.

Despite the high incomes of transit riders, fares don’t come close to covering the costs of running the system. As author Zachary Schrag documents in his book, The Great Society Subway, the original planners of the 103‐​mile rail system expected that fare revenues would cover 100 percent of operating costs and 80 percent of capital costs. As of 2018, fares covered barely half the operating costs and have paid for none of the capital costs, which turned out to be four times greater than anticipated.

The federal and local governments dealt with high costs by having the federal government pay most of the capital costs while local governments paid most of the operating subsidies. What neither took into account was that rail systems must be completely rebuilt about every 30 years. Metro’s staff warned as early as 2002 that the system would need billions for capital replacement over the next decade, but no one came up with the money.

Instead of rehabilitating the system, Virginia and Maryland politicians demanded that the federal government fund construction of the Silver Line in Virginia and Purple Line in Maryland, which together cost nearly $10 billion. The Silver Line actually harmed the system as a whole because it shares tracks under the Potomac River with the Blue and Orange lines, which were running at capacity during rush hours. Adding Silver Line trains meant cutting Blue Line trains that were carrying more riders than the Silver Line trains.

Meanwhile, the system decayed as predicted. In 2009, when the computerized signaling system that kept trains from crashing into one another failed, a crash killed nine people. Metro’s response to was to turn off the computers and let train operators, whose previous job had mainly been to open and close doors at the stations, drive the trains, resulting in jerky service and more crashes. When smoke in the tunnels from worn‐​out insulators killed a passenger in 2015, Metro’s response was to shut down its lines to inspect all of the insulators. But the fundamental problem of worn‐​out equipment remains, with at least two further smoke incidents in the last year alone.

The National Transportation Safety Board’s report on the 2009 crash criticized Metro’s “lack of a safety culture.” More than a decade later, that hasn’t changed. A safety audit published last week by the Washington Metrorail Safety Commission found that the agency still did not have a safety culture.

Metro often had rail operations employees working longer hours than specified by its own safety guidelines. It allowed employees to work with broken equipment and sometimes attempted “to manipulate safety event investigations that create unacceptable safety risks.” Metro, added the audit, was a “toxic culture workplace” that “includes racial and sexual comments, harassment, and other unprofessional behavior.”

When Metro’s current CEO, Paul Wiedefeld, took the job in November 2015, he promised to improve the safety culture. Instead, he has been besieged by revenue and budgetary problems that were made worse by the coronavirus. Last week, Metro released a budgetary report to its board projecting that–despite having received nearly a billion dollars from the CARES Act–it would have to cut 39 bus lines, reduce service on all the rail lines, and make numerous other cuts just to finish its current fiscal year–and the agency has no idea how it will continue operating next year unless the federal government provides another bailout.

All of these problems show that the region can’t afford to keep running the trains and will have to shut them down sooner or later. Given the few number of riders being carried at present, the best time to do so is now when it will cause the least disruption. 

September 11, 2020 9:58PM

The Smokey View from the Northwest

There are no clouds in the central Oregon sky today, but we are nonetheless living in dim times. With active wildfires on all sides of my home, we have some of the worst air pollution in the world.

It’s hard not to feel apocalyptic right now. In just four days, around 3 percent of western Oregon has burned, destroying hundreds of homes and other structures and forcing 80,000 people to evacuate. The good news is that it was not 500,000 people as reported in the media, but still, 80,000 is a lot, and many no longer have homes to return to.

I’ve been monitoring wildland fire policy for more than two decades, and this is the worst I have lived through. Still, this is far from a record year: though there have been lots of fires in the Northwest and northern California, fires are below average in southern California and much of the rest of the country.

One reason why we have seen bigger fires in recent years is that the Forest Service and other agencies have changed their firefighting tactics. For example, the Beachie Creek Fire near us was started by lightning on August 16. Located in a steep, inaccessible part of the Willamette National Forest, it smoldered on about 10 acres for ten days or so, then slowly increased over the following ten days to around 775 acres, then blew up, burning 132,000 acres in one ten‐​hour period–meaning it torched three acres per second–destroying hundreds of homes and killing at least two people.

A few decades ago, the Forest Service would have dropped smokejumpers by parachute on August 16 or 17 and had them directly attack the fire. But too many burnovers killing entire crews has rightly made the agency more protective of the lives of on‐​the‐​ground firefighters. Instead, it risks the lives of helicopter and air tanker pilots, five of whom have already died this year, having them dump water and fire retardant on the fires. During three weeks, they spent well over a million dollars doing this on the Beachie Creek Fire with dubious results.

Even when fires don’t escape, the tactics today emphasize indirect attack, meaning backfires, instead of direct attack. The result is that far more acres are burned, many of them lit by the firefighters themselves. Thus, based on acres burned, we can’t really draw conclusions about whether climate change or other factors beyond our control is resulting in more fires.

There are several major schools of thought about fire policy. One is that climate change has made fires worse and so we need to stop using fossil fuels and completely change our lifestyles to reverse this. I don’t buy this, as both the historic and prehistoric record (using things like soil profiles and tree ring analysis) indicate that an average of about 1 percent of the West has burned every year for thousands of years. After accounting for changes in firefighting tactics, I don’t see any indication that more acres are burning today because of climate change.

(On the other hand, and contrary to many climate‐​skeptic web sites, we can’t use the historic fire record to conclude that climate change isn’t happening either. The record shows that far more acres burned in the 1930s and 1940s than in the last few decades. What the record doesn’t say is that, in those years, the Forest Service opposed prescribed burning, which was widely practiced in the South, so it spitefully counted all acres of prescribed burning as wildfires.)

A second school of thought is that the 75 percent reduction in federal land timber sales between 1990 and 2000 is the problem, and if only we could increase timber cutting the forests would be healthier. The difficulty with this view is that timber cutting actually leaves forests more vulnerable to fire as it removes the big wood that isn’t very flammable and brings the fine wood and needles down from high in the air to the ground, where it is very flammable.

A third school of thought is that more than a century of fire suppression has allowed fuels to build up in the forests, making them more vulnerable to fire. This school calls for widespread fuel treatments, either physically removing the brush and small trees or burning them in place. In fact, wildland firefighting was never successful enough to have a significant impact on forest fuels. A Forest Service report several years ago concluded that the vast majority of western forests have not been ecologically changed by fire suppression.

The Forest Service currently spends $430 million a year on fuel treatments and Department of Interior and state agencies spend even more. Yet all the fuel treatments in the world aren’t going to save your house if firebrands from a lightning‐​caused fire seven miles away are blown by 50 mile‐​an‐​hour winds to your cedar‐​shake roof, which is what happened to many homes in Oregon last Monday.

My own view is that people in the West have to recognize that we live in a fire zone where roughly 1 percent of the natural landscape is going to burn each year no matter what we do. Instead of blaming these fires on public or private forest managers, we need to take responsibility to protect our own property and not rely on the Forest Service or other adjacent landowners to protect us.

That means the roofs and other parts of our our homes and other structures must be made of fireproof materials such as asphalt shingles, not cedar shakes. The walls can be wood, but our landscaping needs to follow defensible space or firewise principles so that, if it catches fire, it won’t generate enough heat to light structures on fire. The homes themselves should be at least 100 and preferably 150 feet apart so that, if one catches fire, the radiant heat from that fire doesn’t light up its neighbors.

Research by Forest Service fire scientist Jack Cohen has shown that such defensible space is both necessary and sufficient to protect structures from wildfire. It’s necessary because all the prescribed burning in the world won’t save your home if a burning ember from a lightning‐​caused fire 8 miles away lands on your lovely cedar‐​shake roof. It’s sufficient because it will protect your home even if neighboring forest landowners don’t do any prescribed burning or other fuel treatments at all.

This also means changing land‐​use policies adopted in California and other western states that promote dense housing. Urban‐​growth boundaries and zoning codes that mandate numerous homes on each acre even on urban fringes are asking for those homes to burn in wildfires. Cities need a buffer of low‐​density homes on one‐​acre lots to protect them from wildfires, and the lack of such a buffer is one reason why so many homes in Napa and other northern California counties have burned in the last few years.

If all homes and other structures in the wildland‐​urban interface met defensible‐​space standards, much of the $430 million that the Forest Service spends each year on hazardous fuels would not be needed, nor would much of the $2.5 billion or more that it spends on fire suppression.

Incidentally, the evacuation of 80,000 Oregonians should also alert transportation planners of the importance of having a good road network. Too many states and cities are trying to reduce road capacities. It’s called a “road diet” and it makes key evacuation routes unnecessarily congested. In 2018, a road diet in Paradise, California was blamed for the deaths of several people who were burned in their cars when they were stuck in traffic.

Before the Beachie Creek Fire blew up, the Forest Service posted a photo of two agency employees watching helicopters ineffectually dump water on the fire. The photo was titled “A Teachable Moment.” I hope the lesson we learned is that we need to take care of our own property and not depend on the government to protect us from natural wildfires that are beyond anyone’s control.

September 3, 2020 9:47AM

The Idea of New York Is Dying

A recent blog post by investor and stand‐​up comedian James Altucher arguing that New York is dead forever attracted the hostility of many New Yorkers. Fellow comedian Jerry Seinfeld wrote a New York Times op‐​ed calling Altucher a “whimpering putz.” Mayor De Blasio, naturally, agrees with Seinfeld.

The New York Post told Altucher to “drop dead,” noting that, if he really loved the city as he claims (he co‐​owns a comedy club there), he would stay and do his part to revive it. Guardian columnist Arwa Mahdawi suggests that New York is not only not dying, “the rich are moving out and the city is being reborn.”

With all due respect to these people, I think they missed the point of Altucher’s argument. New York as a city is going to survive. But New York as an idea, a place that builds wealth and fulfills dreams like nowhere else in America, will not. Not to put too many words in Altucher’s mouth, what is really dead is the idea that New York City or Manhattan densities are necessary to have a healthy economy and diverse culture.

Altucher pointed out that the pandemic has taught high‐​income people that they don’t need to deal with the congestion, high costs of living, homeless people, crime, and other stresses of the densest city in America. The things that made New York attractive are disappearing: lots of restaurants are permanently closed; lots of entertainment businesses promise to reopen next year, but no one knows if they will.

Mahdawi and others may be smugly happy to see rich people leave, which she hopes will make the city more affordable. But those rich people provide the start‐​up capital and the initial demand for all of the businesses that made New York City exciting.

The key to any thriving economy is exports, and what New York City exported was money. If the owners of that money decide they don’t have to be in New York City to export it, then the city loses the biggest driver of its economy.

The big danger is that the city will still be unaffordable after the wealthy people have left. Sure, rents will decline, but not enough to make it truly affordable. In 2017, median home prices in Manhattan were more than a million dollars, which was 9.4 times median family incomes. To be “affordable” (i.e., less than three times incomes) home prices would have to drop by more than two‐​thirds — much more if the exodus of high‐​income people pushes down median family incomes.

New York City’s construction costs have been the highest in the world. The people who paid those costs to build housing aren’t going to accept 25 percent or less of what they were expecting for the condos and apartments they have built. Instead, they’ll figure out other uses for that space and it won’t be available as housing.

A few weeks ago, I participated in a Cato Institute debate with market urbanist Scott Beyer over housing and land‐​use regulation, and Beyer’s main argument was that density has a value to businesses and personal interactions. It is quite likely that the COVID-19 virus has reduced that value to less than its cost.

Richard Florida got famous telling cities that what he called the “creative class,” the people who build wealth, were attracted to density. He still thinks they will return after the pandemic is over. But there is a very real chance that they won’t, and the longer the pandemic lasts the greater that chance will be.

After all, they will realize, even if someone finds a cure or vaccine for the virus, there will be something after that and something else after that. If they can conduct their businesses living and working in lower densities — and judging from the current state of the stock market, they can — then many will not feel the need to return.

The next time you fly into Newark, La Guardia, or JFK, there will still be skyscrapers across the Hudson or East river. If you want to watch a baseball game, the Yankees and the Mets will still be playing. But will New York still be the world’s wealthiest city, with more millionaires than any other city in the world? Quite possibly not. And the exodus of the wealthy is just a symptom of the city’s real problem, which is that the people who once made it great no longer believe it is necessary.

August 27, 2020 1:53PM

With Hurricane Laura Hammering the Gulf, Why Are U.S. Energy Markets So Calm?

An increasingly common refrain in Washington these days is that America's liberalized financial markets and trade policies have made the U.S. economy less resilient to pandemics, wars, or other major shocks, and that more regulation is needed to ensure that Americans have access to essential goods at these perilous times. Hurricane Laura's muted impact on U.S. energy markets, however, provides a clear lesson that "openness" and "resiliency" are not mutually exclusive, and in fact that freer markets can actually reduce U.S. vulnerability to economic shocks.

As Laura makes landfall, the Wall Street Journal warns that it could endanger a substantial portion of U.S. fuel and petrochemical production capacity:

Refineries, petrochemical facilities and ports along the Gulf Coast were closing as Hurricane Laura barreled toward the Texas-Louisiana border....

Hurricane Laura’s winds and storm surge threatened much of America’s fuel-making and chemicals infrastructure. More than 20% of U.S. refining capacity, capable of processing roughly four million barrels of oil a day, is located within the storm’s potential path, analytics firm IHS Markit said. As of Wednesday afternoon, companies had closed or said they planned to shut nearly three million barrels a day worth of capacity, the firm said....

Almost half of the nation’s capacity to produce ethylene, a building block in plastics manufacturing, could shut if the Gulf’s petrochemical hub were hit in the right spot, market intelligence firm S&P Global Platts said. As of Tuesday, chemical makers in southeast Texas and Louisiana—including Motiva, BASF SE, Ineos Ltd. and Total—had already cut 20%, according to IHS Markit.

Chemical maker Dow Inc. said Wednesday it was shutting several facilities and reducing staff to essential personnel in Beaumont, Deer Park and other Texas cities.

Despite all of these closures and the risk of significant damage to U.S. petroleum products manufacturing capacity and infrastructure, however, domestic prices for various petroleum products have barely budged. According to the aforementioned WSJ story and other recent articles, three factors contribute to this surprising resiliency:

Read the rest of this post »
August 26, 2020 2:04PM

A Project That’s No Longer Needed

A proposed new 2‐​mile transit line connecting LaGuardia Airport with the New York subway system will cost $2 billion, make traffic congestion worse, dump 87,000 metric tons of greenhouse gases into the atmosphere, and probably isn’t necessary due to the pandemic. The first three conclusions come from a draft environmental impact statement (DEIS) released last week by the Federal Aviation Administration, while the fourth is based on the huge changes in transportation habits that have already taken place as a result of the pandemic.

LaGuardia, the New York area’s smallest commercial airport. Photo by Patrick Handrigan.

According to the environmental impact statement, the new transit line, which would be an automated people mover, is needed primarily because of “increasing and unreliable travel times” to the airport as a result of traffic congestion. A survey of air travelers conducted by the Port Authority of New York & New Jersey (which runs the airport) found that slightly more than half of air travelers took taxis or ride‐​hailing services to the airport, another 36 percent took a car, and close to 6 percent took courtesy shuttles. Only 6.2 percent took mass transit.

A ridership study conducted for the DEIS projected that the people mover would increase use of mass transit to get to the airport to 10.1 percent. A few people taking taxis or other autos would let themselves be dropped off at the people mover station rather than the airport to avoid congestion, but most would still use highways to get to the airport. Of course, this doesn’t take into account the effects of the pandemic, which are likely to increase auto and reduce transit use to the airport.

How well does getting 3.9 percent of people out of their cars and onto transit relieve congestion? According to the traffic analysis conducted for the DEIS, it doesn’t. The analysis modeled traffic at a variety of intersections and highways around the airport and found that building the people mover would result in more intersections and roads whose traffic would be rated E (which is really crowded) or F (which is near‐​gridlock) than if the line isn’t built. So it fundamentally fails to meet its primary purpose, which is to relieve congestion.

Page 3–49 of the DEIS projects that constructing the people mover would produce 86,836 tons of carbon‐​dioxide‐​equivalent greenhouse gases. According to page 3–50, the Federal Aviation Administration estimates that the people mover would reduce driving enough to save a little over 6,000 tons of greenhouse gas emissions per year, meaning the construction cost would be recovered by the savings in a little over 14 years. However, this assumes travel patterns prevalent before the pandemic, which is unlikely. It also assumes that automobiles in the future will emit as much greenhouse gases as they do today, which is also unlikely given the growth of electric and other more‐​fuel‐​efficient cars.

We don’t yet know exactly how the pandemic is going to affect long‐​distance air travel. But it is practically certain to reduce short‐​distance air travel. People who were on the fence between flying and driving short distances are likely to decide that taking a personal vehicle is safer than using a crowded airport and crowded planes.

A disproportionate share of travel from LaGuardia is on smaller planes going shorter distances.

Of New York’s three main airports — LaGuardia, JFK, and Newark — LaGuardia is the one that mainly serves shorter flights. JFK is mainly for international flights and Newark does more transcontinental flights, while LaGuardia has no flights to cities west of Denver. While few people are likely to substitute driving for flying to Denver, many may substitute driving for flying from, say, New York to Burlington, Charlotte, Richmond, or other destinations less than 400 or so miles away. That means the pandemic will have greater long‐​term effects on LaGuardia than on New York’s other two airports, which is a major strike against building the people mover.

Comments on the DEIS must be submitted to the FAA by October 5. Given that the DEIS predicts that the project will fail to achieve its primary purpose of relieving congestion, the people mover made no sense even before the pandemic. But given the pandemic, this is a classic example of a project that should be shelved until we can get better information on how people’s travel habits will change in the long run.

August 26, 2020 10:03AM

Transit “Is Riddled with Inequities”

The transit industry has developed two systems: one for “choice” riders and one for “dependent” riders, “that is to say white and Black,” says urban planner Christof Spieler. A former member of the Harris County (Houston) Metro board of directors, Spieler points out one place where Metro offers riders a choice between bus‐​rapid transit and a local bus. The BRT is three times faster than the local bus, has plusher seats, and costs $3.25 a ride compared with $1.25 for the local bus.

Spieler makes many good points and I am glad that an urban planner is finally taking this issue seriously. Unfortunately, his inevitable solution — that we should spend more money on transit — is wrong.

Spieler never mentions the Los Angeles Bus Riders’ Union case, in which the NAACP represented minorities whose bus service had declined so that Los Angeles Metro could pay for new rail transit lines to middle‐​class neighborhoods, but maybe he was unfamiliar with that case. As documented here, LA Metro was ordered by the court to restore bus service for ten years, which it did. Bus ridership recovered, but as soon as the ten years was up, it cut bus service and went back to building rail transit.

The reason, it seems, is not that transit agencies are racist, but that most big‐​city transit planners design transit systems that they themselves would use, not systems needed by people who are too poor to have cars. Since bus‐​rapid transit and rail transit cost more than local buses, their fares should be higher, and such higher fares are no more inequitable than filet mignon costing more than hamburger.

Nor is this really about race; as with so many other things, it’s actually about class. Nationwide, only 9.8 percent of blacks take transit to work. Yes, that’s more than the 3.1 percent of non‐​Hispanic whites who take transit to work, but it still means that more than 90 percent of blacks don’t rely on transit.

The problem for transit agencies is that the fabled transit‐​dependent people have nearly disappeared. Since 1970, about when most public transit agencies were getting started, the share of households that have no cars has fallen by 50 percent — and most workers who don’t have cars don’t take transit to work anyway. In 2018, just 5.2 percent of people whose incomes were less than $25,000 took transit to work; most of them instead drove to work just like people in every other income class.

Having lost that market, transit agencies are desperate to justify their existence, so they aim for higher‐​income markets by building rail transit, bus‐​rapid transit, and various commuter transit systems. The result is the fastest‐​growing market for transit is people whose incomes are greater than $75,000 a year. Since it costs taxpayers more to carry these people than to carry low‐​income people in ordinary buses, this policy can’t be justified — especially since most of the taxes used to pay for transit are regressive.

Instead of lamenting the low‐​income people aren’t being catered to with fast transit vehicles and plush seats, Spieler should be pleased that the vast majority of low‐​income people have escaped their dependence on an inferior transportation system. On the basis of time, convenience, and cost, transit isn’t competitive with the automobile anywhere outside of Manhattan.

Instead of demanding more subsidies for transit aimed at making it “equitable” — an impossibility so long as most people have access to cars — Spieler should oppose regressive transit taxes and work with groups like On the Road Lending, a Dallas non‐​profit that is helping low‐​income people buy cars without having to pay exorbitant interest rates.

The great thing about highways is they are truly equitable. Yes, a Bentley may be a little more comfortable than a Nissan Versa, but both have equal access to the nation’s 4 million miles of highways, roads, and streets. That kind of access and equitability can’t be matched by transit in any way, so social justice warriors should give up on transit and focus on automobiles.

August 17, 2020 10:59AM

D.C. Circuit Strikes Blow to Leverage Policymaking

During the Obama administration, an unfortunate innovation in executive power was “leverage policymaking,” by which I mean that regulatory agencies would use individual transactions—such as enforcement or licensing actions—to achieve broad policy results.

Examples will help explain this concept.

In 2011, after promising to put one million electric cars on the road, the Obama administration requested $300 million in appropriations to spend on infrastructure for “zero emissions vehicles.” Congress demurred. Five years later, President Obama again sought such federal spending for the “21st Century Transportation Initiative”; once more, Congress refused. Then, in the summer of 2016, the Department of Justice, Environmental Protection Agency, and Volkswagen reached a judicial settlement to partially resolve the automaker’s Clean Air Act violations associated with the “defeat device” scandal. The consent decree included a stipulation for an EPA‐​approved plan to spend $1.2 billion over ten years “to support increased use of zero emission vehicle technology” Having failed to persuade Congress, the administration achieved the same result through regulatory enforcement!

Next, consider net neutrality, the ultra‐​divisive issue of whether internet service providers must treat data on a non‐​discriminatory basis. Congress considered multiple net neutrality bills during the Obama administration, but none passed. Nevertheless, the Federal Communications Commission—exercising its authority to review telecommunications mergers—made net neutrality a “voluntary” condition for corporate join‐​ups by Comcast/​NBC (2011) and Charter/​Time Warner (2016). Mind you, these companies serve millions of consumers. With such a broad reach, these merger conditions were indistinguishable from regulations or legislation.

At its most benign, “leverage policymaking” involved merely the funding of partisan nonprofits. For example, the Wall Street Journal reported that the Obama administration’s enforcement actions against big banks (in the wake of the financial crisis) typically included millions of dollars earmarked for left‐​of‐​center advocacy groups.

To be sure, prior presidents were not unknown to add stipulations onto these sorts of governmental transactions. During the Obama administration, however, these techniques exerted unprecedented influence.

Since then, the good news is that there’s been pushback from multiple institutions.

For example, in 2017, then‐​Attorney General Jeff Sessions issued a memo that prohibited the Justice Department from signing off on enforcement settlements that either fund third party groups or which otherwise effectuate broad policy. Sessions’ memo is still in effect and, as a practical matter, it precludes most of what I deem “leverage policymaking.”

Over at the FCC, the Commission’s current chair—Ajit Pai—is a long‐​time opponent of that agency’s use of its merger approval authority to wring conditions from telecommunications companies.

All of this gets me to the impetus for this post. Last week, the D.C. Circuit dealt another blow to Obama‐​era leverage policymaking. Above, I mentioned the FCC’s imposition of conditions on the 2016 Charter‐​Time Warner merger. Along with a handful of customers, my former colleagues at the Competitive Enterprise Institute challenged the conditions in court as being far beyond what the law allows.

On Friday, a split panel (that is, two out of three judges) mostly agreed with CEI. Really, this case was about “standing,” or the petitioners’ right to be in court. A normal lawsuit involves parties directly affected by the controversy. Here, by contrast, CEI and the customers were affected indirectly. Without getting into the legal weeds, the challengers sued over four conditions, and the court held that they had standing to bring suit against two of the conditions.

As I noted above, the FCC’s current chair is a prominent opponent of these sorts of merger conditions. Accordingly, the agency did not defend any of the Charter‐​Time Warner conditions on the merits. Because CEI was found to have standing (to challenge two of the four conditions), the good guys won by default (on those two conditions).

It’s a big ruling. If CEI v. FCC remains the law of the D.C. Circuit, then its lasting effect will be to open the courts to these sorts of challenges. I should note here that CEI and the customers were aided by the superb legal minds over at the Hamilton Lincoln Law Institute (full disclosure: I’ve worked with them, too).