The Stark Challenge of Transferring Governmental Responsibility in the Wake of Devastation

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January 31, 2017

Good Morning! In today’s Blog, we consider the abrupt decision to cease emergency federal relief efforts vital to Puerto Rico’s physical and fiscal recovery.

Post Storm Fiscal & Physical Misery. The Federal Emergency Management Agency (FEMA) yesterday announced it will “officially shut off” aid, including supplies of food and water in Puerto Rico this week. To date, the agency has supervised the distribution of more than 30 million gallons of drinking water and 60 million meals to its inhabitants. The Puerto Rico FEMA Director, Alejandro De La Campa, stated: “The reality is that we just need to look around. Supermarkets are open, and things are going back to normal.” In response, Mayor Carmen Maldonado of Morovis, a muncipio in the central mountains which was among Puerto Rico’s most devastated—and where a bridge collapse sequestered thousands of residents from access to FEMA assistance, including food, fuel, water, and medicine. The municipality’s elderly and ailing residents thus lost access to medical treatment. Thus, unsurprisingly, where power is only available to 20 percent of the U.S. citizens, FEMA’s announcement appears premature.

The FEMA announcement appeared to blindside Puerto’s Rico’s leaders and citizens—with the government having stated it was still in talks with FEMA on a timetable for assuming control of food and water distribution. For its part, the federal agency, which deemed its emergency operation the longest sustained distribution of food, fuel, and water in FEMA’s history, including more than $1.6 billion worth of food and more than $361 million worth of water, nevertheless declared all shipments of food and water will officially stop today; FEMA made clear it has stockpiled more than 46 million liters of water, 2 million Meals Ready to Eat, and 2 million snack packs on the ground for distribution if needed, noting: “The commercial supply chain for food and water is re-established, and private suppliers are sufficiently available that FEMA-provided commodities are no longer needed for emergency operations,” while Héctor M. Pesquera, the Secretary of Public Safety for Puerto Rico, who is also the commonwealth’s coordinating officer, said the transition period for local authorities to take over distribution should last at least two weeks: “The Government…is waiting for critical data provided by FEMA in order to determine when the responsibilities should be transferred from FEMA to the Government of Puerto Rico…” a statement seeming to make clear that the abrupt FEMA action was neither coordinated with Puerto Rico: “[W]e were not informed that supplies would stop arriving, nor did the Government of Puerto Rico authorize this action,” albeit noting that conditions “in most areas have improved and many economic indicators are showing that recovery is underway.”

FEMA spokesman William Booher said FEMA would “continue to support any documented needs and will provide supplies to volunteer agencies and other private nonprofit organizations…working with households in rural, outlying areas to address ongoing disaster-related needs as power and water is gradually restored.” The federal disaster relief agency still has about 5,000 personnel in Puerto Rico—and states it is prepared to restart food and water shipments should the need arise. Nevertheless, the abrupt departure, unmentioned in the State of the Union Address last night, came as San Juan Mayor Carmen Yulin Cruz, who was in attendance at the President’s address in Washington last night, reacted to the decision on Twitter, asking in Spanish: “Seriously, are they leaving?…This is the kind of indifference that must be stopped,” adding that some schools outside San Juan still have no water, power, or even supplies of milk; nearly half a million power utility customers remained without electricity as of last week, according to the power authority.

Last month, representatives of Puerto Rico’s Emergency Management Agency and FEMA had met with Mayors across the U.S. territory to assess urgent food and water needs, and yesterday FEMA reported nine regional staging areas which it had established to distribute food and water to Puerto Rico’s 78 muncipios will remain open—an important decision, as many outlying, rural, smaller muncipios still confront serious problems with access to food and water—especially in the more mountainous regions, where many remain without power, potable water, and, in some instances, even main roads. A key concern is for Puerto Rico’s elderly—those increasingly left behind by the exodus of the young and educated to the mainland: these citizens today have to face a drive of 30 to 40 minutes just to get to a store—a pre-Maria drive which used to take 5 to 10 minutes—but which has been much more challenging for seniors who must depend on others for transportation.

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Puerto Rico’s Migratory Challenges

January 30, 2017

Good Morning! In today’s Blog, we consider the migratory challenges to Puerto Rico’s fiscal recovery.

Post Storm Fiscal & Physical Misery. Puerto Rico’s legislature has passed and sent legislation to Gov. Ricardo Rosselló for his signature to authorize the U.S. territory to lend capital to the Puerto Rico Electric Power Authority (PREPA) and the Puerto Rico Aqueduct and Sewer Authority to handle imminent cash shortfalls (as of February last year, PREPA had $9 billion of debt and PRASA had $4.6 billion of debt). The intent is to avert any potential financing outage next month—an outage of further apprehension because of the efforts on the mainland to lure Puerto Ricans for employment opportunities on the mainland: the South Carolina Department of Corrections, seeking to fill 650 vacant positions, has erected billboard ads in Puerto Rico offering relocation assistance and salaries as much as $35,000 annually—plus overtime and benefits. Another company, Bayada Home Health Care, has been advertising available positions on Facebook: the company reports the response has been so strong that it had to take down its ads. Given an unemployment rate, according to the U.S. Labor Department, rising over 10 percent at the end of last calendar year in Puerto Rico compared to the mainland, where the unemployment rate was falling below 5 percent, the allure of emigrating is understandable.

According to the U.S. Census Bureau’s latest American Community Survey—even though outdated in the wake of post-Hurricane Maria migration, approximately 320,000 Puerto Ricans live in central Florida, with a significant percentage arriving recently: the post-Maria migration could mean an outflow of an additional 114,000 to 213,000 each year for the next two years, according to the to the Center for Puerto Rican Studies in New York City, whose researchers from the Climate Impact Lab estimated the impact of Hurricane Maria, using an econometric model of the costs of cyclones over the past 60 years and applied it to the pre-storm economic conditions in Puerto Rico: “Maria could lower Puerto Rican incomes by 21 percent over the next 15 years—a cumulative $180 billion in lost economic output,” concluding that “Maria could be as economically costly as the 1997 Asian financial crisis was to Indonesia and Thailand and more than twice as damaging as the 1994 Peso Crisis was to Mexico—but this time on American soil.”

The allure of emigrating is demonstrated by estimates from the Center for Puerto Rican Studies, which has estimated that in the period from 2017 to next year as many as 470,335 Puerto Ricans will leave for the mainland—the equivalent of approximately 14 percent. More critically, however, those that are living appear, disproportionately, to be those who can afford to: the Center estimates “Maria could lower Puerto Rico incomes by 21 percent over the next 15 years,” an amount the equivalent to $180 billion in foregone economic output—leading the Center to write: “Hurricane Maria has accelerated this propensity to a point where we can refer to the depopulation of Puerto Rico as one of the most significant hurdles for future economic recovery.” The Center’s data makes clear, moreover, that it is the young and employable who are emigrating: overwhelmingly, it is the seniors who are being left behind—raising, unsurprisingly, increasing questions with regard to pension and health care implications as revenues will fall.

Unequal and/or Inequitable Fiscal & Physical Responses

January 29, 2017

Good Morning! In today’s Blog, we consider the seemingly unending physical and fiscal challenges to Puerto Rico’s fiscal and   physical recovery.

Post Storm Fiscal & Physical Misery. Puerto Rico Gov. Ricardo Rosselló’s proposed privatization of the Puerto Rico Electric Power Authority faces opposition from local political leaders; thus, it may prove to be a tough sell to potential investors: the proposal, which the Governor has presented to privatize PREPA, the public utility burdened with some $8.2 billion of municipal bond debt—and the utility which the PROMESA Oversight Board has put into a Title III bankruptcy process, creating potential hurdles for any plan to alter its ownership, notwithstanding that Board members have expressed support for the idea. For his part, Puerto Rico House Minority Leader Rafael Hernández Montañez said he thought Governor Rosselló was seeking to distract people from his problems with his PREPA privatization proposal: “It’s a way of taking off the heat, on the re-energization of the houses and stores.” That is to write that the Gov. understands that neither the Puerto Rico House nor Senate will approve his proposal—so, Minority Leader Montañez asserts he is just posturing for public support, he said. Members of Gov. Rosselló’s own party in the legislature; moreover, appear to be opposed. Nevertheless, as part of the Title III PROMESA quasi-chapter 9 bankruptcy, parts of the utility appear certain candidates for sale–albeit, this would be a decision made by Judge Laura Taylor Swain—not Governor Rosselló.  

Moreover, there is apprehension that the Governor’s governance proposal would be unlikely to generate any support from investors, either: Tom Sanzillo, Director of Finance at the Institute for Energy Economics and Financial Analysis, noted: “We fail to see how any investor would put money into Puerto Rico with a regulatory system like that proposed by Gov. Rosselló: “He appoints and can fire board members at will. Under the current system, board members have staggered, fixed terms, and can only be fired for cause…This means the whim of every new Governor sets rules and contracts. This makes energy investing highly risky, contracts uncertain, and a politicized investment environment.” Indeed, Tomás Torres, Project Director at the Institute for Competitiveness and Sustainable Economy, believes the Puerto Rico Energy Commission’s oversight should be strengthened, and it should implement any transformation of PREPA.

Jose Rossi Coughlin, Chairman of the Institute for Competitiveness and Sustainable Economy has expressed apprehension about any interruption of key regulatory processes, much less permitting each new Governor to select all commission members when she or he assumes elected office—noting that is not only contrary to widely prevailing mainland U.S. practice, but also likely legally incompatible with Title V of PROMESA. For his part, Mr. Torres notes that with the Governor’s submission, last week, of a bill to eliminate the Energy Commission and substitute in its place a Public Service Commission (which would merge Telecom, Transportation & Public Services, and the Energy Commission), the “The three commissions/boards that are to be merged in this new body add to 15 commissioners, but the new boards will only be of three members…“The recently proposed Energy Commission reorganization and consolidation with other public service regulation would be a huge step backward.”

Moody’s Investor Service was not quite as pessimistic, writing: “The [proposed] privatization itself is positive, because it is another source of capital to help solve PREPA’s fiscal problems; however, there are still challenges; including negotiating a price in an environment of declining Puerto Rico population, investing in rebuilding aging infrastructure, and how PREPA’s pension liability will be handled. The 18-month timeline appears quite aggressive.” For its part, the PREPA Bondholders Group said they would support a “private operator” to “immediately” take over operations, subject to the Puerto Rico Energy Commission oversight. Indeed, in statement sent out by Gov. Rosselló’s office, some representatives of Puerto Rico’s business community indicated their support for the proposal, with Nelson Ramírez of the United Center of Retailers, noting: “The announced changes will allow Puerto Rico to become a competitive jurisdiction, ending a monopoly that discourages investment and the creation of jobs,” albeit, as Puerto Rico Senate Minority Leader Eduardo Bhatia Gautier said, the proposal was a step in the right direction but that “the devil is in the details.”  Leader Bhatia-Gautier, a co-founder and former editor of the Stanford Journal of Law and Policy, with previous service as a law clerk at the U.S. Court of Appeals for the First Circuit in Boston, as well as Chief of Staff for the resident Commissioner of Puerto Rico in the U.S. Congress, is the 15th president of the Senate of Puerto Rico, where he has focused on the U.S. Territory’s fiscal system and authored a comprehensive energy reform law. Now, he asserts that Puerto Rico’s electrical system should be decentralized into 20 to 25 micro grids, and believes that, with federal assistance, Puerto Rico should try for widespread installation of solar panels on rooftops. Nevertheless, as he notes: even though the Governor and the Puerto Rico legislature will privatize PREPA, the reality is that Judge Swain will have to be involved.

Power to the Muncipio? Jayuya Mayor Jorge L. González Otero, a muncipio founded in 1911, at a time it featured a population of around 9,000, was certain that power would be restored to close to 10,000 residents of his northwest coast municipality of around 88,000, on Saturday. Some 35% of residents in Arecibo do not currently have electricity, he reported, albeit, he said he had received word from PREPA that one of the region’s substations, Charco Hondo, would receive a generator from the U.S. Army Corps of Engineers to power a temporary micro grid while repairs on the substation continue. The muncipio, which, at its founding, was separated from the larger cities of the coasts with little to no communication: it was the site of the Jayuya uprising in 1950, in which the Nationalists commenced a revolt against the U.S. Government, when a social worker, Doris Torresola, and her cousins led the group into the town square and gave a speech, declaring Puerto Rico an independent republic. Subsequently, the police station was attacked, telephone lines cut, and the post office burned to the ground. The Nationalists held the town for three days, until it was bombed by U.S. planes, which were supporting a ground attack by the Puerto Rican National Guard. Even though an extensive part of the town was destroyed, however, news of the bombing was not reported outside of Puerto Rico. Today, unsurprisingly, the Mayor notes: “Four months is way too much time for people in Puerto Rico to not have energy. All of us, the representatives, the mayors, the people, the senators, have to raise our voices to get things done.”

In fact, last month, he had reached an agreement with PREPA to temporarily restore power by means of the micro grid: last Saturday, the Mayor planned to tour the substation with PREPA’s interim director, Justo González, as the generator was being installed. However, in another example of the dysfunction which has plagued Puerto Rico’s recovery, there was no sign of the generator, nor even PREPA’s interim director at the Charco Hondo substation—meaning thousands of Arecibo’s residents remained in darkness, just like nearly one-third of all Puerto Ricans: more than one million U.S. citizens—darkness wherein there is no remote contemplation of when power might be restored: a spokesperson for PREPA told BuzzFeed News that the U.S. Army Corps of Engineers was overseeing the project and providing the generator. A Corps spokesperson indicated that after a second inspection of the site, the Corps had determined there was too much damage to the nearby power lines to allow the generator to be safely switched on as planned; rather, he said contractors will “begin installing” the generator over the weekend, but that it will not become operational, albeit the Corps is unable to provide “definitive time” when it will.

Renogiaciones. The Fiscal Agency and Financial Advisory Authority reports that Puerto Rico’s decision to renegotiate its public debt will cost at least $ 800 million over five years, with FAFAA, relying on an expensive cadre of attorneys, consultants, and financial advisors who have been recruited as part of an effort to cobble together a quasi-plan of debt adjustment which would reduce more than $ 70 billion owed to  Puerto Rico’s bondholders—now the cadre has to translate its fiscal algorithms before Judge Swain’s courtroom. The document, however, fails to specify whether the plan incorporates the budget for either FAFAA or the PROMESA Oversight Board, much less the vast array of advisors and lawyers who have participated in voluntary negotiations, as in the case of the Government Development Bank (GDB)—not exactly as propitious beginning as, for the first time, there is to be an assessment of the actual costs of reducing or cancelling bondholders’ debts, albeit, already, some early estimates are that such costs could exceed $1 billion—the portion of which would redound to U.S. citizens of Puerto Rico, where, in comparison to the different mainland states, Puerto Rico falls far below the poorest mainland state, with 45% of its population living below the poverty line, would be most limited. Nevertheless, despite the seemingly endless process, and despite the PROMESA oversight, or quasi-chapter 9 plan of debt adjustment, there has been as yet, no agreement with any key creditor. Rather, in what many in Puerto Rico would deem noticias falsas, President Trump, last November, reported Puerto Rico was “doing well” and “it’s healing, and it’s getting better, and we’re getting them power, and all of the things that they have to have.” That was in sharp contrast with reality—or, as District Representative José “Memo” González Mercado, of Arecibo put it: “The reality is that we are U.S. citizens, but Donald Trump treats us as second-class citizens.”

Human & Fiscal Storms

January 25, 2017

Good Morning! In today’s Blog, we consider the seemingly unending physical and fiscal challenges to Puerto Rico’s fiscal and   physical recovery.

We all were sea-swallow’d though some cast again,
And by that destiny to perform an act 

Whereof what’s past is prologue, what to come
In yours and my discharge. 

Fiscal & Physical Storms.  In the second Act of The Tempest, William Shakespeare warned of the danger of storms. Now, in the wake of a storm and disparate federal responses, Puerto Rico Gov. Ricardo Rosselló has submitted a revised fiscal plan which estimates the U.S. territory’s economy will shrink by 11%–and its population will decline by nearly 8% next year. As submitted, the Governor’s revised fiscal proposal does not set aside any funds to reimburse creditors in the next five years as Puerto Rico seeks to restructure a portion of its $73 billion public debt; the original plan had set aside $800 million a year for creditors, a fraction of the roughly $35 billion due in interest and payments over the next decade. The revised five-year plan also assumes Puerto Rico will receive at least $35 billion in emergency federal funds for post-hurricane recovery and another $22 billion from private insurance companies—a generous assumption given that the U.S. Treasury Department and FEMA this month advised Puerto Rico officials they are temporarily withholding billions of dollars approved by Congress last year for post-hurricane recovery, because they believe Puerto Rico has sufficient fiscal resources.

The Governor’s revised plan does not propose either layoffs or new taxes; rather it proposes labor and tax reforms, as well as the privatization of PREPA in an effort to help generate (not a pun) revenue and promote economic development as the U.S. territory endures an 11-year recession. The Governor noted that nearly half of Puerto Rico’s  3.3 million inhabitants were in poverty prior to the hurricane—and Puerto Rico still confronts an 11 percent unemployment rate. The disparate circumstances have been aggravated in the wake of nearly half a million Puerto Ricans fleeing to the mainland U.S. over the past decade in search of jobs and opportunities—leaving behind older and less educated Puerto Ricans—an exodus which the Governor warned: “We must work as a government to prevent this from happening, and that’s what we’re focused on.” Gov. Rossello said he would hold back on his proposed $350 million cut in aid to Puerto Rico’s 78 municipalities or muncipios as they continue to struggle to recover from Maria; instead, he said they will receive more money than usual in future years, adding he will also propose tax cuts, including an 11.5 percent sales and use tax to 7 percent for prepared food. His comments came as more than 30 percent of power customers still remain in the dark more than four months after Hurricane Maria.

The Promise of PROMESA? PROMESA Board Executive Director Natalie Jaresko said the “Oversight Board views implementing structural reforms and investing in critical infrastructure as key to restoring economic growth and increasing confidence of residents and businesses: Our focus in certifying the revised plans will be to ensure they reflect Puerto Rico’s post-hurricane realities,” with her statement coming as the PROMESA Board has set a deadline of February 23rd to approve the plan.

Calming the Fiscal Waters

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January 24, 2017

Good Morning! In today’s Blog, we consider the physical, governance, and fiscal challenges confronted—and overcome, by the City of Flint, Michigan.

Restoring Fiscal Municipal Authority. For the first time in seven years, Flint, Michigan local officials are in control of the city’s daily finances and government decisions after, on Monday, Michigan Treasurer Nick Khouri signed off on a recommendation from Flint’s Receivership Transition Advisory Board (RTAB), the state-appointed board overseeing Flint’s fiscal recovery-to grant Mayor Karen Weaver and the Council greater authority in daily decision-making. Michigan Governor Rick Snyder, seven years ago, preempted local governance and fiscal authority after concurring with a state review panel that there was a “local government financial emergency” in Flint, and that an emergency financial manager should be appointed to oversee the city’s affairs. The Governor ultimately appointed four emergency managers to run the city from 2011 until 2015–two of whom were subsequently charged with criminal wrongdoing related to their roles in the Flint water crisis. In declaring the financial emergency in Flint, state officials said city leaders had failed to fix a structural deficit and criticized city officials for not moving with the degree of urgency required considering the seriousness of the city’s financial problems.

Notwithstanding, the State of Michigan retains authority with regard to certain fiscal and budgetary issues, including approval of the municipality’s budget, requests to issue debt, and collective bargaining agreements. Treasurer Khouri noted:  “Today is an important day for our shared goal of moving Flint forward…Thanks to the progress city leaders have made, this is an appropriate time for the Mayor and City Council to assume greater responsibility for day-to-day operations and finances.” Mayor Weaver noted: “This is an exciting development for the city of Flint…We have been waiting for this for years,” adding the state action will bring the city a step closer to its ultimate goal of home rule through rescinding Michigan’s Emergency Order 20, which mandated that resolutions approved by both Mayor Weaver and the City Council receive the state board’s approval before going into effect.

Mayor Weaver, in the wake of the long saga in which a state-imposed emergency manager had led to a massive physical and fiscal crisis, said she has hopes for the city and state to “officially divorce” by the end of this year, noting that with the appointment of CFO Hughey Newsome last  year, the newly elected City Council, and approval of a 30-year contract with the Great Lakes Water Authority; Flint is both more fiscally and physically solvent: the new water contract is projected to save Flint as much as $9 million by providing a more favorable rate—an important consideration  with GLWA and addresses $7 million in debt service payments the city is currently obligated to pay on bonds issued to finance the Karegnondi Water Authority pipeline under construction.

The city of just over 100,000, with a majority minority population where just under 30 percent of the families have a female head of household, and where 33.9 percent of all households were made up of individuals and just under 10 percent had someone living alone who was 65 years of age or older, finances its budget via a 1 percent income tax on residents and 0.5 percent on non-residents: it has a strong Mayor-council form of government. It has operated under at least four charters, beginning in 1855: its current charter provides for a strong Mayor form of government—albeit one which has instituted the appointment of an Ombudsperson; the City Council is composed of members elected from Flint’s nine wards.

In the wake of ending its water contract with Detroit via a state-appointed emergency manager, its travails—physical and fiscal were triggered: the state appointed  emergency manager shifted to Flint River water as the city awaited completion of a new KWA pipeline—but that emergency manager failed to ensure safe drinking water as part of the switch—a failure which, as we have noted, led to the contamination crisis which poisoned not just the city’s drinking water, but also its fiscal stability—leading to nearly eight years of a state takeover in the wake of Gov. Rick Snyder’s 2011 declaration of a financial emergency within the city.

Even though Gov. Snyder declared an end to Flint’s financial emergency on April 29, 2015, the RTAB, which is appointed by the Governor, had continued to review financial decisions in the city. Discussions with regard to planning the RTAB’s departure from Flint began last August as part of an annual report from the Michigan Treasury Department mandated for Michigan municipalities operating under financial receivership. Thus, Treasurer Khouri’s signature was the final stamp of approval needed to thrust the RTAB unanimous suggestion of January 11th into immediate action, repealing an order mandating that the State of Michigan review all decisions made by the Mayor and Council—and ending a long and traumatic state takeover which caused immense human physical and municipal devastation. It marked the final step from the city’s emergence two years ago in April from the control of a state-imposed emergency manager to home rule order under the guidance of a the state-imposed Board—a board devised with the aim of ensuring a smooth transition by maintaining the measures prescribed upon the emergency manager’s exit. Here, as we have previously noted, the Emergency Manager was appointed by the Governor under Public Act 436 to preempt local elected leadership and to bring long-term financial stability back to the city by addressing any and all issues which had threatened the Flint’s fiscal solvency—but which, instead, first led to greater fiscal stress, and, more critically, to physical harm and danger to Flint’s citizens, thereby jeopardizing the very fiscal help which the state purported to want. Four different individuals served as emergency manager from December 2011 to April 2015: in order, they were Michael K. Brown, Edward J. Kurtz, Darnell Earley, and Gerald Ambrose.

The action repealed Emergency Manager Order No. 20, an order imposed by former Flint Emergency Manager Jerry Ambrose in his final days with the city—an order which mandated resolutions approved by both the Mayor and City Council in order to receive the Advisory Board’s approval, prior to going into effect. as Mayor Weaver put it, the step was a “welcome end to an arranged marriage,” adding: “We are so thankful‒and I’m speaking on behalf of the proud, great city of Flint: the RTAB has been in place for several years now, and one of the things it did represent is that the city was in turmoil and financial distress. And I know over the past two years we have been fiscally responsible… I think it’s absolutely time, and time for the locally elected officials to run the city, and we’ve been anxiously ready to do so….this feels like a welcome way to end an arranged marriage.”

Mayor Weaver noted that the appointment of Hughey Newsome as Flint’s interim chief financial officer, combined with the city’s new Council members and approval of a 30-year contract with the Great Lakes Water Authority, has helped to move Flint in a fiscally and financially solvent direction.

Restructuring, Refinancing, & Repowering in the Wake of a Quasi Municipal Bankruptcy

January 23, 2017

Good Morning! In today’s Blog, we consider the fiscal challenges to the U.S. Territory of Puerto Rico in restructuring and rebuilding its public infrastructure.

Puerto Rico Governor Ricardo Rosselló yesterday announced he will privatize the state Electric Power Authority (AEE), stating: “ESA will cease to exist as it currently operates, and during the next few days the process will start where ESA assets will be sold to companies that will transform the generation system into a modern, efficient and less expensive one for the people.” The Governor’s announcement came at a time when almost half a million users of the system are still without service some 124 days after Hurricane Maria’s stormy passage. 

The privatization of the PREPA has been a priority objective of the Government and the PROMESA Fiscal Supervision Board—indeed, last August, before hurricanes Irma and Maria struck Puerto Rico, Chairman José Carrión, had assured that the privatization would be carried out as soon as possible. Indeed,the Board would have to approve any privatization—and, it seems likely that U.S. District Court Judge Laura Taylor Swain might well have some oversight as the Governor develops the first phase—drafting legislation, and then defining the public procurement process. The Governor, in what appears to be an effort to “kill two birds with one stone,” has also described the sale as one where proceeds would be used to help meet public pension obligations.

In his announcement, Gov. Rosselló explained that the process will take 18 months and will be carried out in three phases: “In the first one, the legal framework will be defined through legislation, the market will be assessed, and the call will be opened for companies interested in participating.” He said that in the second step, bids be received and evaluated; and in the third, the terms of the awarding and hiring of the selected company will be negotiated. In making his announcement, the Governor assured that Puerto Rico’s electrical system is 28 years older than the average for the industry in the U.S., noting: “PREPA has become a heavy burden for our people, who today are hostage to their poor service and high cost, what we know today as PREPA does not work and cannot continue to operate like this.” 

Unsurprisingly, his pronouncement was criticized by different authorities: Independence Party Senator Juan Dalmau described his announcement as a “manipulation” to justify the lack of energy on the island since the hurricane. Mayor Carmen Maldonado of Morovis, a city of some 27,000 founded in 1817, and the island’s only municipality which was not devastated by the 1853 cholera epidemic—a devastation remembered both by your scribe who had cholera in Colombia, but also an event which led to what, today, has become a common expression: “La isla menos Morovis,” [all the island but Morovis]—a phrase believed by most Puerto Ricans to have a negative connotation against moroveños. Morovis Mayor Carmen Maldonado responded that the Governor’s announcement does not offer solutions for those who still do not have service in their homes and businesses, stating: “People are still waiting for a service restoration plan.” 

For her part, San Juan Mayor Carmen Yulin Cruz, known for her criticisms of the Trump administration’s response to Puerto Rico after Hurricane Maria, spoke out against the proposal, noting: on her official Twitter account, that PREPA’s privatization would put the Commonwealth’s economic development into “private hands,” and that the power authority will begin to “serve other interests,” describing it as a “clear” strategy to “create chaos at a time when citizens are in need in order to sell something as positive that will be negative in the long run.” The malingering situation, however, is, according to the most recent report from the U.S. Department of Energy, that some 36% of PREPA customers are still without power four months after Maria caused widespread devastation on the island.

Fiscal Economic Dislocation?

January 22, 2017

Good Morning! In today’s Blog, we consider the ongoing federal and fiscal challenges to fiscal recovery for the U.S. territory of Puerto Rico.

‘Twas in another lifetime, one of toil and blood
When blackness was a virtue the road was full of mud
I came in from the wilderness, a creature void of form
Come in, she said
I’ll give ya shelter from the storm ∞ Bob Dylan

Modern Day Okies. Since Hurricane Maria struck Puerto Rico, nearly 300,000 Puerto Ricans have left their homes and fled to Florida. These Americans have fled to other states too, with New York a key new home. The departures raise a host of fiscal challenges, including: for how much longer will FEMA assistance be available to these U.S. citizens? Are these Americans permanent departees from Puerto Rico? In addition, if so, are they predominantly younger, and higher income?

Under the Federal Emergency Management Agency (FEMA) program, FEMA has provided hotel or lodging assistance to evacuees; however, the duration of that assistance, which has just been extended until March under the FEMA Transitional Shelter Assistance program (not as form of temporary shelter while rebuilding her damaged home in Puerto Rico, remains uncertain: is it a way to relocate and start a new life on the mainland? In the beginning, most of those leaving were elderly, disabled, or in need of critical medical care. But that appears to have changed: today young Puerto Ricans appear to be the primary departees, threatening to compound what we have previously noted to be an historic, migratory wave in the wake of the U.S. territory’s physical and fiscal crisis: mayhap as many as 25 percent of the population will have departed by the end of the decade.

Ironically, especially given President Trump’s attitude towards Puerto Rico, including the disparate response to Puerto Rico compared to Houston and Florida, the disproportionately younger Puerto Ricans coming to the mainland have been sought after—often recruited. Last November, the agency offered to airlift victims of Hurricane Maria to the U.S. mainland to reach temporary housing–a first of its kind for the agency: under the program, the Transitional Shelter Assistance (TSA) program, displaced residents and families who are still living in shelters on Puerto Rico can opt to relocate to housing in Florida and New York. Mike Byrne, a federal coordinating officer for FEMA, said the program is the first time the agency has attempted what it calls an “air bridge,” or a relief operation requiring the transportation of individuals from a disaster area. In most disasters, FEMA pays displaced residents to stay in hotels under the TSA program. In Puerto Rico, the hotels are filled to capacity, so FEMA is turning to the mainland and working with states to find accommodations.

At the same time, because of anticipated labor shortages because of the White House anti-immigration policies, many domestic employers are eager to hire bilingual workers for whom the minimum wage of a U.S. state represents a significant boost in income compared to grim options on Puerto Rico. Likewise, both the federal and Puerto Rican governments have facilitated departures: that is, in the ongoing absence of an equitable or comprehensive recovery plan for Puerto Rico, migration has become a substitute for federal disaster relief and recovery: for the first time ever, FEMA created an “air bridge” and chartered cruise ships to evacuate residents. In the beginning, new arrivals were forced to seek shelter with family members or in homeless shelters; subsequently, such families are being offered hotel stays for up to three months. (Traditionally, FEMA offers temporary shelter to homeowners who have been adversely affected by a disaster while they carry out the arduous task of rebuilding; however, in the case of Hurricane Maria, the process of recovery has been severely undercut by the lack of electricity and running water, and the inability of the federal government to supply even the most basic materials.

The increasing challenge is that, as we have noted before, those Puerto Ricans fleeing destroyed homes, devastated public infrastructure, and a shattered economy, are, disproportionately, those who can afford to leave—and those whose jobs and livelihoods have been washed away. After all, some nearly four months after the hurricanes, many restaurants, stores and offices remain closed: how can one be competitive with operating on generators, operating with reduced personnel serving only FEMA workers, and with massive layoffs? Just last week, Walmart, Puerto Rico’s largest private employer, announced it was closing three of its Sam’s Club stores; pharmaceutical companies, which, today, account for nearly 50% of Puerto Rico’s manufacturing jobs, are rethinking their location in the wake of the implementation of the new federal tax reform law—a law which treats Puerto Rico as a foreign jurisdiction. The new tax law imposes a 12.5% tax on profits derived from intellectual property held in foreign jurisdictions. (The U.S. territory of Puerto Rico is a domestic jurisdiction in U.S. law—except for federal tax purposes.) The pre-existing tax law exempted Puerto Rico residents from paying federal income taxes, a provision which sought to attract investment in manufacturing, something which, prior to the hurricane, accounted for 47% of Puerto Rico’s gross domestic product—more than $48 billion, with the bulk of the incentives encouraging pharmaceuticals and medical devices that generate revenue from patented drugs and technologies.

However, the new federal tax changes were enacted to render offshore operations less profitable, thereby rewarding corporations which opt to relocate back to the U.S. mainland—because, the IRS considers Puerto Rico to be foreign, and because many of the most significant manufacturers on the island are foreign-owned.

Perhaps unsurprisingly, the economic dislocation in Puerto Rico has led to mainland employers recognizing a diamond in the rough—meaning that they have been recruiting Puerto Rican workers to places such as Florida, North Carolina, Georgia, and Kansas: in Texas and Florida, developers hope that Puerto Rican labor will alleviate an expected shortage of construction workers as their own hurricane recovery gets underway. The efforts, piggy-backing on a trend that has accelerated over the last decade, has been focused on teachers, doctors, police officers, nurses, and engineers—exactly the positions most critical for Puerto Rico’s physical and fiscal recovery. But how to compete against Houston—a city where approximately one-third of schoolchildren are native Spanish speakers—and a city which received disproportionately greater federal hurricane assistance? The city’s school districts have already conducting multiple recruitment trips to Puerto Rico. Similarly, the police departments of Dallas, Charlotte, Baltimore, and even the nation’s capitol, Washington, D.C., have all turned to Puerto Rico as they have sought to diversify their departments with more Latino officers. In these instances, the recruiters lure workers with what appear to be high salaries when compared with the depressed incomes of a U.S. territory in physical and fiscal crisis.

Some have noted, moreover, that with the U.S. federal government closed, in no small part due to opposition to extending the DACA or Deferred Action for Childhood Arrivals program, it may be coincidental that the influx of Puerto Ricans to the mainland who were displaced by the storm coincides with the expiration of and, most recently, the end of temporary protected status for Central American and Caribbean migrants who had also fled natural disasters. That is, the combination furloughs, wage cuts, and higher prices for Puerto Rico’s working poor, combined with the massive damage to the island’s public infrastructure and disparate federal response, appears to have contributed to fueling a mass exodus—an exodus, however, of the young and qualified.