Legal
American Electric Power v. Connecticut, argued earlier this week, spurs debate over the role of the courts in addressing climate change.
The Court heard oral argument in American Electric Power v. Connecticut on Tuesday. The case raises questions about the role of the federal courts in addressing climate change–a subject that has interested academics as well. Professors David Markell and J.B. Ruhl address the issue empirically by reviewing every climate change case brought through December 31, 2009, to determine whether courts are serving as “battlefields” in the “climate fights.”
A forthcoming article in the Yale Law Journal by Benjamin Ewing and Douglas Kysar argues that climate change litigation illustrates how tort law can prod political actors to address social problems. And John Wood’s article in the Environmental Law Reporter runs through the arguments regarding displacement of public nuisance claims in the context of climate change. All three articles contend that climate change litigation raises important questions about the relationship between the judiciary and the political branches of government. We’ll soon learn the Court’s views on these questions as well.
See: SCOTUSblog | American Electric Power Co., Inc. v. Connecticut.
See: Markell, D., and J. B. Ruhl. “An Empirical Survey of Climate Change Litigation in the United States.” Envtl. L. Rep. News & Analysis 40 (2010): 10–644. Print.
See: Ewing, B., and D. A Kysar. “Climate Change, Courts, and the Common Law.” Print.
See: Wood, John. "Easier Said than Done: Displacing Public Nuisance when States Sue for Climate Change". (February 17, 2011). Environmental Law Reporter, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1763359
Let's consider for a moment the targets the federal government chooses to make an example of.
So far, no bankers have been charged, despite the unmitigated greed that nearly brought the world economy down. No coal or oil execs have been charged, despite fouling the entire atmosphere and putting civilization as we know it at risk.
But engage in creative protest that mildly disrupts the efficient sell-off of our landscape to oil and gas barons? As Tim DeChristopher found out on Thursday, that'll get you not just a week in court, but potentially a long stretch in the pen...
Bill McKibben
Bill McKibben is the author of a dozen books on the environment, a scholar in residence at Middlebury College, and founder of 350.org. He also serves on Grist’s board of directors.
See: Tim DeChristopher | Bidder70.
See: Gas Drillers Plead Guilty to Felony Dumping Violations
See: Student Disrupts Government Auction of 150,000 Acres Of Wilderness For Oil & Gas Drilling.
See: The Need for Mass Mobilizations
See also: Video - 350.org: Because the world needs to know.
See: Amy Goodman and Juan Gonzalez. "Environmentalist Tim DeChristopher Found Guilty of Sabotaging Oil and Gas Auction; Faces up to 10 Years in Jail." Democracy Now!. March 4, 2011.
Photo by Alex Wong | Getty Images. See source here.
Amicus Curiae
Faith Based organizations offer information relevant to the Supreme Court deliberation on the matter of Connecticut vs. American Electric Power. 2011-03-18.
Amici curiae are fourteen faith-based organizations that are active participants in the ongoing attempt to respond to global climate change and have a strong interest in developing limits on greenhouse gases, which are the primary cause of global climate change.
Amici represent a broad spectrum of Catholic, Protestant, and Jewish communities. Although they differ on many matters of faith and policy, they are united in their concern about threats to the environment. They believe that human beings are stewards of God’s Creation and that humans have a moral obligation to prevent and mitigate harm to the planet, to our fellow humans, and to all of God’s creatures.
An amicus curiae (also spelled amicus curiæ; plural amici curiae) is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it. The information provided may be a legal opinion in the form of a brief (which is called an amicus brief when offered by an amicus curiae), a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision on whether to admit the information lies at the discretion of the court. The phrase amicus curiae is legal Latin and literally means "friend of the court".
See: Gas Drilling Discussion (Suggested Agenda for) : Biblical and Theological Considerations
This video shows Texas Black Angus cattle drinking from drilling sludge pits at two different drilling sites in Denton County. I have witnessed cattle drinking from sludge pits regularly over the past few years.
Unlike most other states, Texas law does not require that sludge pits be lined or fenced, but it does require the pits be "cleaned up" within 120 days after completion of the well.
There are many sludge pits in Texas that never get cleaned up. These are a threat to wildlife, livestock, soil and our drinking water.
See Bluedaze by Sharon Wilson (TXSharon)
A Project in Cooperation with the Thoreau Society.
The Thoreau Reader - Annotated works of Henry David Thoreau
While Walden can be applied to almost anyone's life, "Civil Disobedience" is like a venerated architectural landmark: it is preserved and admired, and sometimes visited, but for most of us there are not many occasions when it can actually be used.
Still, although seldom mentioned without references to Gandhi or King, "Civil Disobedience" has more history than many suspect.
In the 1940's it was read by the Danish resistance, in the 1950's it was cherished by those who opposed McCarthyism, in the 1960's it was influential in the struggle against South African apartheid, and in the 1970's it was discovered by a new generation of anti-war activists. The lesson learned from all this experience is that Thoreau's ideas really do work, just as he imagined they would.
See: The Higher Law: Thoreau on Civil Disobedience and Reform by Henry David Thoreau, edited by Wendell Glick, with an introduction by Howard Zinn.
As a result of his writings and personal witness, we are the heirs of a legacy of creative protest. - Martin Luther King, Jr, Autobiography
This work is included in Fracking Resource Guide as an homage to the many individual voices and blogs I will continue to read that help the world stay informed about the dangers of hydrofracking.
I will join you at the barricades. Drilling isn't safe.
See: Essay by Peter Suber. "Civil Disobedience".
...The Nuremberg principles require disobedience to national laws or orders which violate international law, an overriding duty even in (perhaps especially in) a democracy.
Climate Ground Zero started out as a campaign against oil and tar sands in Montana and Canada. Upon requests by local activists working to end mountaintop removal coal mining, Climate Ground Zero moved to Rock Creek, West Virginia.
Coal River Mountain was the last mountain to remain untouched by mountaintop removal mining in the Coal River Valley. Climate Ground Zero’s direct action campaign took off when Coal River Mountain was clear-cut in preparation for mountaintop removal in February of 2009. Since then over 150 people have been arrested in various actions on Coal River Mountain and other mountaintop removal sites in West Virginia.
Climate Ground Zero is not an environmental organization; it is an ongoing campaign of non-violent civil resistance in southern West Virginia to end mountaintop removal. Here at Climate Ground Zero we believe that the irrevocable destruction of the mountains of Appalachia and its accompanying toll on the air, water, and lives of Appalachians necessitates continued and direct action.
In West Virginia, an overwhelming majority of residents are opposed to mountaintop removal mining. However, political interests are highly invested in the coal industry and the EPA and the West Virginia DEP refuse to take real action to protect the environment and the people of West Virginia.
In order to stop mountaintop removal, we need to awaken the country to the devastation that mountaintop removal inflicts on one of the most biodiverse regions in the world, Appalachia, and its people. Since Climate Ground Zero came to West Virginia in 2009, hundreds of activists have come to the coalfields and stood with the residents of West Virginia to demand an end to the destruction.
Climate Ground Zero is a project of the American Forest Alliance and works in cohesion with Mountain Justice, a regional network of organizations in Kentucky, Tennessee, Virginia, and West Virginia, that seek the abolition of mountaintop removal in Appalachia and throughout the country.
July 25, 2009
From Publishers Weekly
Through vivid first-person reporting and a thorough culling of court transcripts, newspaper clippings and corporate reports, Vanity Fair contributing editor Shnayerson (The Killers Within) has crafted an incriminating indictment of the Appalachian King Coal industry in West Virginia, and of the man he defines as its rapacious kingpin, Massey Energy's CEO, Don Blankenship.
The author's sympathies lie clearly with opponents of mountaintop mining, most prominently young attorney Joe Lovett and citizen activist Judy Bonds. Both have fought against a form of mining that shears off the tops of hills and dumps rubble into valleys and streams—a process abetted by the collusion of the state's often-lackadaisical Department of Environmental Protection, the U.S. Army Corps of Engineers' propensity to grant stream-destroying permits without oversight and the easing of environmental controls by the Bush administration.
Shnayerson's compelling take on toxic mining methods and their heartrending impact on Appalachian inhabitants and their culture, has a wider focus than Erik Reece's 2006 title, Lost Mountain, which reported on one mountaintop's destruction, and strong echoes of the stomach-churning legal machinations recounted in Jonathan Harr's 1995 bestseller, A Civil Action.
See: Michael Shnayerson web page.
See: Marsh Fork Elementary: Journey Up Coal River | A Community and Strip Mining
See: WATER | Aurora Lights. Public Health & Coal Slurry - Water Quality ::: Journey Up Coal River
See: Tree spiker : from Earth First! to lowbagging: my struggles in radical environmental action
See: Leveling Appalachia: The Legacy of Mountaintop Removal Mining
See: Environmental Issues and Challenges in Coal Bed Methane Production
See: Climate Ground Zero
See: Mountaintop Removal
I attended the Energy Conference 3/31 - 4/2/2011 and will be adding notes and information to this posting soon.
Getting serious about natural gas at the 2011 Cornell Energy Conference.
Photo by Neil Zusman.
See: Cornell University Law School - 2011 Energy Conference
First posted the photographs on 4/8 and liked how it played against Dylan and the Dead (1989) "All Along the Watchtower", but copyrights... I couldn't use Dylan and the Dead on YouTube- rock it Google.
But now I think the ballads about John Henry resonate for me - the classic man against machine tale, and I think that this conference was about that and more (mechanical, chemical). It needs a ballad. Sort of like the one about digging a tunnel for the railroad...but more about the one in progress, digging for the truth. The music is from the great Anthology of American Music. Vol. 2. (Neil Zusman, 2011-04-19).
“John Hardy” stands right next to “John Henry” as one of the most popular “figures” in the folk song tradition. (In the Anthology too, they are next to each other). In fact, many people combined the two songs and many scholars confused the two characters as Alan Lomax once said. Both were black railroad workers but their story is quite different.
The historical John Hardy killed a man during a crap game and was hanged for his crime. Before his execution he wanted to make peace with God so they sent a preacher and went to the river to baptise him. On the scaffold he claimed his repentance for his crime and probably sang some verses that would be included in the ballad that bore his name.
Harry Smith, ed. Anthology of American Music. Vol. 2. Smithsonian Folkways Recordings. 1997. "The Williamson Brothers & Curry: Gonna Die With My Hammer in My Hand".; "The Carter Family: John Hardy Was a Desperate Little Man."
Discover this great Anthology of American Folk Music by Harry Smith here and an even more amazing resource exploring it:
Gadaya. The Old Weird America. "Gonna Die with a Hammer in my Hand." Electronic Resource. Accessed 2011-04-19.
Steel-drivin' men like John Henry used large hammers and stakes to pound holes into the rock, which were then filled with explosives that would blast a cavity deeper and deeper into the mountain. In the folk ballads, the central event took place under such conditions.
Eager to reduce costs and speed up progress, some tunnel engineers were using steam drills to power their way into the rock. According to some accounts, on hearing of the machine, John Henry challenged the steam drill to a contest. He won, but died of exhaustion, his life cut short by his own superhuman effort.
Carlene Hempel, Deb Procopio, Dan Shaver, Beth Novak. John Henry The Steel Driving Man. Electronic Resource. Accessed 2011-04-19.
See: Congress Launches Investigation Into Gas Drilling Practices
Special Community Forum:
Thursday, March 31, Friday, April 1, Saturday, April 2, 2011.
Cornell Law School | Free Admission
Natural gas drilling using hydraulic fracturing ("hydrofracking") may be poised to begin in Upstate New York.
...This heated issue is part of the larger state, national, and international energy picture. The conference will use natural gas drilling as a lens to explore energy policy, the global energy market, and the integral role the law can and must play in creating energy security and ensuring a sustainable future.
...The conference will explore, among other topics, the legal issues associated with natural gas drilling and energy policy, different scientific perspectives on how clean and sustainable natural gas is, alternative clean energy sources, and the potential risks and benefits of shale gas development in Upstate New York.
PLEASE NOTE: Seating is limited at most panels, and registration is first-come, first-served. Registrants not seated in the amphitheater where the panel is taking place will be seated in an adjacent amphitheater where the panel will be broadcast live via simulcast. Contact Ben Tettlebaum, bwt32@cornell.edu, with questions or concerns.
In this powerful and far-reaching indictment of George W. Bush's White House, Robert F. Kennedy, Jr., the country's most prominent environmental attorney, charges that this administration has taken corporate cronyism to such unprecedented heights that it now threatens our health, our national security, and democracy as we know it... --from the book jacket.
Robert Kennedy Jr. says we the people have the right to protect our commons.
See: Sarah van Gelder. Yes Magazine. May 27, 2010. "Protecting our Water Commons: Interview with Robert Kennedy Jr."
van Gelder: How important is the public trust doctrine in enforcing the idea that the waters are a commons and that ordinary people have a right to it?
Kennedy: There are two ancient laws that underlie all modern environmental laws: One is the nuisance doctrine that essentially says you can use your property any way you want, but if you pollute and it escapes your property and goes onto somebody else’s property, you’re violating the law.
The other is the public trust doctrine, which says you can’t do anything that is going to diminish the commons, which includes any property that is not susceptible to private property ownership, like air, water, the fisheries, wetlands, wildlife, the wandering animals, rivers, streams, shorelines, aquifers, underground rivers, etc. Everybody has the right to use the commons, but nobody can use them in a way that diminishes their use and enjoyment by others.
This is ancient law that goes back to Roman times when every citizen—rich or poor, humble or noble, African or European—had a right to cross the beach, throw in a net, and take out a share of the fish. And the emperor himself couldn’t stop them.
The first thing that happens in a tyranny is the privatization of the public trust by powerful entities...
See: Flow - The War Between Public Health and Private Interests
See: Robert F. Kennedy Jr. Feb. 19, 2004. The Nation. "The Junk Science of George W. Bush".
See: Robert F. Kennedy, Jr. Mobilizes on Mountaintop Removal
See: Mountaintop Removal Redux: Bobby vs. Blankenship II
See: New Starpower in the Fracking Fight
See Also:
Barlow, Maude. 2009. Blue Covenant: The Global Water Crisis and the Coming Battle for the Right to Water. The New Press, June 1.
Ivins, Molly. 2003. Bushwhacked : Life in George W. Bush's America. 1st ed. New York: Random House.
Shnayerson, Michael. 2008. Coal River. 1st ed. Farrar, Straus and Giroux, January 8.
The coining of the term eco-terrorism is credited by many to the Executive Director of the Center for the Defense of Free Enterprise, Ron Arnold.
In the aftermath of the September 11 terrorist attacks, the word 'terrorism' has become a potent political weapon. For years Arnold has blurred the boundaries between what constitutes civil disobedience and elevated vandalism to equal terrorism. The conflation of civil disobedience with terrorism is a calculated strategy.
Legislation using the cover of cracking down on 'eco-terrorism' - such as that currently being promoted by the American Legislative Exchange Council - is percolating its way through the legislatures of a number of U.S. states. While vandalism and criminal damage is already illegal, the attraction of such legislation is in defining "terrorism" so broadly as to ban civil disobedience.
One of the most potent tactics employed over the last twenty years in the environment movement has been through organising peaceful civil disobedience protests. Such protests often result in an issue gaining widespread media coverage prompting public discussion of important public issues and, in some cases, resulted in environmental victories.
Groups that have a high media profile also have the ability to successfully raise funds from appeals directly to millions of citizens. For the conservative movement, legislating against civil disobedience under the guise of cracking down on 'ecoterrorism' would dramatically reduce both the media profile and fundraising capacity of groups such as Greenpeace, the Rainforest Action Network and local grassroots groups.
Please note that information taken from Wikis should be verified using other, more reliable sources. It is a good place to start research, but because anyone can edit a Wiki, we do not recommend using it in research papers or to obtain highly reliable information.
The Mayor of tiny Dish, Texas, north of Fort Worth, continues to stir up controversy with his claims of air pollution from oil and gas activities causing health concerns in his community. The mayor appeared at the RRC's January 12 open hearing. You can watch his testimony here (go to item 17 on the agenda).
The mayor's appearance was prompted by an item placed on the agenda by Commissioner Michael Williams, which in turn had been prompted by a letter sent to the Commissioners by State Rep. Ron Burnam. Rep. Burnam's letter asked the RRC to place a moratorium on permits for wells in the Barnett Shale around Fort Worth until the Texas Commission on Environmental Quality (TCEQ) has finished its investigation of air quality in the area.
In response, Commissioner Williams proposed that the Commissioners write a letter to the Texas Attorney General asking for a formal opinion whether the RRC has authority to issue such a moratorium. (Rep. Burnam has also asked the City of Fort Worth to issue a similar moratorium on well permits in the city limits.) I have written about the controversy concerning the town of Dish in a previous post.
John McFarland is a shareholder at Graves, Dougherty, Hearon & Moody in Austin Texas specializing in representation of landowners and mineral owners in oil and gas matters in Texas.
See: Health Issues Follow Natural Gas Drilling In Texas
See: How Should We Do the Mountain?: Who the heck is Calvin Tilman?
Insights and Commentary on Environmental and Energy Issues Worldwide.
Greenberg Traurig, LLP is an international, multidisciplinary law firm with approximately 1800 attorneys and governmental affairs professionals in 32 locations across the United States and in Europe and Asia. The firm was selected as the 2007 USA Law Firm of the Year by Chambers and Partners.
See: David Mandelbaum. December 12, 2010. "Marcellus Shale Update: NY Moratorium Bill Vetoed, NY Executive Order, DRBC Draft Regs, and DRBC Hearing Curtailed."
See: Robert Charrow and Laura Klaus of GT Washington D.C. and David Mandelbaum of GT Philadelphia. Feb 4, 2011. "AEP v. Connecticut: Climate Change as a Public Nuisance".
Earthjustice Fast Facts
Did you know? We've provided legal representation at no cost to more than 700 clients, from the Natural Resources Defense Council and the Wilderness Society to community-based coalitions. Here are some more facts about us:
- Founded in 1971 as the Sierra Club Legal Defense Fund
- Name changed to Earthjustice in 1997
- Headquartered in Oakland, CA
- Number of employees: ~150
- President: Trip Van Noppen
NEW ORLEANS, Louisiana, August 30, 2010 (ENS) - Two environmental groups Friday filed a motion to intervene in the lawsuit brought by Texas Attorney General Greg Abbott and the State of Texas against the U.S. Environmental Protection Agency regarding the EPA's June 2010 disapproval of part of Texas' air permitting program.
Environmental Defense Fund and Environmental Integrity Project filed the motion in the U.S. Court of Appeals for the 5th Circuit in New Orleans.
The environmental groups are seeking to intervene on the side of the EPA. If they are allowed to intervene, they will argue that the agency properly disapproved the Texas Flexible Air Permitting program.
"Governor [Rick] Perry wants people to think that Washington is picking on him," said EDF energy program director Jim Marston. "The truth is he wants Texas to get a special pollution pass that no other state gets."
"All other 49 states follow the Clean Air Act, and it's time that politicians and polluters in Texas follow it, too," Marston said. "Our intent is to make sure this lawsuit considers the facts and science surrounding this issue and that re-election campaigns aren't waged in the courtroom."
See Molly Ivins. Bushwhacked: Life in George W. Bush's America
EIP combines research, reporting, and media outreach to spotlight illegal pollution, expose political intimidation of enforcement staff, and encourage federal and state agencies to take enforcement action to stop these practices. EIP’s work has been cited in Congressional hearings and debates, in reports by the US General Accountability Office, and in frequent news articles.
...no other organization is so sharply focused on the vigilant enforcement of environmental laws.
See: Gasland - The Debate
Terry Mutchler, executive director of the state’s Office of Open Records.
Jennifer Learn-Andes
Luzerne County Reporter
The public should have access to the inner workings of Luzerne County home rule subcommittees, say three experts on the state’s open meeting law.
Unwarranted closed-door meetings “fracture public trust,” said Terry Mutchler, executive director of the state’s Office of Open Records.
...“If they’ve opened the committee meetings to the public, it’s a natural follow that the subcommittee meetings be open as well,” Mutchler said, noting that her office has no legal jurisdiction over alleged violations of the Sunshine Act governing open meetings.
Melissa Melewsky, media law counsel with the Pennsylvania Newspaper Association, said the Sunshine Act applies to committees of an agency that render advice, which would include the subcommittees.
“I think the language of the law is pretty clear. I think members of the public who are seeking public access are very legitimate in doing so. I think they have a strong argument,” she said.
The West Virginia Highlands Conservancy, Friends of Blackwater, and former West Virginia State Park Chief Cordie Hudkins have taken the fight over the proposed drilling for natural gas in Chief Logan State Park to the West Virginia Supreme Court of Appeals. There they have been joined by the West Virginia chapter of the Sierra Club as well as the West Virginia Division of Natural Resources and the West Virginia Department of Energy who also oppose the drilling.
The controversy is over a proposal by Cabot Oil and Gas to drill several gas wells inside Chief Logan State Park. The Department of Environmental Protection had originally denied the permit to drill based upon a statute which it believed prohibited drilling for gas in a state park. Cabot Oil and Gas (the driller) appealed to the Circuit Court of Logan County which reversed the Department of Environmental Protection and ordered that the permit be issued.
The case also has the potential to interfere with an important source of funding for West Virginia’s parks and recreation. West Virginia receives extensive funding for its parks from the federal Land and Water Conservation Fund. A condition of that funding is that the land dedicated for park use remain so and not be converted for non-recreational use. If West Virginia allows part of Chief Logan to be converted from recreational use to minerals extraction, this would interfere with funding under this program.
Gas drilling companies such as Halliburton say the gas drilling technique known as hydraulic fracturing, or fracking, is safe, but opponents contend it pollutes groundwater with dangerous substances.
Now, new evidence has emerged possibly linking natural gas drilling to groundwater contamination. ProPublica journalist Abrahm Lustgarten reports federal officials in Wyoming have found that at least three water wells contain chemicals used in hydraulic fracturing.
Plaintiffs in Connecticut v. American Electric Power allege that six utilities' emissions are a public nuisance.
U.S. Supreme Court Monthly Argument Calendar. Tuesday, April 19, 2011. 10-174. AMERICAN ELECTRIC POWER CO. V. CONNECTICUT.
See: SCOTUS (Supreme Court of the United States) Blog.
In the seemingly endless climate change debate, the regulation of greenhouse gases (GHGs) is a contentious issue among scientists, advocacy groups, lawmakers and businesses. Opinions are strong and varied as to how GHG emissions affect the environment and to what extent they should be controlled.
In 2004, a group comprising eight states, New York City and three non-profits sued six GHG-emitting electric power corporations—American Electric Power Company, American Electric Power Service Corporation, Cinergy Corporation, Southern Company, Tennessee Valley Authority and XCEL Energy—for allegedly contributing to global warming. The plaintiffs in Connecticut v. American Electric Power claimed the utilities’ carbon dioxide (CO2) emissions were a public nuisance causing an array of environmental and personal injuries, including smog-induced respiratory problems; deaths related to prolonged heat waves; property-damaging floods; a decrease in mountain snowpack, a key water source for California; beach erosion from rising sea levels; and loss of biodiversity.
Arguing the utilities’ CO2 emissions constitute 10 percent of the U.S.’s total CO2 emissions, the plaintiffs sought injunctive relief that would hold the defendants jointly and severally liable for causing a public nuisance, cap the utilities’ emissions and require them to reduce emissions by a certain percentage annually for at least 10 years.
A trial court dismissed Connecticut v. AEP, saying it presented political questions that "are not the proper domain of judges" and that the "scope and magnitude of the relief Plaintiffs seek reveals the transcendently legislative nature of this litigation."
But on appeal, the 2nd Circuit allowed the plaintiffs’ nuisance claims to proceed. When the appeals court denied the defendants’ petition for en banc review, the utilities filed a petition for certiorari, which the Supreme Court granted on Dec. 6, 2010.
"This case had to come to the high court," says Patrick Raher, a partner in Hogan Lovells’ environmental group. The Supreme Court must make it clear that the legal system has no business creating CO2 policies, he says.
See: New climate change case headed to Supreme Court. AP. April 18, 2011.
The Obama administration, in a recently filed brief in the Connecticut case, American Electric Power v. Connecticut, is arguing that it may not be prudent for the high court to allow these types of cases to go forward. (Coyle, 2010)
"If the plaintiffs can tag utilities for CO2 liability, the damages are potentially staggering," says McCarter & English Partner Wylie Donald, co-chair of the firm’s Climate Change and Renewable Energy Practice.
Allen Kacenjar, a principal in Squire Sanders’ Global Climate Change Practice, says Connecticut v. AEP has serious implications for companies with GHG-emitting facilities. "What’s at stake is whether the federal courts will basically become a clearinghouse for climate change tort actions," he says.
The Supreme Court will hear arguments on April 19, and justices will then attempt to answer the case’s crucial question: Can courts regulate GHG emissions in the absence of comprehensive climate change legislation?
See: Google Scholar Search on this case.
In 2009, the U.S. Court of Appeals for the Second Circuit upheld the states’ right to bring this lawsuit. The power companies appealed the case to the Supreme Court, which will hear arguments on April 19, and is expected to decide the case by July.
Attorney General Schneiderman is vigorously defending the appeals court’s ruling to protect New Yorkers from the harms caused by climate change. These harms include causing asthma and other respiratory diseases, eroding beaches and inundating properties on Long Island, increasing heat-related deaths in New York City, lowering water levels in the Great Lakes that harm the shipping industry, and killing off hardwood forests in the Adirondacks.
See: New York State Office of the Attorney General. "A.G. Schneiderman Urges U.S. Supreme Court to Uphold States' Rights to Sue Carbon Dioxide Polluters." New York State Office of the Attorney General. March 14, 2011.
See: A copy of the Attorney General's Brief 10-174. Filed March 2011.
See: New York State Office of the Attorney General: Media Center. "Schneiderman to Feds: Commit to Study Safety Impacts of "Fracking" in Delaware River Basin in 30 days or I'll Sue." 2011-04-18.
See also: Pew Center on Global Climate Change. “Massachusetts et al. v. EPA et al..” Pew Center on Global Climate Change 2 Apr. 2007. Web. 4 Apr. 2011.
Supreme Court Decision in Massachusetts et al vs. Environmental Protection Agency
On April 2, 2007 the Supreme Court released its ruling in the case of the state of Massachusetts vs. the Environmental Protection Agency. Massachusetts and eleven other states, along with several local governments and non-governmental organizations (petitioners), sued the EPA for not regulating the emissions of four greenhouse gases, including carbon dioxide (CO2), from the transportation sector. The petitioners claimed that human-influenced global climate change was causing adverse effects, such as sea-level rise, to the state of Massachusetts. In a 5-4 decision, the court ruled in favor of Massachusetts et al, finding that EPA has the authority to regulate CO2 and other greenhouse gases.
The decision was written by Justice Stevens and was signed by Justices Kennedy, Souter, Bader Ginsburg, and Breyer. Chief Justice Roberts and Justices Alito, Scalia, and Thomas dissented.
See: Coyle, Marcia. “High court could melt climate-change cases.” The National Law Journal | Law.com 13 Sept. 2010. Web. 13 Apr. 2011.
See also: LaMonica, Martin. "Supreme Court rules EPA can regulate greenhouse gases". 2007-04-02. CNET News. Web. 11 Apr. 2011.
See also: Broder, John M. "Keep Courts Out of Climate Policy, G.O.P. Lawmakers Say." 2011-02-08. NYT Green. Web. 11 Apr. 2011.
Perched on an Alaskan barrier island, the village of Kivalina faces imminent destruction because of melting sea ice.
Kivalina, Alaska, has sued energy companies over
melting sea ice that threatens the town.
AP Photo/Northwest Arctic Borough
Now, the community's legal effort — which pins the blame on energy companies for the change in climate — is in danger as well. So, too, is a pair of high-profile climate-change suits that may be taken up by the U.S. Supreme Court, one involving an effort by Connecticut and other states to reduce greenhouse-gas emissions, the other stemming from Hurricane Katrina.
See: Greenhouse Gas Emissions Case Heads to Supreme Court.
See: SCOTUS (Supreme Court of the United States) Blog.
All three suits rely upon the theory that climate change is a public nuisance and, therefore, state and local governments, as well as individuals who have been harmed, can sue for damages or injunctions. The Obama administration, in a recently filed brief in the Connecticut case, American Electric Power v. Connecticut, is arguing that it may not be prudent for the high court to allow these types of cases to go forward.
If the justices grant review, the stage could be set for reversal of a rare, recent high court victory for environmentalists, the 2007 decision in Massachusetts v. Environmental Protection Agency. The 5-4 ruling in the Massachusetts case found a special standing to sue for states that brought that first global-warming case to the Supreme Court. The majority also held that the Environmental Protection Agency (EPA) had authority under the Clean Air Act to regulate greenhouse-gas emissions.
"If the solicitor general gets the Court to take cert, I would be very confident they're going to undercut Massachusetts v. EPA," said environmental scholar Randall Abate of Florida A&M University College of Law. "The sooner the Court gets to revisit it, the more likely it will be gutted. The trend has been to be more restrictive on standing. This is really making the environmental community nervous and angry."
The Katrina-related case — In re Ned Comer — is also at the Supreme Court but is coming to justices in an unusual fashion — through a petition for a writ of mandamus. The Alaska case — Native Village of Kivalina v. Exxon Mobil Corp. — is undergoing briefing in the U.S. Court of Appeals for the 9th Circuit.
"Each case has its legal strong points and each has its legal vulnerabilities," said James May of Widener University School of Law, who has filed amicus briefs on behalf of environmental law professors in the Connecticut and Kivalina cases.
"As a federal litigator for 15 years and a law professor for 20, what I find concerning is the executive branch stepping in front of states and private litigants who are trying to get their day in court. If this was the Bush administration doing this, I think it would be a very divisive political issue."
...The energy companies' case is now stronger because of the EPA's actions and the solicitor general's brief, he said. "I don't know if it gets you there finally. If I was writing plaintiffs' briefs, I would be pounding the table and saying, `If you're telling me this is a political question, the political arm to deal with this is Congress and they have done nothing.' "
Which is exactly what Pawa, who represents three land trusts in the Connecticut case as well as the Kivalina villagers, said. "The solicitor general's brief is not very damaging because it was unpersuasive," Pawa said. "It's just wrong. It tries to repackage the political-question doctrine, which was thoroughly dealt with on its merits by the 2d Circuit, as prudential standing.
"And, there are no federal regulations applicable to existing coal-fired power plants. They haven't even been proposed. There have been some rules proposed for new plants, but no rules for existing plants, which are at issue in these lawsuits."
In looking at the various iterations of climate-change litigation, the most "evolved" of the three cases is Kivalina, according to Jones and others, and the one that worried most corporate defendants. "It contained a conspiracy count, which is what the plaintiffs' bar hoped would get them money damages," Jones said. "And it has more sympathetic and real plaintiffs than the other cases. Here you have a particular village that is going to be under water."
Kivalina from Cristina Valdivieso + Jon Connor on Vimeo.
Various scientific and government studies report that the right combination of storms could flood the entire village at any time and have recommended relocation at costs varying up to $400 million.
If the Court does not act on Connecticut or Comer, Jones said, "I think Kivalina will go forward. I think that one could end up being the most dangerous of any of them. But getting into court is one thing; proving causation is a very hard row to hoe."
See: Shearer, Christine. "My Journey Into Kivalina v. ExxonMobil et al." Countercurrents. Dec. 1, 2010.
See also: Shearer, Christine. Kivalina: A Climate Change Story. Haymarket Books, 2011. Print.
This paper reviews the history of litigation concerning hydraulic fracturing.
LEAF Petitions EPA to Withdraw Primacy—1994
In 1994, an organization known as Legal Environmental Assistance Foundation (hereinafter referred to as “LEAF”) petitioned EPA to initiate proceedings to withdraw approval of the Alabama UIC program.
LEAF alleged that the Alabama program was deficient because it did not regulate hydraulic fracturing activities associated with coalbed methane gas production and the federal Safe Drinking Water Act (hereinafter referred to as “SDWA”).
LEAF further alleged that the SDWA required regulation under federal guidelines over hydraulic fracturing operations. In 1995, EPA denied the petition because it determined that hydraulic fracturing did not fall within the definition of "underground injection" under the SDWA.
EPA had concluded that methane gas production wells, which are also used for hydraulic fracturing of the coalbeds, are not required to be regulated under the SDWA because the principal function of these wells is not the underground emplacement of fluids; their principal function is to produce coalbed methane gas.
See: IADC. "Alabama lawsuit poses threat to hydraulic fracturing across U.S." Drilling Contractor. Jan/Feb. 2000.
See: Affirming Gasland
Elizabeth Larkin, Cortland County Clerk. You can search Land Records at the Cortland County Clerk's Office online and read the full-text of lease documents and see if your neighbors have already signed gas leases.
Instructions
Click "Search Land Records". On the next page, just click "Log In", you do not need a password. On the next page, click "I accept".
On the next page, uncheck "Ignore party type when search for name"; change the dates if you wish, choose "Document Type: Lease" from the drop-down menu.
Next to the field that says "Town", use the pull-down menu to pull down your town and then click the search button at the top right of the page. You can also try variations.
About the Landman Report Card
A landman is an agent that represents oil & gas companies in negotiations with landowners: their job is to get the best terms for the company. This interaction is perhaps one of the most important elements of the oil and gas exploration and extraction process.
Though many landmen sign onto and abide by codes of ethics, some landowners have accounts of landman dishonesty and misbehavior. Landowners are particularly vulnerable to misinformation at this moment as it is often the first time that they make contact with the oil and gas industry. The Landman Report Card was started to assist landowners in this tricky process by allowing landowners to educate and assist each other.
This site provides tools to learn about landmen and their companies through reading reviews submitted by users. It also allows users to submit their own report cards, contact other users and use the site as their own private diary of interactions with this industry.
The Landman Report Card is produced by the ExtrAct group at MIT in collaboration with citizens' alliances in Colorado, New Mexico, Ohio and West Virginia as well as the Oil and Gas Accountability Project. ExtrACT is funded by MIT's Center for Future Civic Media, a research group dedicated to developing novel web-based technologies for citizen journalism.
To get in touch with the ExtrAct team, email us at extract@media.mit.edu.
The lawyer leading a $33-million lawsuit against Encana, the Alberta government and the province’s energy regulator says the case speaks to broader environmental concerns across North America about fracking.
“It’s very much the same issues all over,” said Murray Klippenstein, a Toronto-based litigator.
Klippenstein is representing landowner Jessica Ernst, who has long argued that coal bed methane drilling around her Rosebud-area home northeast of Calgary has resulted in the pollution of her well water.
“The hydraulic fracturing issues that Jessica raises in her lawsuit are coming up more and more publicly, with more and more concerns, not only in Alberta, but in B.C. and Quebec, and all over the United States,” he said.
A lawsuit filed in Drumheller last week alleges Encana, Alberta Environment and the Energy Resources Conservation Board are all responsible for damages. She claims the natural gas giant for faulty drilling practices, and the government and board for failing to properly investigate or enforce the province’s environmental rules.
Ernst is demanding more than $10 million from each.
See: New Lawsuit Filed in Fracking Country
See: Pennsylvania lawsuit says drilling polluted water
See: Affirming Gasland
See: Breaking news: EPA vetoes Spruce Mine permit
See: WATER: Rulings Restrict Clean Water Act, Foiling E.P.A.
Posted on January 15, 2010 by William A. Ruskin.
"Is DEC Ill-Equipped to Oversee Marcellus Shale Natural Gas Drilling?"
"According to a report issued by Cornell Law School, the State of New York’s blueprint for Marcellus Shale development proposes 187 new regulatory activities necessary for the oversight of natural gas drilling, but the blueprint does not explain how DEC will carry out these activities."
Marcellus-Shale.us. 2019-2010. Website. Pennsylvania.
Key paragraphs from the
ENERGY POLICY ACT OF 2005
Includes photographs of fracking trucks.
See press release, U.S. Environmental Protection Agency (EPA): EPA Announces “Eyes on Drilling” Tipline.
Extensive and thorough source of information on Marcellus Shale gas drilling in Pennsylvania. Non-members have limited access to some of the county and township specific information provided on well data, maps, production reports, violations, and company details. There is an option to become a guest member.
marcellusgas.org is located in Montrose, PA and can be contacted at 570-278-1994
There is an email contact form here.
About MarcellusGas.Org
The MarcellusGas.Org website was created to provide easy-to-access information pertaining to Marcellus gas wells being drilled in Pennsysylvania. The site was launched in September of 2010, with plans to substantially expand the information available in upcoming months.
MarcellusGas.Org welcomes and encourages comments, opinions, and suggestions. Please send your comments, and let us know what you think. Use our Contact MarcellusGas.Org form to send us your thoughts.
Sample Map showing horizontal directional drill located directly under the Elk Lake School in Dimock, PA. Find articles on Dimock, PA on Mixplex.
Join us on September 25-27 in Washington, DC for Appalachia Rising!, a national response to the unmitigated destruction of Appalachia's mountains, air and water through mountaintop removal coal mining. Appalachia Rising! will follow a long history of action for a just and prosperous Appalachia.
Appalachia Rising, an event which will take place in Washington DC, September 25-27, 2010 is a national response to the poisoning of America’s water supply, the destruction of Appalachia’s mountains, head water source streams, and communities through mountaintop removal coal mining. It follows a long history of social action for a just and sustainable Appalachia.
Appalachia Rising strives to unite coalfield residents, grass roots groups, individuals, and national organizations to call for the abolition of mountaintop removal coal mining and demand that America’s water be protected from all forms of surface mining.
Appalachia Rising -building community/labor alliances from Anne Lewis on Vimeo.
