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Author Topic: Fossil Fuels: Degraded Democracy and Profit Over Planet Pollution  (Read 8129 times)

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AGelbert

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Nixon oversaw US Peak Crude Oil, when in 1970 the Texas Railroad Commission who effectively limited Texan oil production to maintain price stability, lifted all restrictions on production. Nixon could forsee that decreasing US oil production would lead to increasing oil imports and huge outgoings of Dollars.  So he decoupled the Dollar from Gold allowing it to float, effectively removing all limits on money-printing. He also realised that publicly acknowledging Peak Oil would have dramatic effects on the oil majors future prospects, and share price, so Peak Oil was never to be acknowledged.

By 1977 the situation had become:


Carter's "Fireside chat" of 1977 shows he clearly understood about Peak Oil and its consequences.


as did Obama's in his 2013 speech
:
Quote
https://obamawhitehouse.archives.gov/the-press-office/2013/06/25/remarks-president-climate-change
What is true is that we can’t just drill our way out of the energy and climate challenge that we face.  (Applause.)  That’s not possible.

And while the climate challenge would bite some time after 2030   , the energy challenge will bite before 2020   . Which would worry you more? 

How could they NOT know, with all the experts and unpublished data that they have access to, and internal oil company forecasts for production that they are privy to? 


So Trump must know that too, even if he doesn't want to believe it. He probably knows the exact year that the Peak Oil problem will become impossible to hide, and what year the whole economy will collapse, and how much longer it can be put off by how much more money-printing. It's not something that can be set aside for idealogical reasons. The next crash will be the last.


Your grasp of the peak oil math is accurate, but your grasp of the relative importance of catastrophic climate change versus peak oil is woefully inaccurate, if not sadly upside down. WHY?

Before I answer that, please realize that that Big Oil, despite knowing the peak oil math, stubbornly have tried to cling to their UPSTREAM "business model". The following graphic is irrefutable evidence that Big Oil, HAVING THE MONEY to transition to clean energy, IGNORED their own peak oil research and DOUBLED DOWN on UPSTREAM (i.e. exploration for, and exploitation of, oil and gas sources   ) investments:
 
 

They certainly could have spent that 900 BILLION DOLLARS in Renewable energy, but greedily (and stupidly ) decided NOT TO on the basis of extending the day of reckoning for peak oil (and BLATANTLY ignoring the fact that said upstream activity would goose catastrophic climate change even more). So, that gigantic amount of money argues against all the claims you just made about Big Oil (and Trump) "knowing the score", even though Carter and Nixon DID know the score (Obama did NOT really know the score! His mealy mouthed attempts to do "all the above" in energy technologies was clear evidence of that.)

Yet, you continue to believe that Big Oil is acting rationally by giving more importance to fueling civilization than trying to stop polluting it to extinction. The two dangers cannot be weighed logically as you continue to attempt to do. Now to answer the "WHY?" I first presented to you above.


Let us assume, for the sake of non-argument, that your RCP 4.5 scenario assumptions, which is probably where you get the rationale for the year 2030 being the leading front of costly climate change impacts, are accurate (I think we are in RCP 8.5 or worse territory now, but we have argued that before and you are sticking with your conservative RCP 4.5 view no matter what.  :P ).

Peak civilization sustaining ENERGY (which is what you REALLY MEAN by "peak oil"  ;)) is, as you claim, a sort of light switch type (i.e. sudden) event that triggers a major collapse.

Of course we all want to avoid that. Of course, the trajectory we are on NOW will definitely produce that collapse eventually.

However, your estimate of the date of said collapse being around 10 years prior to the major catastrophic climate events is NOT a proper or reasonable rationale for prioritizing looking for more fossil fuels above transitioning to clean energy and banning fossil fuel use BECAUSE:

1) Lack of energy for most people to live a decent life will cause a lot of death and misery, but won't make us go extinct. After the main event, a new equilibrium will be established within a few decades or less. It is NOT the end of the world and should NOT be treated like the number one priority for the perpetuation of a viable biosphere and the human species.

2) Lack of energy will NOT cause multiple biosphere species extinctions, many of which WE NEED to avoid going extinct ourselves.

3) Catastrophic climate change will continue to WORSEN for over a CENTURY (or up to 1,000 YEARS!) after the first impacts are felt (as they are NOW, not in 2030, being felt).

I really do not see why this is so hard for you to grasp. We live in an interconnected system of biological activity. THAT is in DANGER. THAT is the first, 2nd, 3rd, (keep going for over a 100 years counting) PRIORITY  for action in the defense of the biosphere, if we wish to survive.

An integral part of surviving is to STOP POLLUTING THE PLANET. Any claim to "delaying" the collapse, as a rationale to engage in MORE oil and gas UPSTREAM investment and exploitation    , actually makes the collapse MORE LIKELY SOONER, in addition to increasing the probability of our extinction for not taking timely action to preserve the biosphere.

This is not all that hard to figure, Palloy. The fossil fuel "industry" doesn't want to let go of their "business model". So they keep making excuses that counteract the good advice of their own scientists. As long as the fossil fuelers like Putin and Exxon etc, et al call the shots and pull the Trump strings, we ARE SCREWED. Greed has destroyed their ability to reason. It's time you accepted that sad reality is based on irrational greed, not "peak oil" math.







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AGelbert

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The Epic Battle Between Big Oil  and the People of California

Published on May 27th, 2017

Quote
“In California, for all of the progress made, we have enormous problems that aren’t being addressed by the elected leaders to date,” said Adam Scow, California Director of Food and Water Watch. “It is an embarrassment that Maryland and New York have banned fracking, but California has not. We need our elected officials to enact a real progressive agenda banning fracking & fossil fuels. Anything less is unacceptable.”


http://redgreenandblue.org/2017/05/27/epic-battle-big-oil-people-california/
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AGelbert

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Trump Says Drop Dead To Planet 


June 2, 2017

Big Picture Interview: Mike Papantonio, America's Lawyer (RT America)/Ring of Fire Radio/Law and Disorder. After days of speculation - Donald Trump announced today that he would pull the US out of the Paris Climate Deal. Why is this so-called nationalist president trying to surrender America's climate leadership role to China?

Agelbert NOTE: I disagree that the problem is Trump's "lack of intelligence". The PROBLEM is that Trump was BOUGHT by the fossil fuel fascists to DO what he is DOING! ALL of this was TOTALLY predictable!
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AGelbert

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Quote
Just days after President Trump’s inauguration, his administration hastily issued federal permits authorizing construction of the pipeline across the Missouri River, just upstream of the Standing Rock Reservation. Today a federal judge ruled that those permits violated the law.

The Corps relied on flawed, one-sided analysis prepared by DAPL—and never subjected to any independent review—minimizing the risks of oil spill, and ignored the Tribe’s treaty rights to water, fishing, and hunting. In December 2016, the Corps correctly found that those issues needed further consideration through an EIS process. On his second full day in office, the Trump administration overruled the Corps and ordered the permits to be granted. Standing Rock Chairman Archambault was on his way to meet with the White House when the easement was issued—no one from the Trump administration ever talked to a representative of the Tribe before ordering the project to go forward.

The new administration failed to engage in good faith in the process.
Timeline of Events:

July 27, 2016
The Tribe files a lawsuit in federal district court in Washington, D.C., where it was assigned to U.S. District Judge James E. Boasberg.

August 4, 2016
The Tribe asks the Court for a preliminary injunction since the pipeline is already under construction and would be finished before the case could be formally decided.

August 24, 2016
Judge Boasberg holds a hearing on the motion in Washington, D.C. Over 500 people participated in an action outside the federal courthouse in support of the Tribe. The Judge indicated that he would rule in roughly two weeks.

Sept. 3, 2016
While the parties are awaiting the Court’s decision, Dakota Access bulldozed an area of the pipeline corridor filled with Tribal sacred sites and burials that had been identified to the Court just the previous day. Demonstrators trying to prevent the destruction of the sacred site were pepper sprayed and attacked by guard dogs (as documented by Amy Goodman and her Democracy Now camera crew.) On Sept. 4, the Tribe files an emergency motion for a temporary restraining order to block the construction until a decision is reached on the injunction motion.

Sept. 6, 2016
Judge Boasberg holds a hearing on the emergency motion for a temporary restraining order. The Judge issues a temporary restraining order for the pipeline corridor nearest the Missouri River but declines to halt construction on the portion of the pipeline route that had recently been identified as sacred tribal burial ground.

Sept. 9, 2016
The Court denies the Tribe’s motion for a preliminary injunction. Minutes later, three federal agencies—The Department of Justice, Department of the Army and Department of the Interior—issue a joint statement announcing that the federal agencies will halt any additional permitting and reconsider its past permits of the project. The statement states that while it appreciates the Court’s review, the government believes that the Tribe has raised some important issues worthy of additional consideration. It also called for a national review of the government’s approach to Tribal consultation for major fossil fuel projects.

Sept. 12, 2016
After filing an appeal of the District Court’s decision with the D.C. Circuit Court of Appeals, the Tribe files a request for an injunction pending appeal. The motion asks the Court to make the Government’s request for a voluntary pause on construction within 20 miles of Lake Oahe an enforceable requirement while the appeal process goes forward.

Sept. 16, 2016
The Court issues an order issuing an “administrative injunction … to give the court sufficient opportunity to consider the emergency motion for injunction pending appeal.” The court directed “that Dakota Access LLC be enjoined pending further order of the court from construction of the Dakota Access Pipeline for 20 miles on both sides of the Missouri River at Lake Oahe.”

Oct. 5, 2016
Oral arguments on the emergency motion for injunction are held at the Court of Appeals for the D.C. Circuit. A ruling was not issued, keeping the temporary halt to construction in place until the Court issues a decision.

Oct. 9, 2016
The D.C. Circuit issues a ruling denying the tribe’s request for an injunction pending appeal but emphasizes that it hoped that the “spirit of Section 106 [of the National Historic Preservation Act] may yet prevail” as the Court did not have the last word, and decisions still need to be made at the permit crossing at Lake Oahe. Both the appeal and the district court litigation will proceed, but the injunction covering work in the pipeline corridor has ceased.

Oct. 10, 2016
The Department of Justice, Department of the Army and Department of the Interior issue a joint statement following the court order which says in part: “The Army continues to review issues raised by the Standing Rock Sioux Tribe and other Tribal nations and their members and hopes to conclude its ongoing review soon. In the interim, the Army will not authorize constructing the Dakota Access Pipeline on Corps land bordering or under Lake Oahe. We repeat our request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.”

Dakota Access has forcefully rejected the Government’s request for a voluntary pause, and continues to pursue construction ever closer to the Missouri River and the camps of protesters.

Oct. 20, 2016
The Army Corps conducts a site visit to the area bulldozed over Labor Day to determine whether Dakota Access violated federal law by knowingly damaging a tribal sacred site. Under federal law, if Dakota Access is found to have knowingly damaged a historic or cultural resource with the intent of sidestepping the National Historic Preservation Act, the Corps cannot issue the easement. No determination has been finalized.

Oct. 24, 2016
As confrontations between Tribal water protectors and an increasingly militarized construction effort heat up, Tribal Chairman Dave Archambault II calls on the Department of Justice to conduct an investigation into heavy-handed police tactics and violations of civil rights.

Nov. 2, 2016
Following comments from President Obama in an interview on Nov. 1, Tribal Chairman Dave Archambault II issues a statement, saying in part, “While the Army Corps of Engineers is examining this issue we call on the Administration and the Corps to issue an immediate ‘stop work order’ on the Dakota Access Pipeline.” Read the Tribe's full statement.

“Earthjustice is honored to represent the Standing Rock Sioux Tribe in court as it seeks to protect its people’s sacred lands and water from the Dakota Access pipeline,” said Trip Van Noppen, president of Earthjustice, also in response to President Obama's Nov. 1 remarks. “We also want to reiterate the Chairman’s call for a full environmental impact statement. No such careful review has occurred to date. Considering all that’s at stake, that’s simply unacceptable.” Read Earthjustice's full statement.

Nov. 3, 2016
An independent expert hired by the Standing Rock Sioux Tribe (Richard Kuprewicz of Accufacts, Inc., a consulting firm that advises government agencies and industry about pipelines) finds that the government’s environmental assessment of the Dakota Access pipeline’s environmental impact was inadequate. In light of Kuprewicz’s report and the deficiencies contained in the environmental assessment, Tribe Chairman Archambault II asked for the government to reconsider its early decisions and disallow the easement for the pipeline crossing. Read the letter to Assistant Secretary Jo-Ellen Darcy. Read the Accufacts report. Read the news release.

Nov. 10, 2016
The Department of Justice announces in federal court that it will be announcing the next steps on a 'path forward' for the Dakota Access Pipeline crossing at Lake Oahe. Read the Tribe's statement.

Nov. 14, 2016
The U.S. Army Corp of Engineers announces they are delaying an easement for the Dakota Access Pipeline project until it conducts further environmental review with the Standing Rock Sioux Tribe. “We are encouraged and know that the peaceful prayer and demonstration at Standing Rock have powerfully brought to light the unjust narrative suffered by tribal nations and Native Americans across the country,” says Standing Rock Sioux Tribal Chair David Archambault II.

Nov. 15, 2016
Energy Transfer Partners, the company behind the Dakota Access Pipeline files a lawsuit charging the U.S. Army Corp of Engineers has no right to delay easement to pipeline construction.

Nov. 21, 2016
The Standing Rock Sioux Tribe issues a statement calling on President Obama to deny easement, investigate pipeline safety and protect tribal sovereignty. Read the Tribe's statement.

Nov. 25, 2016
Federal officials announce that a decision had been made to close access to the entire area north of the Cannonball River including the Standing Rock protest campsite at Oceti Sakowin. They said the decision was made because of public safety concerns and that a 'free speech zone' to the south of Cannonball River would be created. Anyone on the closed land after Dec. 5 could be charged with trespassing. Read the Tribe's statement.

Nov. 28, 2016
The Water Protector Legal Collective, an initiative of the National Lawyers Guild, files a lawsuit in U.S. District Court against Morton County, Morton County Sheriff Kyle Kirschmeier, and other law enforcement agencies for using excessive force against peaceful protesters near the Standing Rock protest camp on the night of November 20. More details. (Earthjustice, representing the Standing Rock Sioux Tribe in litigation against the U.S. Army Corps of Engineers, is not involved in this class action lawsuit.)

Standing Rock Sioux Tribe Chairman Dave Archambault II responds to Gov. Dalrymple's Nov. 28 executive order calling for mandatory evacuation of all campers located on U.S. Army Corps of Engineers lands (also known as the Oceti Sakowin camp), saying, in part, "If the true concern is for public safety than the Governor should clear the blockade and the county law enforcement should cease all use of flash grenades, high-pressure water cannons in freezing temperatures, dog kennels for temporary human jails, and any harmful weaponry against human beings." Read the Tribe's full statement.

Dec. 2, 2016
The Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe and the Yankton Sioux Tribe ask the Inter-American Commission on Human Rights to stop the violence against water protectors at Standing Rock. An official petition has been submitted to the IACHR.

Dec. 4, 2016
The Dakota Access Corporation is not granted the easement needed for construction under Lake Oahe. The U.S. Army Corps of Engineers moves to prepare an Environmental Impact Statement for alternative routes. Read more.

Dec. 5, 2016
DAPL files a motion for summary judgment. Read the legal document.

Dec. 9, 2016
Tribal representatives testify at a hearing by the Inter-American Commission on Human Rights. The hearing examined the impact of extractive industries and projects on the human rights of indigenous peoples, focusing on the Dakota Access Pipeline and the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe.

Jan. 6, 2017
The Standing Rock Sioux Tribe files a motion with the U.S. District Court in Washington, D.C., asking District Judge James Boasberg to throw out Dakota Access’s lawsuit against the Army Corps of Engineers. The Department of Justice, which represents the Corps, files a similar motion.

Jan. 18, 2017
The scoping notice soliciting public comment on the Environmental Impact Statement process for the Dakota Access Pipeline is published in the Federal Register. The notice opens the public scoping phase and invites interested parties to identify potential issues, concerns, and reasonable alternatives that should be considered in an EIS. Comments from the public are being requested through Feb. 20.

Jan. 24, 2017
President Donald Trump takes executive action towards an approval of an easement for the Dakota Access Pipeline, risking contaminating tribal and American water supplies while disregarding treaty rights. “The existing pipeline route risks infringing on our treaty rights, contaminating our water and the water of 17 million Americans downstream,” said Dave Archambault II, chairman of the Standing Rock Sioux Tribe. “We are not opposed to energy independence. We are opposed to reckless and politically motivated development projects, like DAPL, that ignore our treaty rights and risk our water. Creating a second Flint does not make America great again.” Read full statement from the Standing Rock Sioux Tribe. Read statement from Earthjustice.

Feb. 1, 2017
Senators Cantwell, Tester and Udall send a letter to the White House expressing their concern about the Presidential Memorandum issued January 24 and reports that the Army Corps of Engineers intends to grant a final easement allowing construction of the Dakota Access Pipeline without appropriate consultation with the Standing Rock Sioux Tribe and due process. Read the letter.

Feb. 7, 2017
The Army Corps of Engineers notifies Congress that—within the next 24 hours—it will issue an easement to allow the Dakota Access Pipeline to cross under Lake Oahe in North Dakota near the Standing Rock Sioux Tribe reservation. Read the EIS termination. Read the Army memorandum.

Feb. 8, 2017
The easement is issued.

Feb. 14, 2017
The Standing Rock Sioux Tribe files a motion for summary judgment, asking the Court to overturn recent Army Corps of Engineers permits of the pipeline issued without environmental review or consideration of treaty rights. The lawsuit challenges the Corps’ hasty and unexplained departure from its previous decision, and explains how the Corps ignored the Tribe’s treaty rights and seeks to destroy culturally significant and sacred sites. It also explains how the Corps violated federal statutes requiring close environmental analysis of significant and controversial agency actions. Read the legal document.

Feb. 15, 2017
North Dakota Gov. Burgum issues an emergency evacuation order of the Oceti Sakowin camp, ordering that the site be vacated by 2:00pm local time on Feb. 22. In a statement on Feb. 7, Standing Rock Chairman Archambault II had asked supporters to “please respect our people and do not come to Standing Rock and instead exercise your First Amendment rights and take this fight to your respective state capitols, to your members of Congress, and to Washington, D.C.”

Feb. 23, 2017
The Standing Rock Sioux Tribe issues Setting The Record Straight, documenting engagement on the Dakota Access pipeline.

Feb. 24, 2017
A buried memo from Interior Department's top lawyer surfaces in legal filings. The 35-page formal legal opinion, dated Dec. 4, found that the existing environmental assessment for the Dakota Access pipeline suffered from fatal flaws. The Trump administration quietly suspended the opinion as it prepared to approve the pipeline. Of the Trump administration's attempts to bury the memo, Earthjustice attorney Jan Hasselman said, "The Standing Rock Sioux deserve better. That's why we have courts." Read details.

Apr. 5, 2017
The Standing Rock Sioux Tribe applauds BNP Paribas’ decision to divest from the Dakota Access Pipeline. “As corporate greed continues to fuel dirty energy projects on our land, it is heartening to see that some banks recognize the imminent harm to our people posed by DAPL, and are taking actions accordingly,” said Dave Archambault, Chairman of the Standing Rock Sioux Tribe. “We appreciate BNP Paribas, ING and DNB leadership and their advanced understanding and respect of tribal sovereignty and Indigenous Peoples’ rights.”

May 10, 2017
The local South Dakota outlet Aberdeen News reports that a leak occurred in the not-yet completed Dakota Access pipeline on April 6. “Our lawsuit challenging this dangerous project is ongoing, and it’s more important than ever for the court to step in and halt additional accidents before they happen—not just for the Standing Rock Sioux Tribe and our resources, but for the 17 million people whose drinking water is at risk,” said Standing Rock Sioux Tribe Chairman Dave Archambault II.

June 14, 2017
The Standing Rock Sioux Tribe wins a significant victory, when Judge James Boasberg rules that the federal permits authorizing the pipeline to cross the Missouri River just upstream of the Standing Rock reservation, which were hastily issued by the Trump administration just days after the inauguration, violated the law in certain critical respects. The Court did not determine whether pipeline operations should be shut off, requesting additional briefing on the subject and a status conference for the following week. Read the court opinion.

http://earthjustice.org/features/faq-standing-rock-litigation?crm
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AGelbert

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What is the Actual Hidden Agenda of the Radical Right? (w/Guest Nancy MacLean)


June 15, 2017

Thom speaks with guest Professor Nancy MacLean (William Chafe Professor of History & Public Policy - Duke University, Author - Democracy In Chains: The Deep History of the Radical Right's Stealth Plan for America) about the true motives behind what the right supports in terms of policy and public perception. (Pt 1/2)



Thom speaks with guest Professor Nancy MacLean (William Chafe Professor of History & Public Policy - Duke University, Author - Democracy In Chains: The Deep History of the Radical Right's Stealth Plan for America) about the true motives behind what the right supports in terms of policy and public perception. (Pt 2/2)


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AGelbert

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Tanker Dumping Ballast Polluted Water with BMS (Ballast Management System). BMS is a fig leaf for in-your-face ocean pollution for fossil fuel profits.

The Booming Texas Port at the Center of U.S. Oil Exports

June 26, 2017 by Bloomberg

SNIPPET:

Last quarter, ships carrying about 22 million barrels destined for foreign countries left Corpus, government data show. That was almost 30 percent of the country’s total exports.

Daily export capacity could grow to 2.8 million barrels from 960,000 now, according to port officials. Houston, the second-biggest crude exporting hub, can ship 1.7 million barrels a day, said New York-based Timm Schneider, senior managing director for financial consultant Evercore ISI.

Right now, most of the ships handling crude in the port are Aframax carriers that hold about 600,000 barrels of crude. Once the dredging project is complete, Corpus Christi would be able to handle Suezmax tankers that load about 1 million barrels. The VLCCs like Anne hold as much as 2 million barrels, so they remain too big for the channel.

But producers are looking toward a day when the port can handle those big tankers, too.

http://gcaptain.com/booming-texas-port-center-us-oil-exports/

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AGelbert

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Tillerson is as bad a Secretary of State as you’d expect the CEO of Exxon Mobil to be

State Dept. science adviser quits amid fears the Trump administration is ruining the agency for ‘decades to come.
Snippet:

Tillerson’s blindness to the growing risk to oil prices from climate change is no surprise given that, during his time at the company, ExxonMobil became a leading purveyor and funder of climate disinformation.

Full article:

https://thinkprogress.org/tillerson-is-as-bad-a-secretary-of-state-as-youd-expect-the-ceo-of-exxon-mobil-to-be-a150206a3b0c




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AGelbert

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Denier Roundup
Regulatory Resistance Ramps Up as Red/Blue Team Regulation Emerges

As we pull our hair out about the ridiculous red/blue team effort Scott “Hi Hungry, I’m Dad” Pruitt has begun, the legal types have begun strategizing. That was the thrust of Maria Hegstad’s InsideEPA story yesterday, which highlights a little-known (but soon to be important) law regulating administrative advisory panels. 

The Federal Advisory Committee Act (FACA) provides guidance on how advisory panels are staffed and operated. Pruitt’s desire to stack boards with industry voices    and put on a red/blue team dog and pony show will have to be very carefully arranged if he hopes to avoid legal challenge. FACA stipulates that advisory panels must not be “inappropriately influenced” by either the political leadership (in this case, Pruitt) or special interests (Pruitt’s fossil fuel friends).

Unfortunately, the law is hard to enforce, in part because litigants would have to prove that they’ve been injured by the decisions made. That’s why there is little precedent to gauge whether or not this will really be an effective avenue of resistance. But it is something to keep an eye on.

There is no doubt that this law requiring honest and impartial advisory panels will be unwelcome news for Pruitt. (We assume this law is news to him anyway. After all, if he truly believed the advisory boards were inappropriately biased before he joined the EPA, why didn’t he ever sue over it? With his failing record for suing the EPA, it’s not like he’s opposed to losing lawsuits.)

Also unlikely to please Pruitt, if he finds out, is the release of a guide for how the public can resist Trump’s de-regulatory agenda. Produced by a volunteer group of former EPA employees organized as SaveEPA, the PDF walks readers through why Trump’s anti-regulatory talking points are false, how regulations are written, how the public can participate in the process, what they can do outside the official process and gives resources for tracking regulations and the Federal Register.

So Pruitt , you better have your ducks in a row when you set up your sham of a climate debate and try and stock advisory panels with industry shills. Climate advocates are watching, and unless you are really looking forward to defending the EPA in court instead of suing it like you’re used to, you better be real FACA’n careful.

https://insideepaclimate.com/daily-news/pruitt-faces-faca-rules-bid-climate-debate-advisory-panel-reforms     
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LOCAL GOVERNMENTS IN CALIFORNIA FILE COMMON LAW CLAIMS AGAINST  LARGEST FOSSIL FUEL COMPANIES

Posted on July 18th, 2017 by Romany Webb
     
By Michael Burger

Yesterday, three local governments in California (San Mateo County, Marin County and the City of Imperial Beach) filed potentially groundbreaking climate change lawsuits in California state courts, each one charging a group of 20 fossil fuel companies with liability for public nuisance, failure to warn, design defect, private nuisance, negligence, and trespass. (The complaints will be available in an updated version of this post as soon as we have them available.) This type of state common law climate litigation has been a long time coming, and these cases may well represent the first of a slew of similar cases nationwide. Here, I summarize several interesting aspects of the complaints, and offer some first blush thoughts on both the legal hurdles they might face and the potential outcomes they might produce.


The Lawsuits

Each of the complaints presents the same simple, compelling storyline: These fossil fuel companies knew. They knew that climate change was happening, that fossil fuel production and use was causing it, and that continued fossil fuel production and use would only make it worse. They knew this, but they hid it. And then they lied about it, and paid other people to lie about it for them. All the while they profited from it, and plotted to profit more. Ultimately, their actions caused sea levels to rise, and thereby caused harm, are continuing to cause harm, and are contributing to future harm to the plaintiff governments and their residents. Accordingly, the complaints claim that the defendant companies should be held liable and forced to pay, both for the costs the local governments are incurring to adapt to sea level rise and for the companies’ own willful, deceptive, and malicious behavior.

The named defendants include Chevron, ExxonMobil, BP, Shell, Citgo, ConocoPhillips, Phillips 66, Peabody Energy, Total, Eni, Arch Coal, Rio Tinto, Statoil, Anadarko, Occidental, Repsol, Marathon, Hess, Devon, Encana, Apache, and unspecified “Company Does.” According to the plaintiffs, these companies are responsible for about 20% of global greenhouse gas (GHG) emissions that were emitted during the period from 1965 to 2015, an amount which the complaints argue is a “substantial portion” of the climate change problem. The “substantial portion” claim is legally significant.

To show that the defendants are liable, the plaintiffs must demonstrate that they caused the alleged harms. Climate change, of course, is caused by many different actors; sea level rise and resulting impacts are attributable to climate change and, in some instances, other factors. Thus, it may be argued that the defendants are not the only parties who can or should bear responsibility, or blame. However, as a matter of law, causation can be shown by proving that the defendants are a “substantial factor,” or that they contributed significantly to the harm. Relying on a cumulative carbon analysis, plaintiffs make a strong case that that standard is met.

The timeframe plaintiffs employ for the cumulative carbon analysis is an important one, for both its legal and narrative impact. In rough terms, it corresponds with what Will Steffen calls the “Great Acceleration,” the years since the 1960s in which approximately 75% of all historic industrial emissions have occurred, and in which the rate of fossil fuel production and consumption has significantly increased. The specific years also mark notable bookends in climate change history. In 1965 President Lyndon B. Johnson’s Scientific Advisory Committee Panel on Environmental Pollution reported that unabated CO2 emissions would, by 2000, alter the climate, and Johnson charged Congress to address the problem. In 2015 the Intergovernmental Panel on Climate Change had just issued its Fifth Assessment Report, relaying the state of the art in climate science and understanding, and the global community signed the Paris Agreement to the United Nations Framework Convention on Climate Change.

The plaintiffs recite an increasingly well-documented, and familiar, timeline regarding what the fossil fuel companies knew and understood about climate change, and what they said and did (or did not do) about it. Several aspects of the story jumped out to me:

In 1980, Imperial Oil (a Canadian company in which Exxon owns a super-majority stake), reported to Exxon and Esso that power plant carbon capture technology was technologically feasible, but that it would “double the cost of power generation.” (Carbon capture is not yet deployed at scale in the power sector.)
Some fossil fuel exploration and production companies started climate proofing their own infrastructure around 20 years ago. They started investing in Arctic development capacity even further back, likely in anticipation of new exploration and production opportunities in a melting region.

In 1988, industry fundamentally shifted its stance towards climate change, turning away from independent research and outward statements favoring action, and turning towards the strategies and tactics documented in Erik Conway and Naomi Oreskes’ Merchants of Doubt, further revealed through reporting by the Energy and Environmental Reporting Project at Columbia University, and the ongoing subject of investigations by New York State Attorney General Eric Schneiderman and others. That year, according to the complaint, the political will to take on the climate change challenge was becoming increasingly evident. The insinuation one draws is that once industry sensed the real possibility of a commitment to international cooperation and domestic regulation it began to mount its overt and covert defenses.

Current EPA Administrator Scott Pruitt was an active participant in fossil fuel companies’ coordinated effort to resist climate change regulations.

According to the plaintiffs, the consequence of the cumulative emissions put into the market by defendants, and of the disinformation campaign waged by certain industry leaders and the think tanks, communications shops, and lobbying operations they funded and hired, are rising sea levels that have already impacted local governments and residents, and that will continue to do so, in ever more extreme ways, in the years to come. These impacts include inundation of public beaches and coastal property, and more frequent and extreme flooding and storm surge, resulting in some permanent property losses and requiring expenditure of funds for impact assessment, as well as adaptation and emergency response planning and implementation.

And so they have sued, seeking damages, both compensatory and punitive, under a range of common law theories that place blame on and assign responsibility to these defendants    because of their knowledge, their resistance to mitigation, and their various roles in fossil fuel exploration, production, marketing, and consumption.

The Legal Obstacles 

Scholars and practitioners have theorized this type of climate action for years. For example, in 2011, my colleague Michael Gerrard wrote this piece, surveying a host of issues such cases will inevitably encounter, and Doug Kysar of Yale early on wrote this piece on how climate change may itself influence the future shape of tort law. Tracy Hester at the University of Houston has written this analysis of the different elements of state common law climate cases. Thinking on this goes further back, to the state common law public nuisance claims included – but never decided – in Connecticut v. American Electric Power.

Importantly, these cases have been filed at a particular moment in time, when scientific consensus on and understanding of climate change is at an all-time high but the federal government’s commitment to addressing the problem is at an all-time low. In fact, it’s in negative territory, with a president, an EPA administrator and an Interior secretary determined to ramp up fossil fuel production and consumption while doing nothing to mitigate emissions or adapt to impacts. And the fossil fuel industry’s active role in fighting against climate action continues to come to light, making comparisons to the tobacco litigation (like this one) increasingly accurate.


Without detracting from the many other legal issues likely to arise in the lawsuits, here are three that come immediately to mind.

Standing: The first issue that tends to come up in thinking about climate change litigation is standing. Standing is a threshold issue in any challenge to government action, or inaction, in the climate change arena. But these are common law tort claims. The elements of standing – injury, causation, redressability – constitute the merits of the case. Were plaintiffs harmed in a tortious manner? Did defendants cause that harm? Are plaintiffs entitled to damages? That’s the whole case, not a preliminary matter to determine jurisdiction. Accordingly, it seems that a standing challenge should not, in theory, succeed; at least, not before the merits of the case are determined. Nonetheless, standing was an issue in Connecticut v. AEP, where the Supreme Court was asked to rule on whether a federal common law public nuisance claim could proceed. In her opinion finding the federal nuisance claim displaced by the federal Clean Air Act, Justice Ginsburg noted that “[f]our members of the Court would hold that at least some plaintiffs have Article III standing.” Justice Sotomayor did not participate in that decision, meaning that Justice Kennedy voted to uphold his own opinion from Massachusetts v. EPA, which found states had standing to sue due to injuries they suffered from climate change. Thus, at the moment, there are likely at least five votes for the broad proposition that states have standing to sue for climate change. The opinion in Mass. v. EPA, however, relied on the “special solicitude” owed states due to their quasi-sovereign status. Here, plaintiffs are local governments, which may or may not be given a similar weighting by Justice Kennedy and others.

Political Question: In Connecticut v. AEP, the federal district court originally found that there were no judicially manageable standards by which to adjudicate a public nuisance claim brought by states, cities, national environmental organizations, and three private land trusts against five power companies, and that the cases raised a political question necessarily left for the political branches. The Second Circuit reversed this judgment, finding that courts have long adjudicated complex environmental nuisance cases, and that the political question doctrine did not pose a bar. The Supreme Court’s view of the matter is a little obscure. Justice Ginsburg noted that “at least four judges” found that neither standing nor any other “threshold obstacle bars review.” The infamous footnote 6 in that opinion refers to the political question doctrine, but neither it nor the text offers an explanation of exactly how the justices voted on the matter. All of which leaves the political question issue unresolved.

The 9th Circuit, in Native Village of Kivalina v. ExxonMobil Corp., another federal common law nuisance case, did not directly address the political question doctrine, relying instead on the displacement analysis from Connecticut v. AEP. In Comer v. Murphy Oil, a Fifth Circuit panel found that the political question doctrine did not bar state tort claims brought against several companies for their contributions to climate change. However, that decision was later vacated in a uniquely bizarre procedural sequence.

The facts of this case, however, are different. Plaintiffs have framed their case not about climate change policy in the abstract, and not only about a specific quantity of emissions contributing to climate change, but also about these private actors’ individual and collective conduct, which includes not only producing GHG emissions but interacting with the market and with regulators in a sustained disinformation campaign. Plaintiffs are not seeking to establish a specific policy in regards to GHG emissions, public lands management, or other matters of federal agency discretion. Rather, they are seeking damages for harms caused by market behavior they claim was, among other things, knowing, negligent, and intentionally misleading.

Preemption: In Connecticut v. AEP, the Supreme Court found that a public nuisance case brought in federal court under federal common law had been displaced by the Clean Air Act. Because the Court had previously held in Mass v. EPA that EPA was authorized to regulate GHGs by the federal legislation, there was no longer room for federal common law. However, the court did not reach the state common law claims also plead in that case. It remains an open question whether state claims such as those plead here are preempted by federal legislation, including the Clean Air Act, the Mineral Leasing Act, the Outer Continental Shelf Lands Act, and other statutes setting federal GHG emissions and fossil fuel extraction, transportation, and consumption policy. In Comer, the original Fifth Circuit panel concluded that federal preemption was inapplicable to plaintiffs state common law claims; but, as noted, that decision was vacated and has no precedential value. Its reasoning, of course, nonetheless bears consideration.

One preemption case that defendants may seek to invoke is the Fourth Circuit decision in North Carolina v. Tennessee Valley Authority (TVA). There, the U.S. Court of Appeals for the Fourth Circuit dismissed a common law nuisance action brought by the state of North Carolina against TVA. The action focused on emissions from TVA-operated power plants in Alabama and Tennessee, which were alleged to cause air pollution and associated health problems in North Carolina. Even if this were the case, however, TVA would not be liable for public nuisance according to the Fourth Circuit. In reaching this decision, the Fourth Circuit noted that “[c]ourts have traditionally been reluctant to enjoin as a public nuisance activities which have been considered and specifically authorized by the government,” such as under the Clean Air Act. The Fourth Circuit reasoned that “TVA’s plants cannot logically be public nuisances where TVA is in compliance” with the Clean Air Act, and its plants have been permitted by the states in which they operate. Defendants will likely cite to this case to argue that federally permitted activities cannot be the subject of nuisance suits.

Assuming arguendo that North Carolina v. TVA was rightly decided (and there are arguments to be made that it was not  ), there is at least one key distinction between it and these newly filed cases – the facilities in that case were specifically permitted to pollute under the standards set through the Clean Air Act, and the permits in question authorized the pollution in question. Here, by contrast, none of the federal programs through which defendants have operated, and none of the foreign governments that have permitted them to operate in other jurisdictions, have thoroughly considered, far less sought to regulate, the downstream GHG emissions associated with their activities. What’s more, given the Trump Administration’s outright resistance to using the federal statutes to regulate GHGs at any stage there can be no conflict between state law and federal law, and state law cannot be said to be an obstacle to achieving any particular federal goals. Defendants might argue that state common law liability would conflict with the Trump Administration’s decision to not protect public health and welfare, or to pursue “energy dominance,” or some other such thing, but we have to hope that that line of reasoning will not find sympathetic audiences in court.

Possible Outcomes

As with the case of Juliana v. United States, currently winding its way towards a trial date next year, these cases face significant legal hurdles. Success on the merits is far from assured. But it could happen. The facts are there, making the case for causation and culpability, and the law can accommodate these claims. What’s more, if other cases in other jurisdictions are brought, we may ultimately see a large-scale settlement similar to the Tobacco Master Settlement Agreement, or perhaps establishment of a fund through federal legislation, along the lines of the Superfund program established under CERCLA.

However, and again as with Juliana, there are also potential outcomes short of success on the merits that could still advance the ball on climate change. For one thing, these cases represent a new pressure point on the fossil fuel industry, and a new spotlight on that industry’s engagement with climate law and policy. They make the case that these companies are bad actors, who have lied for years to continue to generate profits at the expense of the local governments and individual citizens and residents who bear the costs of climate impacts. The drama of the courtroom setting could mobilize the public’s interest and give life to local activism on these issues, much as Juliana has captured the youth climate movement and given it voice. Moreover, the prospect of judicial judgment affirming plaintiffs’ case might nudge these companies to accelerate their own transition away from past practices, towards new approaches to providing energy to consumers.

http://blogs.law.columbia.edu/climatechange/2017/07/18/local-governments-in-california-file-common-law-claims-against-largest-fossil-fuel-companies/

Agelbert NOTE: This WILL go all the way to the supremely Supine Supreme Court BECAUSE Big Oil OWNS them.

BUT, Big Oil will LOSE the war, even as they "win" this battle with the help of their fascist judge pals.

WHY? Because every day that Big Oil doesn't bite the bullet and accept their responsibility for all this pollution is another day that Catastrophic  Climate Change paints them as a bad actor. They can't PR their way around the floods, droughts, storms, heat waves, melting ice, etc., though that is the way they have ALWAYS danced around this, even while they planned, ALL ALONG, to pass the buck of the Catastrophic climate change costs to we-the-people, as they did in (on a much smaller scale, but it is still horrendous Stare decisis - Case Law precedent - that favors the polluters - See: Damages for "Important" corporations like Exxon "cannot be punitive" because that would "hurt" the economy...) the Exxon Valdez damages reduction by the Supreme Court to ONE TENTH the original amount that was ruled.

SNIPPET:

Quote

"Crime pays, and environmental crime pays really well," said William Rodgers, a professor of law at the University of Washington and an expert on the Exxon Valdez case. "I am sure they [Exxon] are sitting down and having a toast of the town.     
The other lesson they have taught is scorched-earth litigation pays. Just keep litigating, making up issues."

Full article:




Leges         Sine    Moribus     Vanae   
Faith,
if it has not works, is dead, being alone.

AGelbert

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    • Agelbert Truth AND Consequences
Congress’ biggest climate denier visited the Arctic.

Congressman Lamar Smith of Texas

What happened next will disappoint you.

Earlier this month, BuzzFeed News reported that Congressman Lamar Smith of Texas—perhaps the most relentless critic of mainstream climate science on Capitol Hill, aside from Senator Jim Inhofe—went to the Arctic to meet with climate scientists. He didn’t publicize the trip on social media or his website, and scientists who met with him “were instructed not to talk about” what happened. Smith, who was joined by some of his colleagues on the House Science Committee, also cancelled an interview about the trip at the last minute.

The secrecy led some to express hope that Smith would change his tune on climate science. Alas, Smith penned a column in the Daily Signal on Monday titled:

 “Don’t Believe the Hysteria Over Carbon Dioxide”:       

Quote
The benefits   of a changing climate are often ignored and under-researched. Our climate is too complex and the consequences of misguided policies too harsh to discount the positive effects of carbon enrichment.

Quote
A higher concentration of carbon dioxide in our atmosphere would aid photosynthesis, which in turn contributes to increased plant growth. This correlates to a greater volume of food production and better quality food. Studies indicate that crops would utilize water more efficiently, requiring less water. And colder areas along the farm belt will experience longer growing seasons.


Smith  is still relying on tired, well-debunked tropes. The “CO2 is plant food” argument is overly simplistic; as the website Skeptical Science notes, plants don’t live on CO2 alone—they need water. And contrary to Smith’s claims, plants absorbing more CO2 need extra water, “both to maintain their larger growth as well as to compensate for greater moisture evaporation as the heat increases.” What’s more, climate change will increase deserts and other dry lands—not great for crop production or plants that need more water. Indeed, the vast majority of studies show climate change is a threat to global food security, not the other way around.

This is to say nothing of the fact that the excess carbon dioxide in the Earth’s atmosphere, which is caused by humans, is the main reason for global warming. But such arguments won’t change Smith’s mind. Honestly, if a week-long trip to the Arctic doesn’t do it, nothing will.

https://newrepublic.com/minutes/144011/congress-biggest-climate-denier-visited-arctic-happened-next-will-disappoint-you

Agelbert NOTE: I am certain that the ONLY reason this fossil fuel fascist front man Lamar Smith visited the arctic is to figure out how soon Big Oil can count on it being ice free for more profit over planet piggery. These Dirty Energy Worshiping Dinosaurs will only learn when it is too late (see below).

Tomorrow is Yesterday...

Leges         Sine    Moribus     Vanae   
Faith,
if it has not works, is dead, being alone.

 

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