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By Michael Roche

            Three years ago the documentary Blackfish was released to the applauds of the animal rights movement but much to the dismay of SeaWorld™ investors and employees alike. Many of the marine biologists employed by the entertainment goliath were asked to publicly comment on reports of widespread mistreatment, abuse and outright inhumane treatment of the company’s main attraction. In the months following the documentary’s release, the net income of the SeaWorld Corporation plummeted 84% from second quarter 2014 to second quarter 2015.[1]
To add insult to injury, SeaWorld’s dastardly actions were not confined to its parks or to its captive marine life. SeaWorld’s public image was once again under a microscope after allegations surfaced alleging SeaWorld executives ordered employees to follow and spy on members PETA (People for the Ethical Treatment of Animals). Without much comment, SeaWorld’s CEO confirmed the allegations as true simply stating that their corporate policy towards animal activists has since changed.[2]
With profits down way down and with increased attention from investors and regulators alike, SeaWorld saw no other option then to embrace the decades-long calls for the ethical treatment of the orca whale and the other marine life featured in their shows. In November of 2015, SeaWorld announced its plans to phase out its main attractions, the orca shows, over the course of the next several years. The announcement was followed by a decision to discontinuing the orca breeding program in the spring of 2016 and SeaWorld’s stock price has since soared. However the calls by activist investors to replace the entire board are far from over.
Activist investor Greg Taxin, of Luma Asset Management, who controls about four percent SeaWorld outstanding stock, said the company has made the right choice by ending orca-whale breeding program. Still, Taxin has called for SeaWorld to replace all its board members as many investors and animal rights groups are still calling for a complete release of all captive marine life. Taxin wouldn’t say whether he had nominated replacements for any of the company’s 10 directors but we will find out soon enough at the company’s shareholder meeting later this summer. [3]
So what is actually behind SeaWorld’s recent changes?  Has SeaWorld finally seen the light and choosing to phase out their main attraction because of their social responsibility to do so? Or is this response driven by the same factor as everything else on Wall Street, increased profits? Chances are the slow but progressive response by SeaWorld is the result of a board of directors who know their number could be up if they do not recognize the social costs of their antiquated business plan.  At least for now it seems that SeaWorld is looking to rebrand its tarnished image and corporate social responsibility has won the day.


[1] http://time.com/3987998/seaworlds-profits-drop-84-after-blackfish-documentary/

[2] http://money.cnn.com/2016/02/25/news/companies/seaworld-peta-spying/

[3] http://www.orlandosentinel.com/business/tourism/os-seaworld-future-20160401-story.html

By: James Patrick Logan

On November 5, 2011, Sandra Ladra was in her home in Prague, Oklahoma, with her family when the walls and floor began to shake. A 5.0 magnitude earthquake had struck nearby, with aftershocks and subsequent earthquakes up to magnitude 5.6 (the Prague earthquake).[1]  The earthquake severely damaged several buildings, injured people, and buckled pavement.[2]  The Ladra’s were not spared. The earthquake caused serious fractures in their home’s two-story chimney. As the chimney broke apart, large chunks of rock fell to the floor. The falling rock struck Ladra’s legs, seriously injuring her lower body. She needed immediate medical treatment, and now claims personal injury damages exceeding $75,000.

Ladra filed the suit in the District Court of Lincoln County. In her action, Ladra claimed that hydraulic fracturing and the use of injection wells caused the earthquake that resulted in her injuries. She claimed that the  New Dominion, LLC, Spess Oil Company, and various John Doe defendants were liable for her injuries because their operation of injection wells was the proximate cause of her injuries.

On October 16, 2014, the District Court dismissed the case, stating that exclusive jurisdiction on matter concerning oil and gas operations belonged not to trial courts, but to the Oklahoma Corporation Commission (a state regulatory agency). Ladra filed a Petition in Error with the Supreme Court of Oklahoma, seeking review of the District Court’s order. The Supreme Court of Oklahoma proceeded to overrule the lower court, holding that jurisdiction over an action to recover damages from anthropogenic earthquakes belongs in a district court.[3]  This was the first case of its kind, with Oklahoma’s Supreme Court being the first higher court of any state to implicitly grant that an action to recover damages from a human-caused earthquake may proceed. This case of first impression will undoubtedly pave the way for future actions in states of high fracking and seismic activity. However, there remains the question, can a tort claim against natural gas companies for purportedly anthropogenically caused earthquakes succeed?

The only potential enlightenment on this issue comes from a few previous, albeit distantly related, cases. For example, in Hiser v. XTO Energy, a jury initially ruled in favor of a plaintiff seeking damages for, among other things, damaging “vibrations” to her home.[4]  However, this ruling was later overturned because the jury had used outside information relating to fracking to come to their verdict (fracking had not been mentioned in the case, itself, and was not strictly at issue).[5]  Other fracking-related cases typically allege contamination of water supply, nuisance claims, and land use violations, but not damage from earthquakes.[6]  Given the lack of direction from other courts on how to handle this case, the decision in Ladra v. New Dominion, LLC, will a novel one.

Fracking and Earthquakes in Oklahoma

Though the state is not as well known for its natural gas deposits as are Pennsylvania with the Marcellus Shale and Texas with the Barnett Shale, Oklahoma contains numerous shale formations that yield substantial quantities of natural gas.[7]  In fact, the first instances of massive hydraulic fracturing in the United States occurred in southern Oklahoma in 1968.[8]

The primary means of extracting natural gas from these shale formations is the unconventional drilling method of hydraulic fracturing. Fracking consists of drilling a wellbore vertically down into a rock formation, then turning and drilling horizontally through the rock.[9]  The wellbore is then filled with a pressurized liquid that creates, or expands existing, fissures within the rock to release natural gas, which is then recovered for use as an energy resource.[10]  Massive amounts of wastewater are leftover from the fracking process,[11] often containing salts, chemicals, heavy metals, and radioactive material.[12]  Though some of this wastewater can be reused, much of it must be disposed of, and injecting the waste back into rock formations deep underground is often the primary means of said disposal.[13]

The precise relationship between fracking activities and earthquakes is unresolved, and explanations remain theoretical, but numerous geologists contend that added pore pressure from the injected water, in conjunction with rock fracturing caused by that water, can “reduce forces acting to keep faults locked and trigger [earthquakes].”[14]

Currently, three formations form the basis for the fracking industry in Oklahoma: the Anadarko, Granite Walsh, and Woodford.[15]  Combined, these lie beneath the majority of the state of Oklahoma, subjecting much of the state to natural gas exploration in the last decade or so.[16]  As a result, large parts of the state, once considered geologically stable,[17] now experience far more, and far stronger, earthquakes than they have in the past.[18]

 

Legal Issues

In her claim, Ladra filed two counts against the defendant hydraulic fracturing companies. The first is one of absolute liability, wherein she states:

Defendants’ actions described above are ultra-hazardous activities that necessarily involve a risk of serious harm to a person that cannot be eliminated by the exercise of the utmost care and is not a matter of common usage. As a direct and proximate result of Defendants’ ultra-hazardous activities, plaintiff sustained personal injuries, to which Defendants are strictly liable.[19]

The second count is one of negligence:

The Defendants owed a duty to Plaintiff to use ordinary care and not to operate or maintain their injection wells in such a way as to cause or contribute to seismic activity. Defendants, experienced in these operations, were well aware of the connection between injection wells and seismic activity, and acted in disregard of these facts. As a direct and proximate result of these facts, omissions, and fault of the Defendants, the Plaintiff suffered injuries reasonably foreseeable to the Defendants.[20]

Courts typically have not held that fracking is an ultra-hazardous activity such that absolute liability would apply, especially with regard to its supposed potential to induce earthquakes. Furthermore, there is little to no guidance on whether a company may be held negligent for injecting fluids in such a manner as to cause earthquakes. Accordingly, neither claim has a particularly high likelihood of success. However, the biggest question in each claim is whether the element of causation can be met.

The showing of a causal link between fracking and these earthquakes would be of particular significance for Oklahoma, as it has seen a greater increase in the incidence and magnitude of earthquakes in the last decade than any other state in the continental U.S.[21]  Though there is not yet a complete consensus within the scientific community, with the publication of numerous new studies over the last several years, there is a prevalent and growing belief that fracking and earthquakes are indeed related.[22]

Earthquakes are typically caused by the shifting of Earth’s tectonic plates, specifically when the forces on either side of a fault (a planar fracture in the rock comprising the earth’s surface) grow too large and cause the land on either side of the fault to “slip,” or slide along or past each other.[23]  In addition to this natural phenomenon, earthquakes can also be caused by human activity, such as the retaining of massive amounts of water in dams, mining coal, drilling for oil, and, perhaps, operating fracking rigs and injection wells.[24]  Thus, while earthquakes were previously thought of solely as acts of God, a greater increase in the understanding of their causes over the last several decades has revealed that that is not always the case.[25]

A 2014 study, based in part on the Prague earthquake, links four of Oklahoma’s most prolific injection wells to a cluster of 2,547 small earthquakes.[26]  The scientists who authored the paper state that the increase in Oklahoman earthquakes is due to the disturbance to rock formations caused by fracking and the disposal of wastewater in injection wells. And while previous studies have failed to account for the much larger magnitude earthquakes that have occurred in recent years (early models predicted fracking-induced earthquakes would not exceed a magnitude of 2.0),[27] this study provides an explanation for how fracking results in damaging earthquakes of significant magnitude:

We view the expanding Jones earthquake swarm as a response to regionally increased pore pressure from fluids primarily injected at the SE OKC wells. As the pressure perturbation expanded and encountered faults at various orientations, critically stressed, optimally oriented faults are expected to rupture first. Additional faults at near-optimal orientations may rupture after further pressure increase. As fluid pressure continues to propagate away from the wells and disturbs a larger and larger volume, the probability increases that fluid pressure will encounter a larger fault and induce a larger-magnitude earthquake.[28]

 

In laymen’s terms, the added stress and fissures caused by the injection of wastewater into these wells increases the pressure of the liquid in the rock formation. This, in turn, lubricates nearby faults in the rock, making them more likely to succumb to tectonic stress and slip. As fluid pressure in the rock continues to build and these minor slips propagate away from the original injection site, they are more likely to encounter and weaken a larger fault and contribute to a much greater slip. That slip releases potential energy stored on either side of the fault and produces a significant, and greater than expected, earthquake.[29]

The study not only accounts for the unexpected increase in the magnitude of earthquakes, but also explains the increase in frequency in some areas but not others:

[T]he steep rise in earthquakes in Oklahoma, USA, is likely caused by fluid migration from wastewater disposal wells. Twenty percent of the earthquakes in the central United States could be attributed to just four of the wells. Injected fluids in high-volume wells triggered earthquakes over 30 km away…. The absence of earthquakes in regions above the critical pressure threshold may result from either a lack of faults or lack of well-oriented, critically stressed faults.[30]

 

The above study is only a sampling of the increased understanding of how fracking and seismicity interact, a connection that has been theorized for decades, but only recently supported with intense modeling based on detailed datasets rather than just demonstrations of correlations between earthquakes and certain activities.[31]  As science progresses, understanding of this relationship will only increase.

Conclusion

            There remain many questions surrounding the Ladra case and earthquake-related torts as a whole. Is fracking/wastewater injection abnormally dangerous? Could these earthquakes affect the vulnerability of groundwater drinking water supplies? Can defendants survive personal injury claims by asserting that the tectonic alignment itself is an Act of God, by claiming that there is no proof that any individual well caused the damage, or by arguing that the causal chain is too far stretched- a la Palsgraff? Perhaps, but the fact remains that fracking and wastewater disposal are both massive aspects of America’s energy scheme, and it seems that seismic activity and the actions of injection well operators are indeed related. Depending on the outcome of Ladra and an increasing understanding of the science of induced seismicity, natural gas companies may soon find themselves liable to entire towns struck by earthquakes. Even if Ladra does not succeed in her claim, the floodgate to similar claims has likely been opened, and this case will surely shake up the industry.


[1] See Magnitude 5.6 – Oklahoma: Earthquake Summary, USGS (Nov. 6, 2011), http://earthquake.usgs.gov/earthquakes/eqinthenews/2011/usb0006klz/index.php#summary (providing additional information on the earthquake central to this case. The discrepancy between magnitudes provided is due to the relative strength of the earthquake at difference distances from its epicenter, as well as whether the reported measurement is of an aftershock or the initial earthquake. All measured seismic events exceed 4.8, however.).

[2] Id.

[3] Ladra v. New Dominion, LLC, 353 P.3d 529, 532 (Okla. 2015)

[4] Hiser v. XTO Energy, 2013 U.S. Dist. WL 5467186, at *3 (E.D. Ark. 2013).

[5] Id. at 19-28.

[6] See Boone & Robinson, supra note 37, at 74-75.

[7] Alex Prud’homme, Hydrofracking 41 (2013).

[8] Carl T. Montgomery & Michael B. Smith, Hydraulic Fracturing: History of an Enduring Technology, 12 J. Petroleum Tech. 26-41 (2012).

[9] Department of Energy Office of Fossil Energy and National Energy Technology Laboratory, Official Report: Modern Shale Gas Development in the United States 56-66 (2012).

[10] Id.

[11] Class II Oil and Gas Related Injection Wells, EPA, http://www.epa.gov/uic/class-ii-oil-and-gas-related-injection-wells (last updated Oct. 8, 2015) (an estimated 2 billion gallons of such wastewater are injected in the United States every day, mostly in Texas, California, Oklahoma, and Kansas). Much of this water is not solely leftover from liquid that was actually injected. Rather, a large amount of this leftover wastewater was already underground and is retrieved along with oil and natural gas. The product is then “dewatered” and captured, leaving as much as nine times as much residual water left over, which is then disposed of via injection wells. Rivka Galchen, Weather Underground: The Arrival of Man-Made Earthquakes, New Yorker, Apr. 13, 2015, http://www.newyorker.com/magazine/2015/04/13/weather-underground.

[12] Valeria J. Brown, Radionuclides in Fracking Wastewater: Managing a Toxic Blend, 122 Envtl. Health Persp. A50, A50-A51 (2014); Rebecca Hammer & Jeanne Van Briesen,  In Fracking’s Wake: New Rules Are Needed to Protect Our Helath and Environment from Contaminated Wastewater 23 (NRDC, 2012).

[13] Kelly O. Maloney & David A. Yoxtheimer, Production and Disposal of Waste Materials from Gas and Oil Extraction from the Marcellus Shale Play in Pennsylvania, 14 Envtl. Prac. 278, 278 (2012).

[14] Eric Hand, Injection Wells Blamed in Oklahoma Earthquakes, 345 Science 13 (2014).

[15] Prud’homme, supra note 6, at 42-46.

[16] See Gas Production in Conventional Fields, Lower 48 States, Energy Information Administration (Apr. 8, 2009), http://www.eia.gov/oil_gas/rpd/conventional_gas.pdf.

[17] A. McGarr et al., Coping with Earthquakes Induced by Fluid Injection, 347 Science, 830, 830 (2015).

[18] Justin L. Rubinstein & Alireza Babaie Mahani, Myths and Facts on Wastewater Injection, Hydraulic Fracturing, Enhanced Oil Recovery, and Induced Seismicity, 86 Seismological Res. Letters 1060, 1061 (2015). Up until 2008, Oklahoma experienced roughly one to two earthquakes of magnitude 3.0 or greater each year. Galchen, supra note 10. That number increased dramatically over the next several years, with Oklahoma experiencing 890 such earthquakes in 2015. United States Geological Survey, USGS-NEIC ComCat & Okla. Geological Survey (2016), http://earthquake.usgs.gov/earthquakes/states/oklahoma/images/OklahomaEQsBarGraph.png.

[19] Petition for the Plaintiff at 5, Ladra v. New Dominion, LLC (Dist. Ct. Okla. 2014) (No. C3-2014-115).

[20] Id.

[21]  Richard A. Oppel & Michael Wines, Industry Blamed as Earthquakes Jolt Oklahoma, N.Y. Times, Apr. 4, 2015, at A1; William L. Ellsworth, Injection-Induced Earthquakes, 341 Science 6142 (2013) (showing the dramatic rise in seismicity in the past several years compared to historic rates).

[22] See, e.g., Austin Holland, Examination of Possibly Induced Seismicity from Hydraulic Fracturing in the Eola Field, Garvin County, Oklahoma (Oklahoma Geological Survey, 2011).

[23] See Earthquakes Overview, Pacific Northwest Seismic Network, http://pnsn.org/outreach/about-earthquakes (last visited Mar. 6th, 2016).

[24] See Pradeeo Talwani & Steve Acree, Pore Pressure Diffusion and the Mechanism of Reservoir-Induced Seismicity, 122 Pure and Applied Geophysics 947 (1984) (outlining the manner in which the storage of large amounts of water in reservoirs can induce earthquakes); see also S. K. Guha, Induced Earthquakes: Mining Induced Seismicity (Springer, 2000) (describing the effect that mineral mining can have on area seismicity); see also Mark D. Zobak & Jens C. Zinke, Production-Induced Normal Faulting in the Valhall and Ekofisk Oil Fields, The Mechanism of Induced Seismicity 403-20 (Cezar I. Trifu ed., 2002) (describing how more traditional oil drilling can induce seismic activity); see also Susan E. Hough & Morgan Page, A Century of Induced Earthquakes in Oklahoma?, 105 Bull. of the Seismological Soc’y of Am. 2863 (2015) (describing the relationship between fracking activity, particularly with respect to wastewater disposal in injection wells, and seismic activity).

[25] See 1 Am. Jur. 2d Act of God § 1 (2015).

[26] K. M. Keranen et al., Sharp Increase in Central Oklahoma Seismicity Since 2008 Induced by Massive Wastewater Injection, 345 Science 448 (2014).

[27] See F. Rall Walsh III & Mark D. Zoback, Oklahoma’s Recent Earthquakes and Saltwater Disposal, Sci. Advances 3 (June 18, 2015), http://advances.sciencemag.org/content/advances/1/5/e1500195.full.pdf.

[28] Keranen, et al., supra note 63, at 450-51.

[29] See generally William Ellsworth, Jessica Robertson, & Christopher Hook, Science Features: Man-Made Earthquakes Update, USGS (Jan. 17, 2014, 1:00 PM), http://www.usgs.gov/blogs/features/usgs_top_story/man-made-earthquakes/.

[30] Keranen, et al., supra note 63, at 448-50 (Editor’s abstract and text from article itself).

[31] See, e.g., K. M. Keranen, et al., Potentially Induced Earthquakes in Oklahoma, USA: Links Between Wastewater Injection and the 2011 Mw 5.7 Earthquake Sequence, Geology (Mar. 26, 2013), http://geology.gsapubs.org/content/early/2013/03/26/G34045.1.abstract; Danielle F. Summy, et al., Observations of Static Coulomb Stress Triggering of the November 2011 M5.7 Oklahoma Earthquake Sequence, 119 J. of Geophysical Res. 1904 (2014); D. E. McNamara, Efforts to Monitor and Characterize the Recent Increasing Seismicity in Central Oklahoma, 34 Geoscience World: The Leading Edge 628 (2015).

By: Alix Dobles

SECAs climate change risks arising from the energy sector have become a growing concern, and changing attitudes about climate change have led to more stringent regulations, state authorities and institutional investors have looked to the Securities and Exchange Commission to demand the disclosure of climate risk in companies’ securities filings.  The SEC has begun to ask companies to adequately address climate change risk in their disclosures, but many believe that the SEC has not done enough to inform investors and protect them from such risk.  As The New York Times put it, “[a]t a time of upside-down weather patterns, volatile energy markets and mounting climate-related regulatory action, [this] is simply not enough for many lawmakers and investors, who worry that companies’ reticence is costing shareholders.”[i]

As of 2010, the SEC has told companies that it expects the company to disclose risks posed by climate change in their regular securities filings.  However, the SEC has not issued a new rule, and instead has treated the requirement as “interpretive guidance” of existing disclosure requirements.[ii]  In its press release, the Commission stressed that the interpretation “did not create new legal requirements nor modify existing ones, but are intended to provide clarity and enhance consistency for public companies and their investors.”[iii]

Initially the SEC appeared to be serious about the interpretive guidance, and issued 49 comment letters to companies regarding the adequacy of their climate change disclosures in the first two years following the press release.[iv]  However, the SEC has been seriously under-reacting ever since, issuing only 3 letters in 2012 and even fewer in following years.[v]   It appears as though the SEC has let vague generalizations of climate risk disclosure suffice.  For example, Exxon noted in its filing that new laws may “reduce demand for hydrocarbons,” but did not address what the financial cost of these new laws may be for investors.[vi]

While this may be sufficient for the SEC, it is not sufficient for the New York Attorney General. In a settlement agreement signed in November 2015, Peabody Energy agreed that it would disclose in greater detail the financial risks it could face from climate change policies in its securities filings.[vii]  The agreement arose after a two-year investigation by the Attorney General found that Peabody had purposely withheld information in its SEC filings that the company’s value would continue to fall, due to more stringent regulations and a decrease in the demand for coal.[viii]  The Attorney General has also initiated an investigation of Exxon Mobil to determine whether it lied to investors about the risks of climate change and how such risks might hurt the oil business.[ix]

Possibly the biggest reason why oil, gas, and coal companies in particular are not disclosing sufficient climate risk information is because they are keenly aware of how this may affect their ability to obtain investments.  The general public is more conscious than ever of the threats associated with climate change, and large greenhouse gas emitters, such as oil, gas, and coal companies, are the first to be blamed.  Companies are worried that investors will not choose to invest in businesses that are so greatly affected by such a hot topic.  Customers and investors are already turning away from fossil fuels, even without companies sufficiently addressing them in their securities filings.

Another reason why these companies are not adequately disclosing climate risk is that the lack of a promulgated rule has made this new territory of disclosure fairly ambiguous.  The SEC’s interpretive guidance stresses the following four areas where climate change may trigger disclosure requirements: impact of legislation and regulation; impact of international accords; indirect consequences of regulation or business trends; and physical impacts of climate change.[x]  For example, a company may have an obligation to disclose if a pending regulation limiting greenhouse gas emissions could potentially increase its expenses, or if a trend of sustainable business practices in competing products could cause a decreased demand for goods.  However, the guidance lacks definitive wording, and much of what “may” need to be disclosed appears largely speculative.  A company will not disclose more than it needs to, and without definitive requirements, a company is not going to analyze and disclose a climate risk unless the SEC specifically asks for it.  Thus the SEC’s interpretive guidance falls short of the clarity and consistency that it purports is its very purpose.

To date, the SEC has not promulgated a rule regarding what climate-related risks a company is required to disclose, nor has the SEC hinted that it has any plans to do so.  However, the SEC has been reviewing what it may require to disclose, and has been accepting public comments on the matter.  Political pressure will only increase as stocks continue to respond to new limits and regulations on the energy sector, and the SEC may have no choice but to create a legal requirement of climate risk disclosure through the passing of a new rule, especially after its disregard for adequate climate risk disclosure was uncovered in the Peabody settlement.  The question is: How long will the SEC allow half-hearted climate risk disclosure to suffice?


[i] David Gelles, S.E.C. is Criticized for Lax Enforcement of Climate Risk Disclosure, N.Y. Times, Jan. 24, 2016, at BU7.

[ii] Press Release, SEC, SEC Issues Interpretive Guidance on Disclosure Related to Business or Legal Developments Regarding Climate Change (Jan. 27, 2010), https://www.sec.gov/news/press/2010/2010-15.htm.

[iii] Id.

[iv] Gelles, supra note 1.

[v] Id.

[vi] Id.

[vii] Clifford Krauss, Peabody Energy Agrees to Greater Disclosure of Financial Risks, N.Y. Times, Nov. 9, 2015, at B1.

[viii] Id.

[ix] Justin Gillis & Clifford Krauss, Exxon Mobil Investigated for Possible Climate Change Lies by New York Attorney General, N.Y. Times, Nov. 6, 2015, at A1.

[x] Press Release, SEC, supra note 2.

Summarized by David Powers

The Endangered Species Act establishes two categories of species at risk: endangered and threatened. The statute forbids private activity that harms any member of an endangered species (this is referred to as a “take”). Subsequently, regulations were enacted which expanded this protection to both endangered and threatened species. This article argues that Congress expressly limited the take provision to endangered species thus leaving private activity affecting threatened species unregulated. As a result, agencies which have promulgated regulations which prohibit the take of any threatened species have acted in contravention of the statute’s text and legislative history.

The author explores this point of view by providing a background of the Endangered Species Act and explains why relying on the statutory scheme would result in a fairer allocation of the costs necessary in protecting an affected species.

Summarized by David Powers

The Sami are a group of indigenous peoples who herd reindeer in Finland, Norway Sweden and Russia. The reindeer herding consists of yearly reindeer migration from summer pastures to winter pastures. Reindeer herding is largely considered the best land use in this area because it “represents a model for sustainable exploitation and management of vast barren circumpolar areas.”

The primary effects of climate change cause temperatures to move around freezing rather than remain solidly below freezing. The thawing and freezing has the effect of creating a layer of ice on top of the snow. While reindeer are able to dig through snow for food, they have trouble digging through a layer of ice. Because of this, sixty to seventy thousand reindeer starved in the winter of 2013-2014. In addition, the increase in temperature also includes the increased presence of deciduous trees and corresponding decrease of evergreen coniferous trees. This has caused more snow to reach the ground. The increased snow cover makes it more difficult for reindeer to move around and find food.

The increased temperatures also have secondary effects. As temperatures become warmer the home of the Sami become more accessible to outsiders, which leads to increased tourism and a need to build roads and railroads which affect the reindeer migration. In addition to increased tourism, it can also have the effect of increased logging, mining and wind energy installation. This essay examines wind energy in particular as a secondary effect on the reindeer herding and the corresponding rights of the indigenous people.

While further studies are required to determine the effect of wind energy installation on the reindeer population, there is substantial evidence that these installations have an adverse effect on female reindeer and their calves. Because of the position of the sun in the arctic, the shadows cast are extremely long and thus the rotors of the wind energy turbines throw very fast moving long shadows. The reindeer have been known to avoid these areas with the effect of losing several square miles of grazing for each wind turbine constructed.

The essay examines the Sami people’s various rights to continue their traditional way of life under various international laws. In doing so, the author also explores government’s responsibility and the associated political ramifications.

What’s the Buzz on Bees? —A Primer on Honeybee Die-off and Colony Collapse Disorder

Camila Acchiardo Vallejo

IMG_2452

Humans have a long-standing relationship with bees.  Honey gathering is depicted in cave paintings that date back to the Paleolithic Age. Ancient Egyptians floated honeybee hives on rafts down the Nile to transport them from one crop to another. While honeybees are not native to North America, they were deemed important enough that honeybees were taken across the Atlantic by Pilgrims around 1622. Since their import to North America, Honeybees have become a staple in American agriculture. However, in the past few years, the number of bees and other pollinators has been in severe decline, not only in the United States, but throughout the world. Since 2006, beekeepers all over the world have seen an annual loss of 30 to 90 percent of their honeybee colonies. [1] 

This massive die-off of honeybee hives is known as Colony Collapse Disorder (CCD).  CCD attacks what makes bees strong—their ability to organize socially. CCD makes bees slower, confused, unable to properly communicate with one another, and more susceptible to other diseases.[2]  The worrisome characteristic of CCD is that initially, it only impairs bees. If CCD outright killed bees, more hives might be able to survive CCD. Honeybee colonies are efficient powerhouses, they’re able to handle honeybee deaths; honeybee workers are redundant, and dead individuals can quickly be replaced in the colony. The problem is that the bees impaired by CCD force themselves to continue to work, so instead of being replaced by healthy bees, the impaired bees work slowly and inefficiently, which hinders the colony’s chance of survival.  These impaired bees eventually fly away and die away from their hive, which also decreases a colony’s chance of survival, as the colony is not aware that the bee is dead. At the tipping point, the colony becomes so impaired and dysfunctional that the colony has too few workers left to forage and care for the larvae and queen. Eventually, more bees die than are born, and the colony succumbs to CCD. A dead colony affected by CCD usually contains no adult bees or dead bee bodies; all that remains is a live queen and larvae.

Optimized-IMG_3464Now that CCD and honeybee decline is finally hitting mainstream news, many people are wondering: what’s the big deal? It’s only bees! Well, hypothetical uninformed person, the big deal is that bees are responsible for one out of every three bites of food eaten in the United States.[3]  Much of the food we take for granted—such as apples, almonds, onions, broccoli—and many other fruits, vegetables and nuts, would simply stop existing without honeybee pollination. In fact, bees are an agricultural commodity that has been valued at $15 billion annually in the U.S. alone.[4]

For years, researchers have been trying to find what causes CCD. Research pointed to the use of neonic pesticides (neonicotinoids), disease and parasites, poor nutrition, habitat change and habitat loss as the most likely causes of CCD. At one point, even cellphone signals and diesel fumes were once thought to affect bees’ health. A new study shows that there is actually no sole cause of CCD.[5] This new research shows that the massive die-off of honeybee hives is due to stress on bees, which can be caused by anything that stresses out a hive, including neonicotinoids, parasites, and poor nutrition.  This study found that, it’s the combination of stressors, especially neonicotinoids, which is causing CCD.[6] One stressor alone is not responsible for CCD, as previously thought. Once a hive hits a high level of stress—due to a combination of any possible stressors—the colony begins to fail and die off.

As a response to the declining pollinator population, both the U.S. government and concerned citizens are proposing several different measures to both increase pollinator populations and lower the use of neonicotinoids and other pesticides.  Some of the measures intended to address the decline in pollinators include President Obama’s “National Strategy to Promote the Health of Honey Bees and Other Pollinators,” and EPA’s newly issued guidance for assessing pesticide risks to bees. The judicial system has also involved itself in the fight for pollinators.  In September 2015, the Ninth Circuit vacated the EPA’s decision to unconditionally register sulfoxaflor, a neonicotinoid that would have hurt honeybee populations.[7] Industry has also taken note of the public interest in protecting pollinators, and many companies are stopping the sale of neonicotinoids or plants treated with neonicotinoids.

Optimized-IMG_3462So, what can we do to help the bees? Many farming and environmental groups are calling for a ban on neonicotinoids, which have been shown to cause neurological issues in insects and are highly addictive to bees (much like how nicotine—the base of neonicotinoid pesticides—is addictive to humans). Those wanting a ban point to the European Union, where a ban on neonicotinoids was put in place in 2013. But, as the new findings discussed above show, a ban on neonicotinoids is not the “magic” save-all solution to CCD. Since CCD is caused by the accumulation of stressors, more than a ban is required in order to increase bee populations; a combined response from industry, environmental groups and federal/state government tackling the multiple reasons why pollinator populations are declining is the only way to lessen worldwide pollinator decline.  Further research on neonicotinoids and parasites, limiting the use of neonicotinoids (especially while bees are pollinating a crop), and providing bees with more diversely flowered areas which to pollinate will provide a better and longer lasting solution for CCD than solely relying on a neonicotinoid ban.

 

Photos included in this blog are of wild bees collecting pollen from native Arizona flowers. Photos courtesy of Ricardo Valentin Acchiardo, used with photographer’s permission. Grazie mille! 


[1] Telisport W.  Putsavage, Bees Getting Stung: Law And Science Uncertain, Food At Risk, Law360 (July 17, 2015, 11:07 AM), http://www.law360.com/articles/679742/bees-getting-stung-law-and-science-uncertain-food-at-risk?article_related_content=1

[2] Gayathri Vaidyanathan, Stress Alone Can Lead to Bee Colony Collapse, Discovery News, (Oct. 7, 2013 5:48 AM), http://news.discovery.com/earth/stress-causes-bee-colony-collapse-131007.htm.

[3] National Park Serv.—U.S. Dep’t of the Interior, What is a pollinatorhttp://www.nps.gov/subjects/pollinators/what-is-a-pollinator.htm.

[4] Id.

[5] John Bryden et al., Chronic Sublethal Stress Causes Honeybee Colony Failure, 16 Ecology Letters 1463-69 (2013), http://onlinelibrary.wiley.com/doi/10.1111/ele.12188/epdf

[6] Id.

[7] Juan Carlos Rodriguez, EPA Approval of honeybee-Harming Pesticide Nixed By 9th Circ., Law360 (Sep.  10, 2015, 11:54 AM), http://www.law360.com/articles/701339?sidebar=true.  

– Sarah Main, Rules Committee Vice Chair

Almost as quickly as it had begun, the 28th annual Jeffrey G. Miller Pace National Environmental Law Moot Court Competition drew to an end. The morning began with the semifinal round of the competition, where nine teams argued for a chance to fill the three remaining slots in the afternoon’s last and final round.

The University of Houston Law Center, The University of Mississippi School of Law, and the University of Alabama School of Law (listed in no particular order) advanced to the final round, where they tried their arguments before a panel of prestigious judges:

-       The Honorable Mary Beth Ward, Judge for the Environmental Protection Agency’s Environmental Appeals Board (EAB).

-       The Honorable Malachy Mannion, Judge for the United States District Court, Middle District of Pennsylvania and Pace Law alum.

-       The Honorable Lynn Adelman, Judge for the United States District Court, Eastern District of Wisconsin.

-       The Honorable Steven Colloton, Judge for the United States Court of Appeals for the Eighth Circuit.

All teams exhibited the highest caliber oral advocacy skills and faced the judges’ difficult questioning with poise and confidence. Five months of grappling with the problem, studying the applicable case law, and practicing for the competition paid off for the top three teams. The final round judges deliberated for a while, returning to the Judicial Institute Lecture Hall noting the difficulty in choosing just one ultimate winner. Despite the close score-margin, the judges ultimately decided the winner of the 2016 NELMCC . . . The University of Mississippi School of Law, whose two-member team of John Juricich and Mary Margaret Roark are the reigning champions from last year’s competition! The Team also took home best brief for the environmentalists, Save Our Climate. John Juricich received the Best Oralist-Honorable Mention award at Friday’s awards ceremony.

The Storm King Mountain painting symbolizing the spirit of NELMCC will return to the walls of Ole Miss for another year. Special congratulations are extended to this year’s champions, as well as all finalists, and each of the over 50 teams that made this year’s NELMCC one of the most contentious competitions yet. More information about this year’s competition, including the names of all competing teams, the quarterfinal and semifinal round participants, and awards for best brief and best oralist can be found at: http://www.law.pace.edu/sites/default/files/NELMCC/2016_NELMCC_Winners.pdf. Another successful year of NELMCC is in the books!

 

 

– Sarah Main, Rules Committee Vice Chair

The second day of the 28th annual Jeffrey G. Miller Pace National Environmental Law Moot Court Competition proceeded with even more excitement than the first. All teams competed in the morning’s third and last preliminary round. After the round, the scores were compiled from all preliminary rounds to determine the top twenty-seven teams.

As teams anxiously awaited announcement of the quarterfinalists, professors and team coaches attended a professor’s luncheon and workshop on the “Promise and Peril of the Paris Agreement.” Competitors and Students from Pace were invited to attend a concurrent American Bar Association Section of Environment, Energy, and Resources (SEER) career panel on “How to become an Environmental, Energy, or Resource Lawyer.” Both panels received a great turnout from the Pace and visiting communities. Meanwhile, attorney-judges and lawyers from the region had the opportunity to attend an ethics CLE Program entitled “2016 Ethical Challenges for Environmental Lawyers.” The discussion focused on questionable ethical situations that often arise in representing environmental clients, particularly when a case involves expert scientific and engineering testimony. The esteemed panelists representing the public, private, and government sectors also contemplated hypothetical scenarios involving the ethical use of social media platforms.

Alas, the top twenty-seven teams were announced, and competitors were divided up into nine rooms. From each of the nine rooms, only one winning team emerged and advanced to the semi-final rounds held Saturday morning.

Tensions were high Friday evening as the twenty-seven teams again waited to see if they would advance. The top nine teams were announced, as well as best oralist and the best oralist honorable mention. The best oralist scores were based on the composite scores of the competitors in the preliminary rounds.

The top nine teams will return to Pace on Saturday morning to argue in the semi-final round. The three highest scoring teams advancing to the final round of the competition will be announced during lunch on Saturday. The final round is open to the public and will take place in the Judicial Institute Lecture Hall at 1:30 p.m. The evening’s award ceremony will reveal the 2016 NELMCC Champion and winner of a student monetary award that is being offered for the first time in NELMCC history to the competition’s winning team!

By Sarah Main, Rules Committee Vice Chair

Yesterday was the first day of the 28th annual Jeffrey G. Miller Pace National Environmental Law Moot Court Competition. The competition is hosted by Pace Law School every February, and attracts competitors from law schools around the country. When the competition began in 1989, only 22 teams competed. Today, NELMCC is the largest interschool moot court competition of any kind under one roof.

Over 50 teams arrived on campus to argue the case of Sylvanergy, LLC v. Shaney Granger and Save Our Climate, Inc., v. Shaney Granger. The consolidated petitions for review involve issues arising under the Clean Air Act; specifically, competitors argued whether a biomass-fueled facility is subject to Prevention of Significant Deterioration (PSD) review as an emitter of greenhouse gases, and whether consideration of a wood gasification and partial carbon capture and storage plant as Best Available Control Technology (BACT) for the Sylvanergy facility was properly rejected. Competitors also briefed and argued two jurisdictional issues.

The first day of three-day competition kicked off with a Welcome Ceremony, where Professor Jason Czarnezki, Executive Director of the Environmental Programs at Pace Law School, and Chair of the NELMCC Board, Ashley Stilson, welcomed competitors to the highly anticipated event.

After arguing in two preliminary rounds, awards were given for the best brief for each party and best brief in the competition. Due to the anonymity of the competition, team names will not be disclosed until the final awards ceremony on Saturday, February 20th. Awards were also given to Riverkeeper, commemorating its 50th Anniversary as New York’s clean water advocate protecting the New York City and Hudson Valley watersheds. Ann Powers, Associate Professor of Law Emerita, received an award for her longstanding involvement with, and impact on, the National Environmental Law Moot Court Competition. Professor and Co-Director of the Environmental Litigation Clinic at Pace Law School, Karl Coplan, was also awarded recognition for his authorship of the NELMCC problem, which he has done for numerous years, after taking over the role from Jeffrey G. Miller himself.

Competitors will return to Pace Saturday morning to compete in the final preliminary round before finding out if they will advance to the quarterfinals. Scoring in the preliminary rounds is based on a combination of brief scores and oral arguments scores. As competitors advance to the quarterfinal, semifinal, and final rounds, their scores are based solely on their oral advocacy performance. The final round of the competition is open to the public and will take place in the Judicial Institute Lecture Hall on Saturday, February 20th at 1:30 p.m. All are welcome and encouraged to attend as the nation’s two highest-scored environmental moot court teams argue their way to the title of NELMCC champion.

 

By Joana Haxhiu

 

Michigan Under State of Emergency

In today society we have become accustomed to having access to clean tap water from the comfort of our homes. Unfortunately, that is not the case for residents of Flint, Michigan. In the 1980’s, Flint was home to many automobile factories such as General Motors.[1]  While factories were based there, the city prospered, but in the 1990’s many of them began closing their doors.[2] As many plants were closing, residents began leaving the town, thus, the population decreased, and violent crimes increased.[3]  It quickly became one of the most dangerous cities in America.[4]  Then in 2011, Flint was declared to be in a financial state of emergency that forced the state to take budgetary control.[5]

Contamination of the water supply began a few years ago when Flint’s state officials decided to switch Flint’s water supply from Lake Huron to Flint River.[6]  Flint River is a well-known river that is known for its Filth.[7] The switch was intended to be temporary; in the mean time the state was suppose to run a new supply line to Lake Huron within a 2 year period. [8]   Soon after the switch residents started seeing a difference in their tap water.[9]  Residents began complaining that their tap water “started to look, taste and smell funny”.[10]

Residents blame their government for the condition of their water system. Research conducted showed that Flint River was highly corrosive, and that the Department of Environmental Quality failed to treat the river with anti-corrosive agents.[11]  Therefore, the water was turning brown as a result of the water eroding the iron water mains.[12]  To make matters worse, lead began percolating into the water supply causing a threat to its residents.

Flint’s Water supply has been contaminated with lead causing health problems to its residents. Lead poisoning has been the main concern. Lead poisoning may decrease a persons IQ level, it also affects ones behavior and has been linked to criminality. [13]  It may also affect Brain development, “Kidney, and neurological functions.[14]  Children are more vulnerable to lead poisoning than adults.[15]  There have been a number of fatal deaths as a result of the contaminated water.  It has been suspected that the contamination triggered the outbreak of Legionnaires’ disease.[16]  This disease, “which is caused by a bacterial infection, killed nine people in Flint, Michigan.”[17]

After two years of living with lead filled water, public uproars have pressured Michigan’s Governor to increase the state’s budget.[18]  Governor Snyder agreed to reserve an additional $195 million for Flint.[19] According to Snyder “The state already approved $37 million in Flint funding, twenty-five million dollars of Snyder’s latest allocation would go toward removing lead from the city’s pipes”. [20]  Snyder also stated “$25 million of the Flint funding would replace 5,000 known old pipes.[21]  Flint’s mayor Karen Weaver stated that the city plans to replace of the lead lines this year.[22] This project involves “removing up 13, 500 lead pipes over the 12 year period with a cost of 42 million.”[23] The overall project will cost the city 55 million dollars.[24] According to recent news articles, involuntary manslaughter charges may be brought to state official who are found to be responsible for Flint’s water crisis.[25]  If they are found guilty they may face up to 15 years in prison.[26]

Today the city has switched back to using Lake Huron for its water supply; researches found that they still detected lead levels in the water.[27]  Hopefully state officials can rectify the situation because the residents of Flint are living in unsanitary conditions. The government should take responsibility for causing the contamination of the water supply, because of their failure to treat the river with anti-corrosive agents. Their failure to clean the river violated their state laws; therefore the Department of Environmental Quality should take responsibility for poisoning their residents.  It will be difficult to prove officials from the Department of Environmental Quality were negligent with the handling the water supply, nonetheless, I believe they should face criminal charges as a result of it.


[1] Sara Ganim & Linh Tran, How Tap Water became Toxic in Flint Michigan, cnn (Jan. 13, 2016), http://www.cnn.com/2016/01/11/health/toxic-tap-water-flint-michigan/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7]  Ganim & Tran, supra note 1.

 

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Ganim & Tran, supra note 1.

[14] Id.

[15] Id.

[16] Id.

[17] Sara Ganim & Linh Tran, How Tap Water became Toxic in Flint Michigan, cnn (Jan. 13, 2016), http://www.cnn.com/2016/01/11/health/toxic-tap-water-flint-michigan/.

 

[18]  Michigan Governor Includes $195 Million for Flint in New Budget, nbcnews (Feb. 11, 2016), http://www.nbcnews.com/storyline/flint-water-crisis/michigan-governor-includes-195-million-flint-new-budget-n516306.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] nbcnews,  supra note 18.

[25] Rob Verger, The Michigan Officials Responsible for Flint’s Water Crisis Could face Manslaughter Chargers, Vice News (Feb 10, 2016), https://news.vice.com/article/the-michigan-officials-responsible-for-flints-water-crisis-could-face-manslaughter-charges.

[26] Id.

[27] Id.

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