Mother Earth is getting no respect in WV or at the Supreme Court

And, we have news about air quality in Allegheny County, and a Pittsburgh visit by the U.S. Energy Secretary, who said the fight against climate change is the “war of our lifetimes.”

Now we are closer to the ‘climate cliff’ if not in a climate emergency! In a 6-3 majority decision, the Supreme Court struck down a now-defunct rule by the Obama EPA that would have shifted electricity generation away from coal to cleaner natural gas, wind and solar. “A decision of such magnitude and consequence rests with Congress itself,” wrote Chief Justice John Roberts for the majority.

Environmental groups, state officials, the coal industry and lawyers weigh in:

David Masur, executive director of PennEnvironment: “The Supreme Court just made the monumental task of cleaning up our air and reducing climate-warming pollution much, much harder. We have limited time to reign in our climate pollution, before we fall off a climate cliff from which the planet cannot come back.”

Rachel Gleason, executive director of the Pennsylvania Coal Alliance: “Coal’s a global commodity. So it really has ebbs and flows depending on what is happening globally. Because of Russia’s conflict with Ukraine, there’s a global energy crisis…and right now, [Europe is] turning their coal plants back on, so I think these kinds of overreaching policy decisions are not meant for bureaucratic agencies that change every four or eight years.”

Alex Bomstein, director of litigation for Clean Air Council: He said these types of “major questions” arguments could now be pushed more often. “Whether the Pennsylvania courts decide to take those parties up on that and try to adopt federal law as Pennsylvania law is a question I don’t know the answer to and I think we’ll be watching.”

Rob Altenburg, director for energy and climate for PennFuture: “We don’t know what the next step is going to be, but we do know that we need to get to net-zero by 2050. We have an Environmental Rights Amendment…and the Air Pollution Control Act…so this decision isn’t applicable to the state.”

John Dernbach, director of the Environmental Law and Sustainability Center at Widener University Commonwealth Law School: He said it’s “distressing” that the court took up the case when it didn’t have to, as a vehicle for limiting executive power. He doesn’t see the ruling affecting the Wolf Administration’s attempt to regulate CO2 because Pennsylvania has its own law governing air pollution that gives the state DEP authority, as well as an Environmental Rights Amendment.

Ramez Ziadeh, Acting Secretary of the Pennsylvania Department of Environmental Protection: “The ruling undercuts good-faith efforts to fight climate change, but that does not mean we will stop fighting.”

A major effort of the Wolf administration has been joining the Regional Greenhouse Gas Initiative (RGGI), a cap-and-trade program with 11 other states to reduce carbon emissions from power plants. But Pennsylvania’s participation in RGGI hinges on the state’s next governor. Republican nominee Doug Mastriano has promised to remove the state from RGGI on his first day, if elected, while Democratic nominee Josh Shapiro has expressed doubts about RGGI.

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There is so much more to the “climate crisis” than public opinion, but here it is ...

From the Article of BeyondKona, Hawaii, June 25, 2022

At the end of the first full Supreme Court term with Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. in place, liberal Justice Stephen G. Breyer said he was amazed — and not in a particularly good way — what President George W. Bush’s nominees to the bench had accomplished in such little time.

“It is not often that so few have so quickly changed so much,” Breyer said in June 2007.

But that was nothing compared to this week as three Trump-appointed justices, joined their other Republican-majority court justices in firing off two significant decisions in rapid succession. First, a Second Amendment gun rights ruling which flies in the face of rising public concerns over escalating national gun violence now targeting the most innocent of society; children. The Court majority’s second decision was another political win and a shock to many women, a second coming to others in the form of the most significant social ruling in modern times; overturning protections granted women by Roe v. Wade for the nearly 50 years which guaranteed a woman’s fundamental right to health care and abortion.

As significant as these two recent court decisions represent, what’s ahead for this GOP-controlled court will soon affect every American regardless of their sex, race, income, or political party — an environmental climate case now being decided by the Supreme Court. As in the case of the legal dismemberment of Roe v. Wade, this case is the product of a coordinated multiyear strategy led by Republican Attorneys General.

Within days, the Republican majority on the Supreme Court is expected to hand down a decision that could severely limit the federal government’s authority to reduce carbon dioxide from power plants — pollution found to dangerously heat the planet’s climate.

Fossil Fuel Polluters Retaliate

On the front lines of this emerging battle is the case of West Virginia v. EPA, is the result of a coordinated, multi-decade strategy led by Republican Attorneys General, conservative legal activists, and their funders with ties to the oil and coal industries.

The polluter attack strategy is fairly straight forward; use the judicial system to rewrite environmental laws, weakening the executive branch’s ability to tackle global warming.

Coming up through the federal courts are more and more climate cases and headed to Supreme Court, some featuring novel legal arguments, each carefully selected for its potential to block the government’s ability to regulate industries and businesses that produce greenhouse gases. These legal strategies are becoming more and more sophisticated with time and money.

The plaintiffs seek to hem in what they call the “administrative state”, the E.P.A. and other federal agencies who set rules and enforce regulations that affect industrial sectors responsible for the majority of environmental crimes and offenses in which newer regulations are designed to rein in, e.g., global warming emissions, toxic air and water pollution violations, etc.

Congress has barely addressed the issue of climate change. Instead, for decades it has delegated authority to the EPA and other agencies because it lacks the political will, and equally important, the expertise possessed by the specialists who write complicated rules and regulations and who can respond quickly to changing science – a long standing practice now embedded in today’s Capitol Hill gridlock.

Follow the Money, Big Time

The Federalist Society is one of many money sources engaged in attacks on Federal environmental and climate protections. The Society is funded by the likes of Koch Industries, which has long fought and funded climate action roadblocks; the Sarah Scaife Foundation, created by the heirs to the Mellon oil, aluminum and banking fortune; and Chevron, the oil giant and plaintiff in the case that created the so-called “Chevron defense”. After a 1984 Supreme Court ruling, that doctrine holds that courts must defer to reasonable interpretations of ambiguous statutes by federal agencies on the theory that agencies have more expertise than judges and are more accountable to voters. “Judges are not experts in the field and are not part of either political branch of the government,” Justice John Paul Stevens wrote in his opinion for a unanimous court ruling.

The forthcoming case; West Virginia v. E.P.A., No. 20–1530 on the court docket, is notable for the tangle of connections between the plaintiffs and the Supreme Court justices who will decide their case.

The Republican plaintiffs share many of the same donors behind efforts to nominate and confirm five of the Republicans on the bench — John G. Roberts, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

“It’s a pincer move,” said Lisa Graves, executive director of the progressive watchdog group True North Research and a former senior Justice Department official. “They are teeing up the attorneys to bring the litigation before the same judges that they handpicked.”

The pattern is repeated in other climate cases filed by the Republican AG’s now advancing through the lower courts: The plaintiffs are supported by the same network of conservative donors who helped former President Donald J. Trump place more than 200 federal judges, many now in position to rule on the climate cases in the coming year.

At least two of the cases feature an unusual approach that demonstrates the aggressive nature of the legal campaign. In those suits, the plaintiffs are challenging regulations or policies that don’t yet exist. They seek to pre-empt efforts by President Biden to deliver on his promise to pivot the country away from fossil fuels, while at the same time aiming to prevent a future president from trying anything similar.

The Stakes for Climate Cases ~ Limitations on action in the United States against global warming could doom global efforts to avert the worst climate disruptions.

Victory for the plaintiffs in these cases would mean:

>>> the federal government could not restrict tailpipe emissions because of vehicles’ impact on climate, even though transportation is the country’s largest source of greenhouse gases.
>>> the government also would not be able to force electric utilities to replace fossil fuel-fired power plants (the second-largest source of planet warming pollution), with wind and solar power, and
>>> executive branch could no longer consider the economic costs of climate change when evaluating whether to approve a new oil pipeline or similar project or environmental rule.

Those limitations on climate action in the United States, which has pumped more planet-warming gases into the atmosphere than any other nation, would quite likely doom the world’s goal of cutting enough emissions to keep the planet from heating up more than an average of 1.5 degrees Celsius compared with the preindustrial age.

A temperature rise greater than 1.5 degrees Celsius is the threshold beyond which scientists say the likelihood of catastrophic hurricanes, drought, heat waves and wildfires significantly increases. The Earth has already warmed an average of 1.1 degrees Celsius.

“If the Supreme Court uses this as an opportunity to really squash E.P.A.’s ability to regulate on Climate Change, it will seriously impede U.S. progress toward solving the problem,” said Michael Oppenheimer, a professor of geosciences and international affairs at Princeton University.

But many conservatives say the decision violates the separation of powers by allowing executive branch officials rather than judges to say what the law is. Associate Justice Gorsuch wrote that Chevron allowed “executive bureaucracies to swallow huge amounts of core judicial and legislative power.” In other words, elected judges and politicians are more qualified than scientists and agency experts to determine public harm when it comes to climate change and other environmental impacts.

Delaware River (black trace) forms boundaries for these Penna. counties: Delaware, Philadelphia, Bucks, Northampton, Monroe & Pike

From an Article by Maya Weber, S&P Global — Platts News, March 10, 2021

Washington — Even with the change in presidential administrations, the US is supporting PennEast Pipeline’s position in a Supreme Court case examining a private developer’s ability to use eminent domain to seize properties in which a state has an interest.

The continuation of the US Solicitor General’s support that emerged toward the end of the Trump Administration could benefit the 116-mile, 1.1 Bcf/d project linking Marcellus Shale dry gas production with markets in Pennsylvania, New Jersey and New York.
The project has struggled with regulatory and litigation hurdles in New Jersey, which challenged the project’s use of eminent domain and rejected water permits.

At issue before the Supreme Court is a 3rd US Circuit Court of Appeals judgment that found that because of state sovereign immunity, the private pipeline company lacked authority to pull the state of New Jersey into federal court for condemnation proceedings.

PennEast appealed the decision to the Supreme Court, with backing from other natural gas companies, which argued the ruling could enable states to block interstate gas pipelines and chill investments in infrastructure across the US.

In a friend of the court brief filed March 8, Acting Solicitor General Elizabeth Prelogar argued that the 3rd Circuit lacked jurisdiction to determine whether the Natural Gas Act authorizes the pipeline company to condemn state property. The state should have raised its contention about the lack of authority before FERC and in the pending appeals court review of the commission’s decisions, the brief said.

The US also argued that the “text, structure, history and purpose” of the NGA show it authorizes pipeline certificate holders to condemn all property needed to build a FERC-approved pipeline, “whether or not a state claims any interest in such property.” On its face, the US argued, the authority extends to any property needed for the project, and the court cannot narrow that reach by inserting words Congress chose to omit.

It also argued that principles of state sovereign immunity do not require a different conclusion; it said Congress has long delegated the right of eminent domain to private actors.

Impact on role of Federal Energy Regulatory Commission (FERC)

In addition, the US brief warned of a potentially profound effect on FERC’s ability to administer the interstate natural gas system, suggesting the 3rd Circuit decision would turn state conservation easements into “a sword against federally approved projects.”

“Under the court of appeals’ decision, all the state needs to preclude any FERC-approved project it opposes is a willing landowner along the route,” the US wrote, adding the state could also use its own eminent domain powers if the landowner was unwilling.

Congress added the section of the NGA on eminent domain, it said, to prevent states from nullifying FERC’s exercise of its exclusive jurisdiction to regulate the transport of gas in interstate commerce.

New Jersey, in arguing against Supreme Court review, had called warnings about implications of the 3rd Circuit ruling overstated, and said the unanimous circuit court judgment reflected the proper application of sovereign immunity law and statutory interpretation rules.

PennEast, in a statement March 10, welcomed the continued US support, which it said “underscores this case presents an issue that cuts across party lines.”

The company said several factors potentially impact its anticipated in-service date. “Among those factors are approval from FERC on the phased approach and approval of the remaining permit applications from Pennsylvania regulators, as well as construction-related considerations,” it said. “We anticipate placing the Phase One facilities in service in 2022 and Phase Two facilities in service in 2024.”

Faced with the adverse 3rd Circuit ruling affecting the route in New Jersey, PennEast had sought permission from FERC to build the project in two phases (CP20-47), with the first in the friendlier regulatory terrain of Pennsylvania. That amendment application faces opposition from environmental groups and local interests at FERC.

ACP extends from WV to VA & NC, may not be needed

From an Article by Maya Weber, S & P Global — Platts, June 1, 2020

Washington — A coalition of environmental groups opened June 1 a new front in their legal war against the 600-mile, 1.5 Bcf/d Atlantic Coast Pipeline project, contending that a supplemental environmental impact statement is needed.

The action comes as lead developer Dominion Energy already is laboring to get the project back into construction after a series of legal setbacks. For instance, it is hoping for a positive US Supreme Court decision soon to help reinstate permission vacated by a federal circuit court for the pipeline to cross the Appalachian Trail.

The project is intended to move Appalachian natural gas to mid-Atlantic markets.

Should the developer prevail in the Supreme Court, it faces a possible new avenue of litigation in the form of a roughly 4,000-page filing posted on the Federal Energy Regulatory Commission’s website June 1 by Southern Environmental Law Center, Appalachian Mountain Advocates and Chesapeake Bay Foundation on behalf of a coalition of conservation groups.

The groups argued in the filing that a supplemental EIS is needed in light of new information that has come to light since FERC issued an EIS for the pipeline project in 2017, and given upcoming FERC decisions on key matters such as whether to extend certificate authorization for the project beyond the October expiration date and whether to lift FERC’s existing stop-work order on construction.

Part of the groups’ rationale for a new review is that the region’s energy infrastructure has undergone a dramatic shift away from gas-fired power, while the cost of the pipeline has ballooned.

“In January 2020, Virginia — the site of over half of the ACP’s proposed route — told the Supreme Court that in light of the mounting evidence that the pipeline is not needed, the ACP threatens Virginia’s natural resources without clear corresponding benefits,” they wrote.

New data for the Federal Energy Regulatory Commission Commission (FERC)

And they said new information has come to light that they contended must be considered under the National Environmental Policy Act, involving endangered species along the pipeline route, expanded scientific information about climate change, and changing circumstances related to cumulative impacts from projects in the area.

In addition, they argued there have been substantial erosion, sedimentation and slope failures since 2017 along the ACP route and other pipelines in mountainous terrain, undermining FERC’s conclusions about effectiveness of mitigation in its documents. In light of the recently narrowed definition of waters of the US, some water bodies crossed by the project, including wetlands, may be at greater risk if permitting authorities no longer consider them within the purview of the Clean Water Act, they said.

Large long pipelines in steep terrain cause sediment & water pollution

Dominion Energy response to filings

In response to the filing, Dominion spokeswoman Ann Nallo said many of the concerns raised by the environmental groups already have been addressed publicly and others are being addressed through ongoing permitting processes with the agencies.

For example, ACP is working with the US Fish and Wildlife Service on a new biological opinion that will include the most up-to-date information on the impacted species.

The project is needed more than ever for the region’s economy and path to clean energy, she argued.

“The ACP will also support our region’s transition from coal and the rapid expansion of renewables, both of which are essential to Dominion Energy’s and Duke Energy’s plans to achieve net zero emissions by 2050,” she said.

ClearView Energy Partners, in a research note, said it expects the Supreme Court to remove one obstacle to the Appalachian Trail crossing but emphasized that others remained for the project. ClearView suggested the environmental groups may be preparing to ask the DC Circuit Court of Appeals to stay FERC’s certificate authorization when the court brings a legal challenge related to the FERC authorization out of abeyance.

“Given the strong consensus that the Supreme Court may reverse the 4th Circuit, we see this call to issue a supplemental EIS as another avenue through which the project’s opponents intend to delay, if not try to halt, the project altogether.”

Dominion Energy goes to the court of last resort

From the Allegheny Blue Ridge Alliance, Update #264, February 20, 2020

The U.S. Supreme Court argument of the Cowpasture River Preservation Association v. Forest Service will take place on Monday, February 24 at 10 am. One-hour is scheduled for the case.

To review briefs that have been filed on the Cowpasture case, click here. The ABRA Update article on the Fourth Circuit Court of Appeals decision of December 2018 that is being appealed is available here.

The U.S. Forest Service and Atlantic Coast Pipeline, LLC are the appellants in the case. The respondents are seven ABRA members: Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Association, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia.

Those who plan to attend the argument should consult instructions on the Supreme Court website, here. Note that space in the courtroom is limited and there is no guarantee that all who wish to attend will be seated. Therefore, it is advised that attendees for the argument arrive very early. The Supreme Court is at 1 First St., SE, Washington, DC, located 0.3 miles from the Capital South Metro Station. The closest parking garage is at Union Station, located 0.5 miles from the Court.

Audio recordings of all oral arguments heard by the Supreme Court are posted online on Fridays of each argument week (February 28 for this case). To access the recordings, click here.

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Federal Court Rebuffs US Fish & Wildlife Service (FWS) Over Classification of Northern Long-Eared Bat

From the Allegheny Blue Ridge Alliance, Update #264, February 20, 2020

The 2015 listing of the northern long-eared bat as “threatened” rather than “endangered” by the U.S. Fish and Wildlife Service (FWS) has been rejected by U.S. District Court for the District of Columbia. The January 28 decision by the Court, came as the result of a legal challenge by the Center for Biological Diversity, threatened despite the fact that it has declined in its core range by over 90% since 2006, when Defenders of Wildlife, Sierra Club, Coal River Mountain Watch and Ohio Valley Environmental Coalition.

The bat, whose habitat includes the central Appalachian Mountains, was listed as the fungal disease known as white-nose syndrome began killing hibernating bats by the millions.

In rejecting the agency’s decision, the judge found that FWS had failed to explain why the species was not endangered after suffering catastrophic declines as a result of white-nose syndrome. The judge also found FWS failed to consider the cumulative effects of habitat destruction against that grim backdrop.

The decision could impact future infrastructure developments in the habitat region of the bat. It is not yet known whether the FWS will appeal the decision. For more, click here.

Map from the Richmond Times-Dispatch, May 18, 2015

From the Allegheny – Blue Ridge Alliance, ABRA Update #257, December 19, 2019

Efforts by Dominion Energy to convince Congress to approve having the Atlantic Coast Pipeline (ACP) cross the Appalachian National Scenic Trail have not yielded results.

For most of the past year Dominion has been seeking to have a rider added to other legislation that would, in effect, overturn the decision of the Fourth Circuit Court of Appeals that vacated the permit for the ACP issued by the U.S. Forest Service.

Within the past week, two prominent bills that were believed to be possible vehicles for the Dominion amendment – the National Defense Authorization Act and the continuing resolution funding the Federal Government –passed without language addressing the AT issue.

For now, the issue remains pending before the U.S. Supreme Court, which is scheduled to hear arguments on an appeal of the Fourth Circuit decision on the case (U.S. Forest Service v. Cowpasture River Preservation Association, et. al.) on February 24. A decision on the case is anticipated to be announced in June.

>>>>>>>>>>>>>>>>>>>>>>>>

Dominion still sees U.S. Atlantic Coast natgas pipe online in 2022 despite Morgan Stanley’s doubts

From an Article by Scott DiSavino, Reuters News Service, December 16, 2019

(Reuters) – Dominion Energy Inc said on Monday it was confident it will complete the proposed $7.3-$7.8 billion Atlantic Coast natural gas pipeline from West Virginia to North Carolina by early 2022, in response to a prediction by investment bank Morgan Stanley that a court decision would likely scuttle the project.

“We remain committed to completing the project for the good of our economy and the environment,” Dominion spokesman Aaron Ruby said, noting the company expected to complete construction in late 2021 with final in-service in early 2022.

Dominion made its comments after Morgan Stanley said in a report that “Atlantic Coast will likely not be completed given the Fourth Circuit’s likely (in the bank’s view) rejection, for the third time, of a newly issued Biological Opinion and Incidental Take Statement that we expect to come by the first quarter of 2020.”

In July, the U.S. Fourth Circuit Court of Appeals vacated the Fish and Wildlife Service’s (FWS) second Biological Opinion because the court found the agency’s decisions were arbitrary and would jeopardize the Rusty Patched Bumble Bee and other endangered species.

Federal agencies use Biological Opinions when authorizing projects that could adversely affect threatened or endangered species or critical habitats, and issue take statements to limit the number of those species that could be harmed. Ruby said Dominion expects the FWS will issue a new Biological Opinion in the first half of 2020.

Dominion suspended construction of the 600-mile (966-kilometer) project in December 2018 after the Fourth Circuit stayed the FWS’ second Biological Opinion.

Dominion and its partners, Duke Energy Corp and Southern Co., are also working through a dispute over where the pipeline can cross the Appalachian Trail. The U.S. Supreme Court has agreed to take up the Appalachian Trail case, which is also important for the construction of EQM Midstream Partners LP’s Mountain Valley gas pipe from West Virginia to Virginia.

The Supreme Court may issue a ruling in May or June 2020. So, the Appalachian Trail dispute may be resolved by a Supreme Court decision or an administrative or legislative solution.

A route revision was the likely compromise for the endangered species dispute but noted that could boost the project’s costs to around $8 billion and push completion into 2022.

When Dominion started work on the 1.5 billion cubic feet per day pipe in the spring of 2018, the company estimated it would cost $6.0-$6.5 billion and be completed in late 2019.

Land owners in Craig County (Virginia) discuss Mountain Valley Pipeline (MVP)

From an Article by Laurence Hammack, Roanoke Times, October 7, 2019

The U.S. Supreme Court said Monday it will not hear an appeal from a group of Southwest Virginia landowners whose property was taken, before they were paid, for a controversial natural gas pipeline.

An order filed on the court’s first day of a new term gave no reason why it declined to consider the case, which involves land seized by eminent domain for the Mountain Valley Pipeline.

A group of about a dozen landowners had hoped the court would overturn a ruling by a Roanoke-based federal judge, who last year gave Mountain Valley immediate possession of about 300 properties in a decision that cleared the way for tree-cutting to begin.

In a practice known as “take first, pay later,” the question of how much the landowners should be compensated was put off until a later date.

“Somewhere along the way, this is something that needs to be resolved,” said Karolyn Givens of Giles County, the lead plaintiff in the case. “It is dead wrong to take somebody’s land, damage it … and then walk away and leave the land damaged.”

Since Judge Elizabeth Dillon and two of her counterparts in West Virginia gave Mountain Valley the right of eminent domain — which involves the taking of private land for a public use — most of the property owners along the pipeline’s 303-mile route have reached settlements with the company over how much their land was worth. Givens has not; a trial in her case is set to begin October 21.

In asking the Supreme Court to take the case, attorney Christopher Johns wrote that Dillon’s decision and others like it “let MVP cut down trees and bulldoze land before anyone knows whether the pipeline will ever be built.”

Since tree cutting began in February 2018, construction has been hampered by the loss of two key federal permits, which were struck down after legal challenges by environmental groups.

Mountain Valley also faces a lawsuit by Virginia regulators, who claim the company repeatedly failed to curb erosion and sedimentation.

Mountain Valley, which says the pipeline will be completed by the middle of next year, called the appeal an effort to delay the $5 billion project. “The court’s resolution of the merits in this case would have little, if any, practical import to the parties here — if the dispute is not already moot by then,” pipeline attorneys wrote in asking the high court to let Dillon’s ruling stand.

Givens and the other plaintiffs had faced an uphill battle, as the court hears arguments and renders a decision in only about 1% of the approximately 8,000 appeals filed each year.

Although crews have yet to bury a 42-inch diameter pipe on a strip of Giles County farmland owned by Givens, she says that blasting for the trench has unearthed a cave — and exposed potential problems with contamination being spread through the underground karst formations in the region.

Mountain Valley says in documents filed with the Federal Energy Regulatory Commission that its specialists found no direct evidence of “any pre-existing karst voids or conduits,” in the area, where construction was stopped when a permit to cross the nearby Jefferson National Forest was struck down.

Helicopter of MVP hobbled with some damage

Also on Monday, a pipeline protester spent several hours chained to a Mountain Valley helicopter. The aircraft had been parked overnight in a construction area in Montgomery County, not far from where the pipeline will cross the Roanoke River. The opponent was positioned just below the helicopter’s blades, next to a banner that read “Doom to the Pipeline.”

Virginia State Police spent several hours at the scene, finally removing the person about 11:30 a.m. Standing on top of the helicopter, the protester raised both arms in the air, prompting cheers and whistles from about a dozen supporters who watched several hundred yards away.

In a statement released by Appalachians Against Pipelines, the anonymous protester said direct action was needed to stop the damage being caused by pipeline construction, and that is to come with the release of harmful greenhouse gases. “In times such as these, with the catastrophic effects of global warming accelerating at an alarming pace, it is imperative to act now,” the statement read. It was not clear Monday whether any charges had been filed.

Since work began last year, more than 50 people have been charged with sitting in trees, chaining themselves to equipment or hindering construction in other ways. Monday’s incident was the first involving a helicopter. The helicopter was being used for hydro-seeding, which is part of an effort to control erosion and sedimentation along the right-of-way, Mountain Valley spokeswoman Natalie Cox said.

Monday’s incident left the helicopter damaged, Cox said, “the extent of which is still being evaluated.”

On Aug. 15, Mountain Valley said it had decided to suspend new construction in much of Virginia, following a lawsuit filed by environmental groups that claimed the work was harming endangered and threatened species.

Both the 4th U.S. Circuit Court of Appeals and FERC have since been asked to order a full stop to construction while the case is pending. Neither had reached a decision by late Monday.

Howard Zinn (1922 - 2010), historian & social activist

From the InfoShop Staff via The Progressive, October 6, 2018

#####. Essay by Howard Zinn on October 21, 2005 .#####

John Roberts sailed through his confirmation hearings as the new Chief Justice of the Supreme Court, with enthusiastic Republican support, and a few weak mutterings of opposition by the Democrats. Then, after the far right deemed Harriet Miers insufficiently doctrinaire, Bush nominated arch conservative Samuel Alito to replace Sandra Day O’Connor. This has caused a certain consternation among people we affectionately term “the left.”

I can understand that sinking feeling. Even listening to pieces of Roberts’s confirmation hearings was enough to induce despair: the joking with the candidate, the obvious signs that, whether Democrats or Republicans, these are all members of the same exclusive club. Roberts’s proper “credentials,” his “nice guy” demeanor, his insistence to the Judiciary Committee that he is not an “ideologue” (can you imagine anyone, even Robert Bork or Dick Cheney, admitting that he is an “ideologue”?) were clearly more important than his views on equality, justice, the rights of defendants, the war powers of the President.

At one point in the hearings, The New York Times reported, Roberts “summed up his philosophy.” He had been asked, “Are you going to be on the side of the little guy?” (Would any candidate admit that he was on the side of “the big guy”? Presumably serious “hearings” bring out idiot questions.)

Roberts replied: “If the Constitution says that the little guy should win, the little guy’s going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy’s going to win, because my obligation is to the Constitution.”

If the Constitution is the holy test, then a justice should abide by its provision in Article VI that not only the Constitution itself but “all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land.” This includes the Geneva Convention of 1949, which the United States signed, and which insists that prisoners of war must be granted the rights of due process.

A district court judge in 2004 ruled that the detainees held in Guantanamo for years without trial were protected by the Geneva Convention and deserved due process. Roberts and two colleagues on the Court of Appeals overruled this.

There is enormous hypocrisy surrounding the pious veneration of the Constitution and “the rule of law.” The Constitution, like the Bible, is infinitely flexible and is used to serve the political needs of the moment. When the country was in economic crisis and turmoil in the Thirties and capitalism needed to be saved from the anger of the poor and hungry and unemployed, the Supreme Court was willing to stretch to infinity the constitutional right of Congress to regulate interstate commerce. It decided that the national government, desperate to regulate farm production, could tell a family farmer what to grow on his tiny piece of land.

When the Constitution gets in the way of a war, it is ignored. When the Supreme Court was faced, during Vietnam, with a suit by soldiers refusing to go, claiming that there had been no declaration of war by Congress, as the Constitution required, the soldiers could not get four Supreme Court justices to agree to even hear the case. When, during World War I, Congress ignored the First Amendment’s right to free speech by passing legislation to prohibit criticism of the war, the imprisonment of dissenters under this law was upheld unanimously by the Supreme Court, which included two presumably liberal and learned justices: Oliver Wendell Holmes and Louis Brandeis.

It would be naive to depend on the Supreme Court to defend the rights of poor people, women, people of color, dissenters of all kinds. Those rights only come alive when citizens organize, protest, demonstrate, strike, boycott, rebel, and violate the law in order to uphold justice.

It would be naive to depend on the Supreme Court to defend the rights of poor people, women, people of color, dissenters of all kinds. Those rights only come alive when citizens organize, protest, demonstrate, strike, boycott, rebel, and violate the law in order to uphold justice.

The distinction between law and justice is ignored by all those Senators–Democrats and Republicans–who solemnly invoke as their highest concern “the rule of law.” The law can be just; it can be unjust. It does not deserve to inherit the ultimate authority of the divine right of the king.

The Constitution gave no rights to working people: no right to work less than twelve hours a day, no right to a living wage, no right to safe working conditions. Workers had to organize, go on strike, defy the law, the courts, the police, create a great movement which won the eight-hour day, and caused such commotion that Congress was forced to pass a minimum wage law, and Social Security, and unemployment insurance.

The Brown decision on school desegregation did not come from a sudden realization of the Supreme Court that this is what the Fourteenth Amendment called for. After all, it was the same Fourteenth Amendment that had been cited in the Plessy case upholding racial segregation. It was the initiative of brave families in the South–along with the fear by the government, obsessed with the Cold War, that it was losing the hearts and minds of colored people all over the world–that brought a sudden enlightenment to the Court.

The Supreme Court in 1883 had interpreted the Fourteenth Amendment so that nongovernmental institutions hotels, restaurants, etc.-could bar black people. But after the sit-ins and arrests of thousands of black people in the South in the early Sixties, the right to public accommodations was quietly given constitutional sanction in 1964 by the Court. It now interpreted the interstate commerce clause, whose wording had not changed since 1787, to mean that places of public accommodation could be regulated by Congressional action and be prohibited from discriminating.

Soon this would include barbershops, and I suggest it takes an ingenious interpretation to include barbershops in interstate commerce.

The right of a woman to an abortion did not depend on the Supreme Court decision in Roe v. Wade. It was won before that decision, all over the country, by grassroots agitation that forced states to recognize the right. If the American people, who by a great majority favor that right, insist on it, act on it, no Supreme Court decision can take it away.

The rights of working people, of women, of black people have not depended on decisions of the courts. Like the other branches of the political system, the courts have recognized these rights only after citizens have engaged in direct action powerful enough to win these rights for themselves.

This is not to say that we should ignore the courts or the electoral campaigns. It can be useful to get one person rather than another on the Supreme Court, or in the Presidency, or in Congress. The courts, win or lose, can be used to dramatize issues.

On St. Patrick’s Day, 2003, on the eve of the invasion of Iraq, four anti-war activists poured their own blood around the vestibule of a military recruiting center near Ithaca, New York, and were arrested. Charged in state court with criminal mischief and trespassing (charges well suited to the American invaders of a certain Mideastern country), the St. Patrick’s Four spoke their hearts to the jury.

Peter DeMott, a Vietnam veteran, described the brutality of war. Danny Burns explained why invading Iraq would violate the U.N. Charter, a treaty signed by the United States. Clare Grady spoke of her moral obligations as a Christian. Teresa Grady spoke to the jury as a mother, telling them that women and children were the chief victims of war, and that she cared about the children of Iraq. Nine of the twelve jurors voted to acquit them, and the judge declared a hung jury. (When the federal government retried them on felony conspiracy charges, a jury in September acquitted them of those and convicted them on lesser charges.)

Still, knowing the nature of the political and judicial system of this country, its inherent bias against the poor, against people of color, against dissidents, we cannot become dependent on the courts, or on our political leadership. Our culture–the media, the educational system–tries to crowd out of our political consciousness everything except who will be elected President and who will be on the Supreme Court, as if these are the most important decisions we make. They are not. They deflect us from the most important job citizens have, which is to bring democracy alive by organizing, protesting, engaging in acts of civil disobedience that shake up the system. That is why Cindy Sheehan’s dramatic stand in Crawford, Texas, leading to 1,600 anti-war vigils around the country, involving 100,000 people, is more crucial to the future of American democracy than the mock hearings on Justice Roberts or the ones to come on Judge Alito.

That is why the St. Patrick’s Four need to be supported and emulated. That is why the GIs refusing to return to Iraq, the families of soldiers calling for withdrawal from the war, are so important.

That is why the huge peace march in Washington on September 24 bodes well.

Let us not be disconsolate over the increasing control of the court system by the right wing.

The courts have never been on the side of justice, only moving a few degrees one way or the other, unless pushed by the people. Those words engraved in the marble of the Supreme Court, “Equal Justice Before the Law,” have always been a sham.

No Supreme Court, liberal or conservative, will stop the war in Iraq, or redistribute the wealth of this country, or establish free medical care for every human being. Such fundamental change will depend, the experience of the past suggests, on the actions of an aroused citizenry, demanding that the promise of the Declaration of Independence — an equal right to life, liberty, and the pursuit of happiness — be fulfilled.

Ohio Supreme Court to Consider Local Bans on Drilling & Fracking

From an Article by Casey Junkins, East Liverpool Review, October 13, 2013

ST. CLAIRSVILLE – Utica Shale development could mean billions of dollars worth of development and thousands of jobs for Ohio, but it can also bring air, noise and visual pollution for those living near fracking sites.

In 2004, the Ohio General Assembly gave the state Department of Natural Resources, “sole and exclusive authority to regulate the permitting, location and spacing of oil and gas wells.” However, Ohio Supreme Court Chief Justice Maureen O’Connor said the high court will hear an appeal from the city of Munroe Falls in Summit County to determine if local Buckeye State governments have any authority to regulate fracking.

At least three West Virginia cities – New Martinsville, Wellsburg and Morgantown – tried to ban fracking within their boundaries in 2011. But Mountain State courts quickly ruled the state Department of Environmental Protection had the sole authority to regulate drilling and fracking, thus invalidating such local restrictions.

However, Ohio municipalities and counties may eventually be allowed to regulate fracking, pending the appeal from Munroe Falls. Attorney Barbara Tavaglione represents the People’s Oil and Gas Collaborative of Ohio, which is one of the parties in the case. According to its court filing, this organization is a “grassroots movement focused solely on oil and gas issues in Ohio.”

“Homeowners are finding out the hard way that wells are destroying the beauty, safety and economic value of their neighborhoods,” she said, adding property owners have the right to be free from loud noises caused by large tractor-trailer and drilling rigs, offensive odors or visual “blight.”

Tavaglione acknowledged Utica Shale development could bring as much as $9.6 billion worth of development to Ohio, with as many as 65,000 new jobs. However, she said local governments should have some authority to regulate the process.

According to court documents, Beck Energy Corp. – which also has leaseholdings in Belmont and Monroe counties – received an ODNR permit to drill on private property within the boundaries of Munroe Falls in early 2011.

When drilling began, the city issued a stop-work order and filed a lawsuit. The city said Beck’s activities were illegal because the company did not comply with city ordinances. Among the local requirements were that Beck obtain a city drilling permit; pay an application fee; get a zoning certificate; get right-of-way construction permits and post a performance bond.

ODNR officials sided with Beck, noting the company had all the documentation it needed to proceed once receiving that organization’s permits. However, a Summit County Common Pleas judge later ruled Beck needed to follow the city rules required of all developers, which included paying application fees and acquiring a performance bond.

Ohio’s Ninth Circuit Court of Appeals overturned most of this decision in February. The court allowed Munroe Falls to enforce its applicable street and road ordinances, but disallowed the other local permitting requirements.

Now, the high court will determine what, if any, authority local governments have over oil and gas drilling in Ohio.

“There are hundreds of cities in the state of Ohio, many of which sit atop the Marcellus and Utica shale deposits that run below the eastern part of the state,” Munroe Falls attorney Jack Morrison states in his court filing. “The dispute in this case is likely to repeat itself many times over.”

Ohio Supreme Court justices serve six-year terms and are elected by a statewide vote. Joining O’Connor on the court are Justice Judith Lanzinger, Justice Sharon Kennedy, Justice Judith French, Justice Paul Pfeifer, Justice Terrence O’Donnell and Justice William ONeill.

After initially trying to pass fracking bans in 2011, New Martinsville and Wellsburg quickly changed their positions in the face of protest from those who had signed drilling contracts. West Virginia regulators also quickly intervened to ensure they maintained the authority to determine where and when wells are drilled.

Morgantown City Council passed a ban on drilling within city limits, but that ban was overturned by a local judge in August 2011.