Category Archives: Federal Regulation (U.S.)

Why Young Americans Are Suing Obama Over Climate Change

Repost from CNN
[Editor:  See also an update in Rolling Stone.  And check out the source at Our Children’s Trust.  – RS]

Climate kids take on the feds

By John D. Sutter, Wed March 9, 2016 10:56 PM ET
kids_sue_feds_cnnvideo
Meet the teen suing Obama over climate change 01:14

Eugene, Oregon (CNN)  >  Nearly two dozen kids — ages 8½ to 19 — appeared in federal court here on Wednesday morning. They wore nose rings and braces. Suits too big in the shoulders. Some doodled, others took copious notes. The backs of some heads barely peeked above the courtroom’s wooden benches. But these plaintiffs, however young and small, united behind a massive cause that should inspire any of us old folk: They’re suing the U.S. government — and President Barack Obama — for failing to act rapidly to stop climate change.

It’s the future suing the present.

The climate kids versus the feds.

“We sat in this courtroom today, and we have filed this lawsuit, because the leaders we have elected to take care of our planet, and to take care of our country for our generation and those to follow, are failing to do their job,” said Xiuhtezcatl Tonatiuh, a 15-year-old from Colorado who is one of the 21 young plaintiffs. “My generation is going to be inheriting the crisis we see all around us today. We are standing up not only for the environment and the Earth and the atmosphere but for the rights we have to live in a healthy, just and sustainable world.”

“We are the generation that gets to rewrite history,” he added, speaking to a crowd of more than 100 outside the courthouse. “The pen is in our hands, and we are rewriting history today.”

Meet the 15-year-old kid who's suing Obama over climate change
Related article: Meet the 15-year-old kid who is suing Obama over climate change
The climate-kids suit, which got a pretrial hearing on Wednesday before Judge Thomas Coffin, is part of a years-long campaign by a group called Our Children’s Trust.

The organization, with the support of former NASA climate scientist James Hansen and others, asserts Congress and the President have done far too little to stem the climate crisis. So they’ve taken to courts, filing petitions and complaints on behalf of young people in all 50 states, saying governments are failing to protect them and future generations from the harms of global warming.

This is the second U.S. federal court case they’ve filed (the first failed), and they’re also working internationally. The government argued before Coffin on Wednesday that the suit should be dismissed. It’s unclear when he will reach a decision.

‘This case is about survival’

“At its core, this case is about survival and whether the federal defendants can continue to threaten it,” said Julia Olson, lead attorney for the kids.

That may sound like hyperbole, but it isn’t. Scientists and the U.S. government have known for decades that burning fossil fuels and chopping down rainforests moves CO2 from the ground into the atmosphere — and too much of it makes the Earth hotter and hotter. The consequences are stark, from rising seas that could swallow island nations to deadly heatwaves, mass extinctions in the natural world and the spread of diseases.

Lives and property are at risk, and since climate change only gets worse as we pump more pollution into the atmosphere, young people have far more at stake than older folks.

For future humans, the very habitability of the planet is in jeopardy.

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The federal complaint in Oregon, which the government and fossil fuel industries have asked the judge to dismiss, says the constitutional rights of these young people — including the right to life, liberty and property — are being violated. Furthermore, the climate kids’ attorneys also say they’re being discriminated against as young people who have the most to lose as climate change gains steam over time but who have little or no voice in the political process.

“This is an intergenerational issue,” Hansen, former director of the NASA Goddard Institute for Space Studies and current head of the climate science program at Columbia’s Earth Institute, told me. “It’s a case where our actions will affect our grandchildren and their children.”

Children speak to their fears of a difficult future

His granddaughter, Sophie, is among the plaintiffs. Pretty much all of them can list specific ways in which climate change is messing up their lives.

One young man, Alex Loznak, 19, grew up on a farm his ancestors settled after crossing the Oregon Trail. He’s worried it may not survive or won’t be as productive because of drought. Levi Draheim, the 8½-year-old (his mom told me he likes it when you include the ½) fears his family’s property in Florida, where he lives, will be swallowed up by the rising tides associated with warmer temperatures and melting glaciers.

Others have witnessed wildfires and hurricanes.

“There’s no way that it can’t work,” Victoria Barrett, a 16-year-old from New York, said of the lawsuit. “We are going to be here when (older generations) are not.

“We’re going to be dealing with the issues they leave behind.”

The suit names a lot of old people and institutions as defendants. There’s President Obama, several federal agencies, including the Department of Energy and the Environmental Protection Agency, and the heads of some of those agencies. The complaint is asking the court to order the U.S. government to develop a plan to fight catastrophic climate change — and to stop contributing to the problem.

While there have been some reforms, one quarter of fossil fuels extracted in the United States in 2013 came from public lands, the suit says, and the government is actively working to permit the production, use and export of these dangerous fuels, according to the complaint.

True, the Obama administration has supported policies to fight climate change, including the Paris Agreement in December and a (legally disputed) plan to clean up coal-fired power plants. But these actions are not nearly enough to prevent catastrophic warming, which is usually regarded as more than 2 degrees Celsius of warming above pre-industrial levels.

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There are scholars who think only courts will do the trick.

“We are at a point with climate where nature’s math — the carbon math — counts,” said Mary Wood, faculty director of the Environmental and Natural Resources Law Program at the University of Oregon and who is not directly involved in the case. “And we have to be sure everything adds up. Only a court is positioned to do that. The administration is not doing that. Its efforts, while important, fall short. … The time for slow incremental steps is over.”

The attorneys for the climate kids also are trying to prove that the atmosphere is an asset held in public trust by the government and that federal agencies have a duty to protect it.

On this and other points, the feds made their opposition abundantly clear.

‘No constitutional right to a pollution-free environment’

“There simply is no constitutional right to a pollution-free environment,” a U.S. Department of Justice attorney said, arguing these matters should be left to the president and Congress.

“The federal courts are not a proper forum in which to raise generalized grievances about federal policies,” the DOJ attorney said. He added that there is a “massive gap” between the harms the plaintiffs are alleging and the federal government’s actual actions; that companies and governments outside the United States contribute to the problem, too; and that young people should not be treated as a special class for discrimination in this or other cases.

The message: Sorry, kids, maybe next time?

An attorney representing fossil fuel industry associations also generally sided with the Obama administration in court. So, really, it was Obama and Dirty Energy versus the future.

The symbolism was striking, and it wasn’t lost on the young plaintiffs.

“It was a lot of big words. It was hard to follow,” Avery McRae, a 10-year-old plaintiff wearing a peacoat and gold-colored slippers, told me after court. “They (the defense and intervening attorneys) care more about their business than they do about the future of our generation.”

McRae, who’s from Eugene, Oregon, where the motion to dismiss the case was heard, became interested in climate change after she read a book about snow leopards and found out that climate change was among the factors threatening their survival.

“A few years ago, when she was young,” her mom told me (as if she’s not young now), McRae took that knowledge and held a party in honor of the imperiled snow leopards, raising $300 for a conservation group.

She then did the same for wolves and salmon.

Wednesday morning, the 10-year-old was drawing horses and singing along to musicals before going to federal court. Her mother, Holly McRae, told me it was almost “sad” to see her bright-eyed daughter sitting in such a sterile, wood-paneled environment in front of a federal judge. “It was surreal, really,” said her father, Matt McRae.

But they’re also immeasurably proud.

They hope her presence will help compel the judge to reject the government’s motion to dismiss the case — and to move it to trial.

Maybe it will be an important step toward climate justice.

As she watched the proceedings, Holly McRae thought about what the judge must be seeing as he heard oral arguments from the three attorneys.

Two rows of young children staring back at him.

The faces of the future.

FAIRFIELD DAILY REPUBLIC: Valero taking oil-by-rail to feds; Benicia stays its course

Repost from the Fairfield Daily Reporter

Valero taking oil-by-rail to feds; Benicia stays its course

By Todd R. Hansen, March 18, 2016
Tank cars sit on the railroad tracks, near Cordelia Road and Chadbourne Road on January 1, 2016. Benicia's Planning Commission denied Valero's bid to build a rail offloading facility for crude oil, and now the company is seeking the opinion of the federal Surface Transportation Board. (Robinson Kuntz/Daily Republic file)
Tank cars sit on the railroad tracks, near Cordelia Road and Chadbourne Road on January 1, 2016. Benicia’s Planning Commission denied Valero’s bid to build a rail offloading facility for crude oil, and now the company is seeking the opinion of the federal Surface Transportation Board. (Robinson Kuntz/Daily Republic file)

BENICIA — More than four hours of staff and Valero testimony this week ended with the oil company asking the Benicia City Council for a delay and the city moving forward with its public hearing process.

Valero will seek an opinion from the federal Surface Transportation Board to determine if the city has any authority to require environmental impact mitigation for a proposed railway off-loading facility at its refinery.

The company wants to move crude oil on trains to its refinery in the Benicia Industrial Park. It has applied to the city for a use permit to construct the necessary off-loading facility.

Planning commissioners in February denied the use permit, stating in its resolution:

“(T)he proposed location of the conditional use and the proposed conditions under which it would be operated and maintained would not be consistent with the General Plan as it would be detrimental to the public health, safety or welfare of persons residing or working in or adjacent to the neighborhood of the use, or to the general welfare of the city as well as uprail communities.”

Valero appealed that decision to the City Council, which started its public hearing process Tuesday. The hearing was continued to April 4 to receive comments from the public. April 6 and April 19 are also dates set aside as needed.

Valero representatives told the city it would take a month or more to submit material to the federal board, and that the decision-making process could take three to six months more.

Valero officials could not be reached Thursday. A message was left seeking comment.

Essentially, the company does not believe the city has the authority to impose conditions on railway matters, which typically falls under federal authority, according to city documents.

The city, while admitting it does not have any authority about what happens on the railways themselves, believes it does have planning and land-use authority over the refinery facility.

“The issue is where does (the railway pre-emption) start, and where does it stop,” said Amy Million, principal planner for Benicia.

Pre-emption, in this case, is basically a concept in which state and local laws are pre-empted in favor of interstate commerce regulations, which are governed under federal authority.

The Surface Transportation Board was given its authority in the Interstate Commerce Commission Termination Act of 1995, which “pre-empts state and local regulation, i.e., ‘those state laws that may reasonably be said to have the effect of ‘managing’ or ‘governing’ rail transportation.’ ”

The act gives “the Surface Transportation Board exclusive jurisdiction over: (1) transportation by rail carriers and the remedies provided with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and (2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one state.”

Transportation board spokesman Dennis Watson said he could not comment on a project that had not yet been received by the agency.

The proposal is for oil to be transported on 50-car trains, twice daily, using Pacific Union tracks, which would pass through Fairfield, Suisun City, Dixon and into Benicia.

The shipments would replace about 70,000 barrels of oil currently brought in daily by ship.

The project has generated a great deal of comment. The city reports it tallied 1,800 substantive comments on the Environmental Impact Report, of which 550 discussed hazards, 260 focused on air quality and greenhouse gas emissions, 80 on transportation, 60 on biological resources, 50 on hydrology and geology and 40 on noise.

VIDEO: Benicia City Council, March 15, 2016: Valero Attorney John Flynn surprises everyone, calls for a delay

This is a video clip of Valero’s presentation at the City Council meeting of March 15. The clip begins with a 7 minute presentation by Valero Environmental Engineering Manager Don Cuffle.  Attorney John Flynn follows, speaking for only 2 1/2 minutes, first dismissing local opposition, other attorneys and Benicia’s Planning Commissioners, and then asking Council to delay the hearings while Valero petitions the federal Surface Transportation Board (STB) for the agency’s backing on Valero’s legal argument, a process which could take three to six months.  (See also Marilyn Bardet’s analysis of Valero’s delay tactic.)

This clip runs for about 12 minutes. (On the City’s longer and unindexed video, this clip begins at minute 1:56:14. and ends at 2:08:16  Note that the video archive of the entire meeting can be found on the City of Benicia website at ci.benicia.ca.us/agendas.)

VIDEO: Benicia City Council, March 15, 2016: Benicia Planning Commission Chair Donald Dean

This is a video clip of the presentation by Benicia Planning Commission Chair Donald Dean at the City Council meeting of March 15. This clip runs for about 15 1/2 minutes.  Many thanks to Benicia videographer Constance Beutel for her Youtube video recording. (On the City’s longer and unindexed video, Chair Dean’s comments begin at minute 1:36:48 and run to 1:51:45. Note that the video archive of the entire meeting can be found on the City of Benicia website at ci.benicia.ca.us/agendas.)