Legal

Court Says Residents Can Sue Frackers For Earthquake Damage

The Oklahoma State Supreme Court delivered a devastating blow to the fossil fuel industry last week when it unanimously decided that homeowners in Oklahoma could sue the industry for earthquake damage linked to hydraulic fracturing.

While the justices on the Court did not necessarily endorse the link between fracking and earthquakes — or frackquakes — they did acknowledge the fact that increased fracking activities have correlated with an increase in earthquakes, and that existing tort laws would allow plaintiffs to sue the industry if damage can be proven.

Lawsuit Forces Government To Disclose Extent Of Offshore Fracking In Gulf of Mexico

In August of last year, 21.6 million acres of the Gulf of Mexico were auctioned off to the dirty energy industry so that they could expand their offshore fracking activities in an area that was still reeling from the effects of the 2010 Deepwater Horizon oil spill.

As DeSmog’s Steve Horn reported at that time, many of the leases sold by the government in August were located in the Lower Tertiary Basin, an area defined by hard-to-penetrate rock where the crude is located in deep water, making the practice of hydraulic fracturing exceptionally risky and prone to environmental disaster.

Emails: How State Department Secretly Approved Expanding Piece of Enbridge's "Keystone XL Clone"

State Department Enbridge Emails

DeSmogBlog has obtained dozens of emails that lend an inside view of how the U.S. State Department secretly handed Enbridge a permit to expand the capacity of its U.S.-Canada border-crossing Alberta Clipper pipeline, which carries tar sands diluted bitumen (“dilbit”) from Alberta to midwest markets. 

The State Department submitted the emails into the record in the ongoing case filed against the Department by the Sierra Club and other environmental groups in the U.S. District Court for the District of Minnesota. Collectively, the emails show that upper-level State Department officials hastened the review process on behalf of Enbridge for its proposed Alberta Clipper expansion plan, now rebranded Line 67, and did not inform the public about it until it published its final approval decision in the Federal Register in August 2014.

According to a March 17, 2014 memo initially marked “confidential,” Enbridge's legal counsel at Steptoe & Johnson, David Coburn, began regular communications with the State Department on what the environmental groups have dubbed an “illegal scheme” beginning in at least January 2014. 

Enbridge State Department Emails
Image Credit: U.S. District Court for the District of Minnesota

Environmental groups have coined the approval process an “illegal scheme” because the State Department allowed Enbridge to usurp the conventional presidential permit process for cross-border pipelines, as well as the standard National Environmental Policy Act (NEPA) process, which allows for public comments and public hearings of the sort seen for TransCanada's Keystone XL pipeline.

Further, the scheme is a complex one involving Enbridge's choice to add pressure pump stations on both sides of the border to two pipelines, Enbridge Line 3 and Enbridge Line 67, to avoid fitting under the legal umbrella of a “cross-border” pipeline.

Hastening the approval process — and thus dodging both the conventional presidential permit and NEPA process — came up in a June 6, 2014 memo written by Coburn and his Steptoe co-counsel Josh Runyan. Enbridge's legal argument centered around ensuring profits for its customers “consistent with its obligations as a common carrier.”

State Department Enbridge Emails
Image Credit: U.S. District Court for the District of Minnesota

BNSF Challenges Lawsuit From Engineer Who Ran For His Life From Exploding Oil "Bomb Train"

Burlington Northern Santa Fe (BNSF) has responded defensively to the oil-by-rail lawsuit filed by former BNSF locomotive engineer Bryan Thompson, a case recently reported on by DeSmogBlog.

BNSF — the top rail carrier of oil obtained via hydraulic fracturing (“fracking”) in North Dakota's Bakken Shale basin — denied all charges. The company also argued that some federal laws protect the company from liability for injuries allegedly suffered by Thompson. 

The  Answer to the Complaint signals the likelihood of a protracted legal battle ahead. Lee A. Miller, a Minneapolis, Minnesota-based attorney representing BNSF against Thompson, filed the company's response in Cass County, North Dakota. 

Miller argued that the damages allegedly suffered by Thompson — which include Post-Traumatic Stress Disorder (PTSD) from living through and running away from the December 2013 Casselton, North Dakota oil train explosion — were “caused or contributed to by Plaintiff's own contributory or sole fault.”

He also argued that the explosion occurred due to “unknown causes for which BNSF is not responsible” and “are the result of acts or omissions of persons, entities, or corporations other than BNSF…over whom” they have “no control or right to control at the time of the alleged incident.”

BNSF Responds to Former Engineer Lawsuit
Image Credit: State of North Dakota District Court; East Central Judicial District

American Legislative Exchange Council Threatens Lawsuit Against Critics Who Point Out ALEC's Climate Denial

The American Legislative Exchange Council (ALEC) has threatened public interest group Common Cause with a lawsuit for pointing out what the public record has made clear: ALEC denies the scientific consensus on climate change.

As first reported by The Washington Post, ALEC's lawyers Alan Dye and Heidi Abegg wrote a cease-and-desist letter to Common Cause president Miles Rapoport. Dye and Abegg demanded that Common Cause stop calling ALEC a cog in the climate denial machine. 

“We demand that you cease making inaccurate statements regarding ALEC, and immediately remove all false or misleading material from the Common Cause, and related, websites within five business days,” they wrote. “Should you not do so, and/or continue to publish any defamatory statements, we will consider any and all necessary legal action to protect ALEC.”

ALEC critics call the organization a “corporate bill mill.” 

Dye and Abegg also demanded an immediate and public retraction of statements the Common Cause has made about ALEC with regards to climate denial.

ALEC Climate Denial Lawsuit

Image Credit: Common Cause

Further, Dye and Abegg argued that ALEC — contrary to the vast amount of evidence collected by those who research the organization — does not deny climate change.

BNSF Engineer Who Manned Exploding North Dakota "Bomb Train" Sues Former Employer

A Burlington Northern Santa Fe (BNSF) employee who worked as a locomotive engineer on the company's oil-by-rail train that exploded in rural Casselton, North Dakota in December 2013 has sued his former employer

Filed in Cass County, the plaintiff Bryan Thompson alleges he “was caused to suffer and continues to suffer severe and permanent injuries and damages,” including but not limited to ongoing Post-Traumatic Stress Disorder (PTSD) issues.

Thompson's attorney, Thomas Flaskamp, told DeSmogBlog he “delayed filing [the lawsuit until now] primarily to get an indication as to the direction of where Mr. Thompson's care and treatment for his PTSD arising out of the incident was heading,” which he says is still being treated by a psychiatrist.

The lawsuit is the first of its kind in the oil-by-rail world, the only time to date that someone working on an exploding oil train has taken legal action against his employer using the Federal Employers' Liability Act.

BNSF Engineer Casselton Lawsuit

Image Credit: State of North Dakota District Court; East Central Judicial District

Purposeful Distraction? Unpacking the Oil Refiners' "Bomb Trains" Lawsuit vs. Warren Buffett's BNSF

On March 13, American Fuel & Petrochemical Manufacturers (AFPM) — the oil refiners' trade association — sued oil-by-rail carrying giant Burlington Northern Santa Fe (BNSF) for allegedly violating its common carrier obligation under federal law. A DeSmogBlog investigation has revealed there may be more to the lawsuit than initially meets the eye.

Filed in the U.S. District Court for the Southern District of Texas, Houston Division, AFPM sued BNSF “for violating its common carrier obligation by imposing a financial penalty” for those carrying oil obtained via hydraulic fracturing (“fracking”) in North Dakota's Bakken Shale basin and other hazardous petroleum products in explosion-prone DOT-111 rail cars.

AFPM's beef centers around the fact that BNSF began imposing a $1,000 surcharge for companies carrying explosive Bakken fracked oil in DOT-111 cars, as opposed to “safer” CPC-1232 cars, at the beginning of 2015.

The Warren Buffett-owned BNSF did so, argues AFPM, illegally and without the authority of the federal government.

“This $1,000 surcharge on certain PHMSA-authorized rail cars breaches BNSF’s common carrier duty to ship hazardous materials under the auspices of PHMSA’s comprehensive regime governing hazardous materials transportation,” wrote AFPM's legal team, featuring a crew of Hogan Lovells attorneys. “Allowing railroads to penalize companies that ship crude oil in federally-authorized rail cars would circumvent PHMSA’s statutory and regulatory process for setting rail car standards for hazardous materials shipments.”

Upon a quick glance, it seems like a fairly straight-forward case of federal law and an intriguing example of an intra-industry dispute. But as recent history has proven, the devil is in the details.

The Coal Industry Owns The Courts (VIDEO)

In early February 2014, Duke Energy reported that a coal ash storage site along the Dan River had crumbled, releasing more than 39,000 tons of toxic coal ash into the waterway. This was not the first time that Duke had been responsible for a massive coal ash spill, and most likely not the last.

In public, the company claimed that it is making all the necessary moves to clean up the mess and prevent future disasters. But behind closed doors, the company was hard at work making sure that its negligence would never hinder its profits. Duke Energy had been paying off the right people to prevent any meaningful form of punishment.

The post-Citizens United world has led to an enormous increase in the amount of money flowing to judicial elections, which was previously an area that very few corporations gave a second look. But with a green light to throw cash around now, they’ve realized that owning the Judicial Branch of American government is just as lucrative as owning a politician.

During the 2014 midterm elections, the state of North Carolina — Duke Energy’s base of operations — became a hotbed for judicial campaign spending. In total, an unprecedented $800,000 was spent on judicial elections by a group called Justice For All NC, with more than $300,000 of that total coming solely from Duke Energy.

A recent report by the Center for American Progress (CAP) shows that elected judges are far more likely to vote in favor of corporations (those who funded their elections) than non-elected judges, explaining Duke Energy’s desire to pump hundreds of thousands of dollars into this campaign.

American Youth Sue Politicians To Force Action On Climate Change

Meaningful action to mitigate the impacts of climate change have been slow to materialize in the United States, and that lag in leadership is allowing the threat to grow much worse for future generations of Americans.

But political inaction has led to citizen action, particularly among the generations that will face the consequences of inaction. And they are making the case, literally, that the government needs to take action.

Teenagers Kelsey Juliana and Olivia Chernaik have filed a lawsuit against Democratic Oregon governor John Kitzhaber and the entire state government of Oregon, alleging that they are not doing enough to address the threats of climate change.

Contrary To BP PR, Most Oil Spill Claims Are Legit

For more than a year, oil giant BP has waged a massive public relations battle to convince Americans that the company has been bamboozled by the oil spill claims process relating to the 2010 Deepwater Horizon oil rig blowout.

This BP PR campaign has involved full-page newspaper ads paid for by the company suggesting it is being swindled by Gulf Coast residents who were not affected by the oil spill. BP spokesepeople have appeared in the media to argue that the claims process has been “absurd.” And evidence even suggests that the company has employed online “trolls” to attack legitimate victims on social media websites.

BP has spent hundreds of millions of dollars on this PR blitz, all because they want to avoid paying out any more claims to Gulf Coast residents. But the problem the company is running into now is that independent investigations have shown that the claims process is not rife with fraud, as BP has claimed.

At least 99.5% of the claims that have been filed are legitimate, according to an audit.

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