The Texas Railroad Commission examined evidence of local seismic activity and issued a proposal for decision on September 10 stating that the evidence did not support a conclusion of causation of the seismic events by Enervest Operating Company Briar Lease Well No. 1. The proposed decision is similar to a one issued August 31 for West Lake SWD Well No. 1 which concerned a wastewater injection well. At least in the context of a decision to revoke a well permit the Railroad Commission will examine specific evidence about specific wells rather than broader “study” conclusions or scholarly data collections. No doubt there will be more contests on the issue of causation and what must be shown to support the charges that link fracking to seismic events. The finding for Enervest in the recommendation was that the evidence to date is “not sufficient to reach a conclusion”. Enervest keeps its permit.
The Frontier of Family and Estate Law
Caveat: the title is a misnomer.
The June ruling by the United States Supreme Court holding unconstitutional state bans on same sex marriage created another validation: same sex divorce.
Thirty-seven states and the District of Columbia recognized same sex marriage prior to the Supreme Court decision. Same sex couples validly married in those states sometimes moved to states which did not recognize or even specifically outlawed same sex unions. In those states they lived in legal limbo. The state of residence would not recognize the marriage, and neither would the state accept US Constitutional responsibility to give legal effect to a marriage contracted under the laws of another state.
The validity of same sex marriage – marriage in every legal sense of the word – is now established under the US Constitution. The frontier may be all the follow on issues. The first and most prominent is same sex divorce.
The first issue, but perhaps already resolved: even those legal subdivisions (usually counties) that still refuse to issue marriage licenses appear willing to dissolve marriages legally performed under the laws of another state. The sound and the fury surrounding same sex marriage vanishes when the request is for a same sex divorce.
Freedom to Marry, a LGBT lobbying organization, tracks those jurisdictions that do not grant same sex marriage licenses. Apparently with same same sex divorce, there will be no residual refusal jurisdictions to track. One study shows that the rate of same sex divorce may be about the same as the rate for oppose-sex marriages, although the amount of data is obviously not the same.
Regarding the caveat: this does not seem to be a frontier. These are cases of marriage validly done under the laws of another state, dissolved under the laws of a recently-recognizing state. If every state must grant same-sex marriages equal status with all marriages, then it seems to follow that the rules, statutes, procedures and results of divorce must apply as well.
Is there a frontier? Yes, but I suggest these are the frontier areas: same sex “common law” marriages; the precise applicability of opposite-sex precedent to same sex cases; community property rules (in states where applicable); conflict of law questions; and rules of heirship.
Oklahoma allows private cause of action for alleged “fracking earthquakes”
The Oklahoma Supreme Court on June 30 ruled that private parties may bring tort lawsuits alleging damages caused by fracking. Ladra v. New Dominion, LLC (2015 OK 53, not yet published). Plaintiff Sandra Ladra was a resident of Prague, Oklahoma and was injured in the “Prague Earthquake” of November 5, 2011 – 5.0 magnitude. Her home suffered extensive damage. Her lawsuit was dismissed on jurisdictional grounds early in the proceeding, the district court holding that the Oklahoma Corporation Commission has exclusive jurisdiction over oil and gas related matters. She appealed on a point of error. The Supreme Court reversed the district court, holding that private tort actions are exclusively within the jurisdiction of the district courts, even if those actions involve damages allegedly directly caused by oil and gas operations. Plaintiff in this case alleged that fracking by a number of companies in the area around Prague caused the earthquake. The Court remanded for further proceedings. In a footnote, the Court stated that the Court was not deciding whether or not the plaintiff’s complaint was sufficient to state a claim. Plaintiff must show causation of the earthquake by fracking and then the actions of the various defendants in the fracking operations. The case is significant in this: the doors to the district courts in Oklahoma are now open to plaintiffs alleging damages from earth movement and further alleging that the earth movement is caused by fracking. The incidence of earthquakes in Oklahoma has greatly increased in recent years; will these lawsuits increase accordingly?
California: Future or Past?
California Governor Jerry Brown first served in that office from 1975 to 1983. He implemented many of the policies that form the foundation of the California of today. He was considered too idealistic – or radical – depending on point of view. In January 2015 he began his fourth and term-limited final service as Governor. Spanning 1975 to 2015, what are his priorities?
Addressing global climate change: California will use renewable resources for 50% of its electricity needs, and increase from the current 33% mandate. Governor Brown will take the proceeds from auctioning carbon-dioxide emissions credits to construct a high-speed rail line. In order to protect a river delta area considered ecologically sensitive he will build tunnels to carry water.
Governor Brown will release his draft state budget on Friday, January 9. Will it include increased spending on schools, health care clinics for poor and underserved areas or unemployment? Not known; stay tuned.
Governor Brown argues that he has a mandate to address future priorities because he transformed a projected budget deficit of $25 billion into a sound fiscal condition for the state. In his inaugural address he stood firm about restraining spending overall and cutting some budget items. His odd juxtaposition of fiscal restraint and very expensive new spending priorities stands out among governments today – municipal, state and federal. He has no ambitions to hhigher office. He is the poplular Democractic governor of the most populous state, with solid party majorities in the state legislature. Is California the model for the future of the US, state and federal? Or is the state just riding the peak of a roller coaster without provisioning for the inevitable steep ride? Or is the California economy simply so big, so diverse, and so prosperous that any policy works?
Crowded North Pole
A Russian Mir submarine descended through the Arctic Ocean depths in 2007 and planted a titanium Russian flag on the sea bed, one of the polar commanders declaring “The Arctic has always been Russian.” Denmark now officially disagrees. Denmark did not plant a flag on the sea bed. Instead they pinned a claim on the polar map by using the UN Convention on the Law of the Sea (“UNCLOS”). On December 15, 2014 the nation made its claim to 900,000 square kilometers north of Greenland. Greenland is a self-governing part of Denmark. Denmark adopted UNCLOS on December 16, 2004. UNCLOS claims to territory must be made within ten years of adoption.
No happenstance: ten year claim period per UNCLOS; well-known mineral riches at stake; Russia (and others) already moving; and Arctic sea ice melting at an accelerated rate. Arctic open water and year-round shipping may be immanent. Denmark knows how to drill for oil and gas, and knows how to do it in deep water and cold water.
How much conflict will issue? Nation states now contend for claims to the Arctic, specifically the sea bed. A total of 71 ocean going vessels traversed polar open waters in the summer of 2014, up from only 46 in 2012. sea passages require internationally recognized rules, effectively curbing conflict. Despite the polar rush, all involved countries know that much of the energy and mineral resources in the area are within the recognized 200-nautical mile economic zone of individual countries.
Like any natural resource race, unknown reservoirs and caches tempt. Denmark, Russia and many others savor the prospect of an open water Arctic prize. Russia acted unilaterally. Denmark acted under UNCLOS. Now the task is to join action for mutual advantage.
Greenpeace Billboard in Peru
Peru hosted a summit meeting on climate change in early December, 2014 under the auspices of the United Nations. Greenpeace made its point: “Time For Change! The Future is Renewable. Greenpeace.” For a billboard Greenpeace chose big and obvious: huge yellow letters easily visible from the air positioned near Nazca, Peru – near the site of a geoglyph portion of the Nazca Lines. The Nazca Lines were made between 500 B.C. and 500 A.D. by removing a layer of overburden to reveal lighter colored stratum below. The Greenpeace letters were placed next to a glyph of a hummingbird.
Greenpeace achieved its intention. Hundreds of thousands, perhaps millions, saw the message. But the message delivered with the lettering was rather different: disrespect for an archaeological site and perhaps irreparable damage from the letters and from the footprints of the activists on fragile terrain. Professional archaeologists and the Peruvian Ministry of Culture voiced their fury.
A portion of the Nazca Lines, including the hummingbird, lie within an area declared a World Heritage Site. The Greenpeace action created a real controversy. But Greenpeace intends its actions to create controversy. What difference if the actions affect a site internationally known and scientifically important or infringe my private property – or yours? The number of people damaged or affected?
Greenpeace achieved notoriety but not the objective of focusing attention on climate change. Perhaps a misfire of tactics, or perhaps a case of offending the scientific and intellectual community instead of the for-profit.
Geoengineering Closer to Reality?
Two methods of geoengineering – changing certain climate aspects by human intervention – moved closer to implementation recently. However the biggest hurdle remains – lack of funding. Lack of funding springs from the second significant hurdle – opposition to geoengineering.
The first method is cloud brightening. Brighter clouds reflect more solar rays and energy back into space, and prevent the energy from reaching the earth’s surface and heating. John Latham in 1990 published an article suggesting brightening low-lying maritime clouds by injecting tiny sea-salt particles into the clouds from below. Dr. Latham’s ideas were ignored for over ten years. During that time engineer Stephen Salter of the University of Edinburgh and colleagues worked on practical ways to do it. Then recently Armand Neukermans, developer of inkjet printers, working in Silicon Valley with colleagues contrived a “spray atomizer” to spread the sea-salt particles.
The second Method belongs to Harvard professor David Keith. Prof. Keith proposes an artificial layer of haze in the stratosphere to reflect sunlight. To accomplish his layer he constructed a system which would hang beneath a large balloon, and spray a large plume of sulphate particles to create the same effect as the haze layer. The apparatus would also measure the physical and chemical changes in the stratosphere.
Some environmental groups and certain academics oppose geoengineering and especially the planned experiments. Perhaps as a result government money is simply not available for these endeavors. Dr. Keith received funding for some research, but has none for experimental field testing. No one has any near-term prospects.
Opposition from some quarters and the accompanying or loosely related refusal to fund stop progress for now. The mechanisms seem viable. Engineering still waits.
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Climate Change 20th Conference Morale
Morale and momentum increased at the 20th Conference of the Parties to the UN Framework on Climate Change in Lima Peru this December. Whether that is only by comparison to the conference one year ago or an indication of expectations for the Paris meetings in one year’s time we will only know in one year. In Paris the representatives and experts should compile a treaty to replace the Kyoto Protocol, as time is running thin. The announcement in October by the European Union to cut emissions by 40% from 1990 levels no later than 2030 boosted progress for the 20th Conference. Cities and multinational corporations alike have pledged to reduce emissions and adopt low carbon technologies, and various governments have committed $9.3 billion to the Green Climate Fund. The President of the United States stepped out and upped the potential by his announcement in Beijing in November; the US will cut emissions from 2005 level benchmark by up to 28% by 2025. China’s contribution in Lima amounted to a footnote, a representation that emissions would reach a peak in 2030. Not to downplay, however, because China had historically refused to cut and pointed to the already-developed countries to bear the burden. Will India and Brazil now move forward with China? The US action isolated Australia, Canada and Russia as the developed and hesitant.
Twenty-first Conference, Paris, December 2015. Treaty?
Arctic sailing, anyone?
The National Oceanic and Atmospheric Administration’s annual Arctic Report Card shows less sea ice, more open water and increasing algae blooms. The down side is the report’s conclusion that climate change impacts the Arctic another year, and the statement that a driver is human-generated carbon emissions. The up side – if you view it as such – is increased navigation possibilities. The darker, less reflective open water Arctic absorbs heat, reflects less and thus accelerates the warming process according to NASA satellite measurements. Based on these data, some number of scientists (from some to many, depending on news source) believe and predict that the Arctic will be ice free in the summer sometime between now and the end of the century. That’s quite a time spread, but the consensus trend is consistent.
While neither NOAA or the NASA initiatives focus on navigation the impact seems clear. Commercial enterprises of all types no doubt will focus on navigation. Nation states will also act to promote their own interests in the Arctic. Stay tuned.
Bakken Crude Draws DOT Emergency Order
The eastbound crude petroleum carrying train collided with a derailed westbound grain train with thunderous results for Casselton, North Dakota. Ruptured rail cars belched 400,000 gallons of crude which the shattered rail cars ignited to explosion lighting the late December night. More than a month before that 2013 day, the rural landscape near Aliceville, Alabama similarly erupted when a train derailed and released an undetermined amount of crude from punctured tank cars. The crude fouled wetlands near the site of the wreck, although thankfully no one was hurt.
The US Department of Transportation responded on February 25, 2014 with an Emergency Restriction/Prohibition applicable to shipments of Bakken crude. Based on evidence that shows Bakken crude to have Reid Vapor Pressure readings as high a 9.7 psi, the DOT now requires Bakken to be tested frequently enough to ensure that the crude is classified properly according to DOT classes; and with respect to crude with Bakken characteristics, require it to be handled as hazardous material in Packing Group I or II. The rule applies to those who provide the crude to the railroad carrier. The consequences of violation? Civil penalties of up to $175,000 for each violation or for each day of violation, in addition to criminal fines and imprisonment of up to ten years.
What about the trains? The Department of Transportation issued no new rules or advisories regarding the integrity of tank cars or the safe operation of the rail system. Trains are not supposed to derail and tank cars puncture.
Effective new rules? The classification and hazardous material packing group may not fully account for the types of vapor emitted by Bakken crude. The new rules of course address nothing concerning tank cars or railroad movements. Perhaps the real issue is capital cost: who will bear the cost of modifying and upgrading infrastructure and rolling stock as needed to improve protection. More to come.
Tim Howard Law 