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Judge Tosses Out Massive Ground Poisoning Class Action Against Dow Chemical

Earlier this year, in Wal-Mart v. Dukes, the Supreme Court drastically limited the ability of plaintiffs who all share a similar injury to join together in a class action to hold major lawbreakers accountable for their actions. Thanks to this precedent, Dow Chemical just convinced a state judge in Michigan to strip over one hundred landowners of their right to join together to hold the chemical giant accountable for poisoning their land:

Operations at Dow’s Midland plant have spread dioxin — a highly toxic and cancer-causing byproduct of the chemical manufacturing process — and other chemicals, through the Tittabawassee and Saginaw Rivers and into Lake Huron. Flooding of the rivers downstream from Dow has deposited dioxin-laden sediments on properties in the floodplain.

Sampling of floodplain properties has revealed dioxin contamination at levels thousands of times higher than allowed by Michigan and prompted state health officials to warned [sic] residents to keep children from playing in dirt near their homes, to wear masks while mowing their lawns, to avoid eating fish and livestock raised in the floodplain and to take other precautions. [...]

The plaintiffs claim that they are not able to fully use their properties because of the contamination and that their properties have lost value. [...] In an opinion released Tuesday [Judge Leopold] Borello reversed his earlier approval of class status for the group.

He said that the case met the Michigan guidelines for class standards but that the recent U.S. Supreme Court case Wal-Mart v. Dukes has created a new rules for what a group must have in common with one another in order to be considered a class.

Judge Borello’s decision to strip away Dow Chemical’s victims’ ability to bring a class action is obviously wrong, because Wal-Mart was a federal case and has nothing to do with whether a Michigan state court can certify a class action. Nevertheless, this decision is an ominous sign for Michiganders’ ability to hold corporations accountable in the future. The Michigan Supreme Court is dominated by a conservative, pro-corporate majority that could be just as eager to protect companies like Dow Chemical as the U.S. Supreme Court was to protect Walmart. So, while Judge Borello’s opinion is wrong under current law, it could also prove prescient.

If this turns out to be the case, it would be a terrible blow for the many people in Michigan who have literally been fighting Dow Chemical’s toxic legacy for decades. Without the ability to bring a class action, each owner of land poisoned by Dow will need to hire their own attorney, often with their own meager personal funds, while Dow will be able to pool its massive resources to turn armies of lawyers against their victims.

NEWS FLASH

Dirty Oil, Dirty Money, Dirty Votes | U.S. House members who supported keeping tax subsidies for oil companies in votes this year received a total of $1.2 million from oil PACs in the first six months of 2011, according to Public Campaign Action Fund analysis of data from the Federal Election Commission (FEC). Additionally, 94 percent of House oil PAC money recipients in the first six months of 2011 voted to keep the subsidies.

Update

Exxon is the top oil and gas political contributor in 2011 ($384,030), followed by Koch Industries ($318,800).

As Oklahomans Die, Inhofe Mocks Killer Heat Wave

The heat wave now battering much of the nation is centered on Oklahoma, where record heat and drought have crippled the state for the entire summer. With August on the way, there is no end in sight. The prolonged heat — Oklahoma City has been above 100°F for 30 days this summer — has probably killed over a dozen Oklahoma residents:

The sustained heat has taxed local water systems and claimed at least five lives, with another eight deaths possibly being caused by the heat, authorities said.

The oil-rich state is also the epicenter of global warming denial, led by its senior U.S. Senator, Jim Inhofe (R-OK). The oil-funded senator has a long history of finding humor in the misery caused by extreme weather disturbed by greenhouse pollution, including the record snowstorms of this winter. This deadly heat wave is no exception. In a tweet on Thursday, Inhofe’s press office mocked the killer heat, arguing that Al Gore could cool it off:

Perhaps we need to hear a little more from Al Gore to cool things off!

The tweet links to the Wikipedia page on “The Gore Effect,” which is the climate-denier claim that weather and appearances by Al Gore are linked. The claim, of course, lacks any sense whatsoever, but that’s never been a burden for Inhofe.

NEWS FLASH

Malcolm Turnbull: Accepting Climate Science Isn’t ‘Incipient Bolshevism’ | “If Margaret Thatcher took climate change seriously and believed we should take action to reduce global greenhouse emissions, then taking action and supporting and accepting the science can hardly be the mark of incipient Bolshevism,” Australia’s former Liberal Party leader Malcolm Turnbull said in a speech this week. “Having said that, it is undoubtedly correct that there has been a very effective campaign against the science of climate change by those opposed to taking action to cut emissions – many because it is not in their own financial interests – and that this has played into the carbon tax debate.”

Justice

West Virginia Judges Refuse To Dismiss Lawsuit Accusing Massey Energy Of Poisoning Water Supplies

A slurry pond in Brushy Fork, WV

A three-judge panel in Wheeling, West Virginia yesterday denied Massey Energy’s requests to dismiss a law suit alleging that the company contaminated multiple water supplies by dumping more than 1 billion gallons of toxic coal slurry into worked-out underground coal mines between 1978 and 1987. After a “contentious day-long hearing,” the judges denied requests to sanction the coal company for taking too long to produce evidence but allowed the trial to continue despite a detailed request for dismissal from the company.

More than 700 residents of four West Virginia towns allege that Massey and one of its subsidiaries dumped 1.4 billion gallons of slurry — the by-product of washing coal to make it “cleaner” — into the abandoned underground mines. The residents’ lead attorney, Van Bunch, claimed that Massey continued pumping the slurry underground even though the company knew it would leak into the water supply:

Bunch argues that when one underground void was full, Massey simply diverted the flow to another one until the slurry levels dropped – apparently migrating from one coal seam down into another.

They knew the slurry would escape because it did on several occasions,” Bunch said, claiming the company failed to properly seal the mine voids to prevent that migration.

It was, he argued, “calculated, long-term methodology” to dispose of Massey’s waste, dupe regulators about the extent of its operations and endanger neighboring communities solely to save money.

While Massey claims to have stopped injecting the slurry in 1987, the residents allege that the practice may have continued for as many as two decades after that. The plaintiffs also claim that, in addition to contaminated water supplies, constant exposure to toxic chemicals in the slurry is to blame for birth defects, developmental disabilities, and other illnesses. The common contaminants in coal slurry have been linked to multiple health problems — including birth defects, cancer, and respiratory illnesses.

Massey, which was sold to Alpha Natural Resources earlier this year, claims that the company neither misled regulators nor harmed nearby residents. The company, however, has a history of bemoaning Mining Health and Safety Administration (MSHA) regulations and covering up health and safety violations, actions that likely played a part in the deadly Upper Big Branch mine explosion in April 2010.

Massey could, however, still get out of the lawsuit. Judges are set to rule today whether it, as the parent company, can be held liable for the actions of its subsidiary. Massey claims Rawl Sales & Processing, was acting as an independent company. The trial is set to begin Aug. 1.

False Balance Exposed: BBC Gives Too Much Weight to Fringe Views on Climate Change, Independent Review Finds. Duh.

The BBC is to revamp its science coverage after an independent review highlighted weaknesses and concluded that journalists boosted the apparent controversy of scientific news stories such as climate change, GM crops and the MMR vaccine by giving too much weight to fringe scientific viewpoints….

Commissioned last year to assess impartiality and accuracy in BBC science coverage across television, radio and the internet, the review said the network was at times so determined to be impartial that it put fringe views on a par with well-established fact: a strategy that made some scientific debates appear more controversial than they were.

The criticism was particularly relevant to stories on issues such as global warming, GM and the MMR vaccine, where minority views were sometimes given equal weighting to broad scientific consensus, creating what the report describes as “false balance”.

Let’s file this Guardian story under,”Duh”!

The BBC’s coverage of climate change has deteriorated noticeably (see “Exclusive: Former correspondent and editor explains the drop in quality of BBC’s climate coverage” and links below).

Still, it is remarkable that one of the most highly regarded news organizations in the world would conduct this review in the first place.  In this country, the media coverage has also dropped in quantity and quality (see Silence of the Lambs: Media herd’s coverage of climate change “fell off the map” in 2010).  But there’s very little introspection here — and what there is often ends up as circular benchmarking (“we’re as good as everyone else”) or self congratulation (“we ran a couple of global warming stories”).

Every major media outlet in this country should do what the BBC did:

The review comprised an independent report by Professor Steve Jones, emeritus professor of genetics at University College London, and an in-depth analysis by researchers at Imperial College London of science coverage across the BBC in May, June and July of 2009 and 2010.

Jones likened the BBC’s approach to oppositional debates to asking a mathematician and maverick biologist what two plus two equals. When the mathematician says four and the maverick says five, the public are left to conclude the answer is somewhere in between.

Snap!

The extensive BBC review and content analysis, BBC Trust – Review of impartiality and accuracy of the BBC’s coverage of science, can be found here.  It is particularly impressive that Jones lays out

the mind‐set, and the tactics, of some (but not all) proponents of the idea that global warming is a myth into context.

They, with many others, practise denialism: the use of rhetoric to give the appearance of debate. This is not the same as scepticism, for a sceptic is willing to change his or her mind when provided with evidence. A denialist is not.

Precisely.  It is time for the media to stop pretending that the fringe deniers they keep citing are in any way part of the scientific process.  These deniers are pure rejectionists who have mastered rhetoric to twist the debate, but they have never been open to the actual evidence.

Here are the key parts of the BBC report on “false impartiality” and “false balance”:

Read more

NEWS FLASH

‘Haboob’ Hubbub: Arizonans Protest Common Meteorological Term As Evidence Of Muslim Infiltration | The dictionary defines a “haboob” as a thick dust storm that blows in deserts. Arizonans, however, define a “haboob” as a jihadist harbringer of Muslim infiltration. Hearing local weathermen call Arizona’s recent massive dust storms by a term they’ve used “for decades,” one Arizona resident said, “I am insulted that local TV news crews are now calling this kind of storm a haboob. [...] How do they think our soldiers feel coming back to Arizona and hearing some Middle Eastern term.” If this is suddenly the guiding principle on acceptable vocabulary, Arizonans should eye words like algebra, pajamas, khaki, coffee, giraffe, lemon, orange, mattress, zero, and alcohol with suspicion.

Power Companies: ‘The Time Is Now’ for Air Toxics Rule

Valeri Vasquez

Big oil and coal companies, and some utilities are offering Americans a “false choice” between jobs, economic stability, and public health as the debate over EPA’s Mercury and Air Toxics rule heats up. But a number of utilities across the country want the nation to know the truth:  The time for mercury reduction is now.

In a July 11th letter to Congressional leaders, 36 energy companies noted that delaying the air toxics rule will generate uncertainty among investors, as well as companies already preparing for compliance.  This uncertainty will slow investments and economic recovery.

The landmark standard will decrease mercury and acid gas emissions from coal-fired utilities by 91 percent, and slash sulfur dioxide (SO2) pollution by 55 percent.  It is slated to go final on November 16th. The rule is projected to save 17,000 lives and prevent 11,000 heart attacks and 120,000 asthma attacks annually—all while providing $140 billion in health benefits every year. A University of Massachusetts study found that together with the Clean Air Transport rule, the air toxics rule will create 1.4 million jobs over the next five years. So far, more than 639,000 Americans have expressed their support for the rule during the public comment period due to end August 4th.

Even so, some of the nation’s worst polluters are trying to delay these health protections. Utilities like Southern Company and DTE claim that it will be too difficult to install mercury reduction equipment by a 2015 compliance date, even though the law was passed 20 years ago, and the first standards were proposed seven years ago. These recalcitrant companies threaten job cuts, power reliability, and economic impacts if the three year timeline is not extended. Meanwhile, the coal-fired power plants responsible for 40 percent of mercury pollution in the United States continue to spew an additional 772 million pounds of toxic chemicals into playgrounds, backyards, and lungs every year.

A CAP analysis revealed that coal fired power plants without pollution controls are more than 50 years old, on average.  Yet some utilities are still unwilling to modernize them. These outmoded entities are countered by the chorus of power companies who understand that the new mercury standards are not only achievable, they’re also good for business.

Read more

July 22 News: Anniversary of Climate Bill’s Official Death; California Acts to Meet Clean Energy Standard; White Roofs

A round-up of climate and energy news. Please post other stories below.

Climate bill dead, so key players move on

One year ago Friday, Senate Majority Leader Harry Reid ended the climate bill’s misery.

“It’s not a happy anniversary,” said Sen. Joe Lieberman, the Connecticut independent who has co-sponsored nearly all the major global warming bills debated over the past decade.

Read more

FLASHBACK: As Governor Of Massachusetts, Romney Pushed Carbon ‘Pollutant’ Regulations

Former Mass. Gov. Mitt Romney is now claiming carbon is not a pollutant.

Presidential candidate and former Massachusetts Gov. Mitt Romney (R) told members of a New Hampshire town hall last week, “I don’t think carbon is a pollutant in the sense of harming our bodies.” His campaign further explained his remarks, saying that “Gov. Romney does not think greenhouse gases are pollutants within the meaning of the Clean Air Act, and he does not believe that the EPA should be regulating them.”

Romney’s recent position not only contradicts that of the Obama administration, but that of his own administration when he served as governor.

While in office, Romney pushed state regulations aimed at enforcing emissions standards on power plants for four “pollutants,” including carbon dioxide. Here is an excerpt from the regulation, 310 CMR 7.29, as it stood in May of 2004, over a year after Romney took office:

The purpose of 310 CMR 7.29 is to control emissions of nitrogen oxides (NOx), sulfur dioxide (SO2), mercury (Hg), carbon monoxide (CO), carbon dioxide (CO2) and fine particulate matter (PM 2.5) (together “pollutants“) from affected facilities in Massachusetts. 310 CMR 7.29 accomplishes this by establishing output-based emission rates for NOx, SO2 and CO2 and establishing a cap on CO2 and Hg emissions from affected facilities.

After the Department of Environment instigated the broader regulation 310 CMR 7.29 to clean up the state’s “Filthy Five” power plants in 2001, the Romney administration took the initiative on developing the emission limits and implementation schedule for carbon dioxide. Romney’s advisers included Harvard University professor John Holdren, now Obama’s top science adviser.

At a 2003 press conference at Pacific Gas and Electric’s power plant in Salem, Massachusetts, Romney publicly promised that he would “enforce without compromise” the emissions regulations. While announcing his decision to deny PGE’s request for more time to comply with the new standards, he attacked the power company for dragging its heels with regards to 310 CMR 7.29: “I will not create jobs or hold jobs that kill people. And that plant kills people.”

In his 2004 Climate Protection Plan, Romney promoted his anti-pollution scheme:

With their strong advocacy and support, Massachusetts became the first state in the nation to finalize four-pollutant (“4P”) regulations in 2001, requiring reductions in nitrogen oxides, sulfur dioxides, mercury, and carbon dioxide for our older power plants.

In 2005, Romney proudly announced “strict state limitations on carbon dioxide (CO2) emissions from power plants” using a cap-and-trade plan:

Massachusetts continues to be committed to improving air quality for all our citizens. These carbon emission limits will provide real and immediate progress in the battle to improve our environment. They help us accomplish our environmental goals while protecting jobs and the economy.”

After environmentalists criticized Romney for his stance on a wind farm project, former press secretary Julie Teer defended her boss’ environmental record in a 2005 email by citing “his aggressive enforcement of the Filthy Five regulations.”

Romney is now painting himself as a anti-regulation skeptic, but his record on carbon pollution is practically indistinguishable from Obama administration policy.

Sarah Bufkin

NEWS FLASH

GOP Votes to Ban Funding to Help Poor Countries Adapt to or Mitigate Climate Change |  

Republicans in the House Foreign Affairs Committee voted yesterday to stop all funding for climate change adaptation and mitigation efforts in developing countries. The amendment to a State Department Authorization bill, introduced by Florida Republican Connie Mack, would block any funding of the Global Climate Change Initiative – causing the U.S. to back down on its global commitments to the poorest countries impacted by climate change and further damaging the country’s credibility in climate negotiations.

Yesterday’s vote is far from the last word, however. The Senate will still have a say on the matter, and it’s less likely that such an amendment would pass.

Related Post:  Gingrich sums up conservative ethos: “I am not a citizen of the world! I think the entire concept is intellectual nonsense and stunningly dangerous.”

Food-Based Biofuels Are Helping Drive Up Food Prices

Many factors contribute to rising prices of food: Demand from rapidly-growing developing countries; droughts; energy prices; the value of the dollar; and, as a new report from Purdue University concludes, ethanol production.

While the Purdue researchers are careful to explain the phenomenon is caused by a combination of all these factors, the report targets two main culprits:  Chinese demand for soybeans and American ethanol. In 2010 and into this year, 27% of the U.S. corn crop went toward ethanol — up from 10% in 2005 and 2006.

[T]he demand surges from biofuels and Chinese soybean purchases appear to be persistent. While the demand shifts to date are expected to persist, the rate of increase in demand growth is expected to slow as corn biofuels mandates are reached and as China has built adequate soybeans stocks levels. This slowing of the demand surges may give world supply a better opportunity to catch up in coming years. Other events—such as additional demand growth, the degree of supply response, and macroeconomic variables—will all be important in determining how this cycle plays out.

[T]aking up around 27% of the corn crop (net of the by-product credit), there is little doubt that biofuels play a role in the corn price level and variability, and this has spilled over into other commodity markets. The RFS2 has been important in establishing ethanol production capacity and the minimum biofuels demand for corn realized today.

The researchers found, “Market inelasticity—a reduction in the responsiveness of prices to demand and supply forces—is one of the key mechanisms in today’s commodity markets.” They offer this remarkable chart of the  soaring amount of US crop acreage required to produce ethanol and soybeans for China:

Read more

GOP Demagoguing Raises Cost of Meeting EPA Standards

by Michael Livermore, executive director of the Institute for Policy Integrity

When faced with regulation, industry will generally choose the cheapest way to comply.  As long as they achieve stringent pollution goals, this is a good thing:  Economically efficient rules get less resistance and blowback than those that create unnecessarily heavy burdens on business.

So it makes sense for EPA to choose more flexibility whenever legally possible.  But in upcoming proposals to control greenhouse gases, some signs point to a political calculation that may steer the agency away from this tactic.

Using authority under the Clean Air Act, EPA is expected to propose greenhouse gas standards for power plants and refineries. Under the rules, new and existing sources will likely be required to achieve some kind of emissions reductions, but how, and how much, is still very much up in the air.

Legally, the government has wide legal latitude to use a range of flexibility mechanisms to keep costs down, and thereby set stronger standards.  Certain sections of the Clean Air Act state with considerable certainty that the agency may consider a range of options in setting standards, including economic incentives and market mechanisms.

In a recent study, several think tanks (including Policy Integrity) found a number of options to make the anticipated rule more flexible.  Programs like tradable performance standards or emissions budgets could most likely be used to regulate existing sources.  EPA and the states should also be able to allow trading between different regulated source types and utilize flexible tools like allowance banking and price floors.

EPA should take advantage of this considerable leeway to allow industry to reduce their pollution as cheaply as possible. Decades’ worth of research has shown that environmental regulations that allow for flexible compliance are most effective at keeping costs down and promoting innovation. And when costs come down, stronger environmental targets can be achieved.

Despite the no-brainer status of this decision, partisan politics seems to have gotten in the way.

Read more

Clean Start: July 22, 2011

Welcome to Clean Start, ThinkProgress Green’s morning round-up of the latest in climate and clean energy. Here is what we’re reading. What are you?

This is our Munich moment,” Britain’s Energy and Climate Change Minister Chris Huhne said of international efforts to find a successor to the United Nations Kyoto Protocol on greenhouse pollution. [Reuters]

Russia is prospecting new claims for offshore oil and gas drilling in the Arctic Ocean as the polar ice recedes due to the burning of oil and gas. [Voice of Russia]

A wildfire has consumed more than 300,000 acres in southeast Georgia, 11 weeks after it was sparked by lightning in the drought-stricken Okefenokee Swamp. [AP]

The heat wave appears to have slowed to an unbearable crawl across the Great Lakes and Northeast, and no relief from the triple-digit temperatures is expected until Saturday. [OurAmazingPlanet]

The heat wave has killed at least three people in metropolitan Detroit. [WDIV]

At least one person died, and dozens sought medical treatment in Wisconsin as the result of this week’s heat wave. [WHBL]

No end to the heat wave is in sight as Oklahoma prepares to enter what is traditionally its hottest month of the year. [Oklahoman]

Fox News built a segment around a press release from Sen. Jim Inhofe (R-OK) declaring EPA grants to foreign nations the “Outrage Of The Year.” [Media Matters]

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