The Colorado trial court dismissed a class action lawsuit brought by residents of Battlement Mesa, CO attempting to stop natural gas development using fracking in their community. The court rejected the residents' novel legal theory of "anticipatory nuisance", which would have allowed claims to be brought now for potential future harms from fracking rather than requiring injuries to actually occur. Dismissal of the case represents a setback for plaintiffs pursuing this strategy to facilitate future fracking claims.
Letter Sent by 25 Anti-Fracking Organizations to Gov. Tom Corbett on DEP Wate...Marcellus Drilling News
A letter sent by 25 known anti-drilling groups to PA Gov. Tom Corbett rehasing unsubstantiated allegations that the state Dept. of Environmental Protection withholds testing for certain chemicals that may be tied to shale gas drilling.
We looked at the data. Here’s a breakdown of some key statistics about the nation’s incoming presidents’ addresses, how long they spoke, how well, and more.
My books- Hacking Digital Learning Strategies http://hackingdls.com & Learning to Go https://gum.co/learn2go
Resources at http://shellyterrell.com/emoji
Artificial intelligence (AI) is everywhere, promising self-driving cars, medical breakthroughs, and new ways of working. But how do you separate hype from reality? How can your company apply AI to solve real business problems?
Here’s what AI learnings your business should keep in mind for 2017.
Letter Sent by 25 Anti-Fracking Organizations to Gov. Tom Corbett on DEP Wate...Marcellus Drilling News
A letter sent by 25 known anti-drilling groups to PA Gov. Tom Corbett rehasing unsubstantiated allegations that the state Dept. of Environmental Protection withholds testing for certain chemicals that may be tied to shale gas drilling.
We looked at the data. Here’s a breakdown of some key statistics about the nation’s incoming presidents’ addresses, how long they spoke, how well, and more.
My books- Hacking Digital Learning Strategies http://hackingdls.com & Learning to Go https://gum.co/learn2go
Resources at http://shellyterrell.com/emoji
Artificial intelligence (AI) is everywhere, promising self-driving cars, medical breakthroughs, and new ways of working. But how do you separate hype from reality? How can your company apply AI to solve real business problems?
Here’s what AI learnings your business should keep in mind for 2017.
The Article Critique is required to be a minimum of two pages to a m.docxSANSKAR20
The Article Critique is required to be a minimum of two pages to a maximum of four pages, double-spaced, APA style,
from the journals and articles available in our CSU Library Databases. The article should deal with any of the material
presented in the first three units of this course. The article itself must be more than one page in length. The article critique
should include the following components:
A brief introduction of the article
Analysis of the key points in the article
Application and comparison of some points in the article that might be applied to the company you work for, or
have worked for
Summary of the article's conclusions and your own opinions
the article is:
Policy fíriefing
Senate Bill Aims to Prevent Chemical
Contamination of Surface Water
IHE CHEMICAL
spill that
' recently occurred in West
Virginia and interrupted
water deliveries to approximately
300,000 of that
state's residents has led to the introduction
of federal legislation aimed at preventing
the recurrence of such events.
Although improved protection of surface
water enjoys broad support, questions
have arisen as to who should oversee
and fijnd the additional regulatory
efforts called for in the bill.
On January 9 it was discovered that
thousands of gallons of chemicals used in
coal processing had leaked from storage
facilities at a tank farm located along the
Elk River in Charleston, West Virginia.
The chemicals entered the waterway approximately
1.5 mi upstream of a public
water supply intake, forcing officials
to recommend that residents of a ninecounty
area in and around Charleston
not use their drinking water. Lasting for
more than a week, this situation caused
considerable concern about health effects
and spurred calls for regulatory
protections.
On January 27 Senator Joe Manchin
(D-West Virginia) introduced the
Chemical Safety and Drinking Water
Protection Act of 2014 (S. 1961), legislation
that aims to protect surface water
from contamination from chemical
storage facilities. The bill would revise
the Safe Drinking Water Act to establish
state programs for overseeing and
inspecting chemical storage facilities
that are deemed to pose a risk to public
water sources. Within one year of enactment
of the legislation, states would
have to set requirements for chemical
storage facilities covered by the new
programs. These requirements would
address such topics as "acceptable standards
of good design, construction, or
maintenance," along with leak detection,
spill and overfill control, inventory
control, inspections of facility integrity.
and life-cycle maintenance, according to
the legislation.
Additional requirements would pertain
to emergency response and communication
plans, employee training and
safety plans, and the financial responsibility
of the owners of chemical storage
facilities. States would share with drinking
water providers the emergency response
plans fo.
Erin Deady
This session will continue the discussion of the Southeast Florida Regional Climate Change Compact in SE Florida. Understanding and preparing for climate change on a local level is among the most significant and timely sustainability issues facing Florida and its vulnerability to those impacts. The issues cross the social, built, and natural environments and the jurisdictional lines of local government. The session will further explore national and state policy and funding issues, as well as legal and organizational aspects of addressing climate change impacts.
Policy fíriefingSenate Bill Aims to Prevent ChemicalCont.docxLeilaniPoolsy
Policy fíriefing
Senate Bill Aims to Prevent Chemical
Contamination of Surface Water
IHE CHEMICAL spill that
' recently occurred in West
Virginia and interrupted
water deliveries to approx-
imately 300,000 of that
state's residents has led to the introduc-
tion of federal legislation aimed at pre-
venting the recurrence of such events.
Although improved protection of sur-
face water enjoys broad support, ques-
tions have arisen as to who should over-
see and fijnd the additional regulatory
efforts called for in the bill.
On January 9 it was discovered that
thousands of gallons of chemicals used in
coal processing had leaked from storage
facilities at a tank farm located along the
Elk River in Charleston, West Virginia.
The chemicals entered the waterway ap-
proximately 1.5 mi upstream of a pub-
lic water supply intake, forcing officials
to recommend that residents of a nine-
county area in and around Charleston
not use their drinking water. Lasting for
more than a week, this situation caused
considerable concern about health ef-
fects and spurred calls for regulatory
protections.
On January 27 Senator Joe Man-
chin (D-West Virginia) introduced the
Chemical Safety and Drinking Water
Protection Act of 2014 (S. 1961), leg-
islation that aims to protect surface wa-
ter from contamination from chemical
storage facilities. The bill would revise
the Safe Drinking Water Act to estab-
lish state programs for overseeing and
inspecting chemical storage facilities
that are deemed to pose a risk to pub-
lic water sources. Within one year of en-
actment of the legislation, states would
have to set requirements for chemical
storage facilities covered by the new
programs. These requirements would
address such topics as "acceptable stan-
dards of good design, construction, or
maintenance," along with leak detec-
tion, spill and overfill control, inventory
control, inspections of facility integrity.
and life-cycle maintenance, according to
the legislation.
Additional requirements would per-
tain to emergency response and commu-
nication plans, employee training and
safety plans, and the financial responsi-
bility of the owners of chemical storage
facilities. States would share with drink-
ing water providers the emergency re-
sponse plans for chemical storage facili-
ties located within the same watershed,
along with an inventory of each chemi-
cal stored at each facility.
Under S. 1961 states also would im-
pose minimum inspection requirements
for chemical storage facilities covered
by the new program. In particular, fa-
cilities regarded by states as potential
contamination sources under existing
drinking water protection plans would
have to be inspected every thtee years,
while all other facilities would have to
be inspected every five years. The legis-
lation does not stipulate the entity that
would conduct such inspections. What
is more, ownership of chemical storage
facilities covered by the state ptogtams
could not be transferred unless the faci.
On June 21, 2016, United States District Judge Scott Skavdahl granted BakerHostetler’s petition for review of final agency action and declared the Bureau of Land Management’s (BLM’s) hydraulic fracturing rule unlawful. The court’s judgment sets aside BLM’s hydraulic fracturing rule.
The U.S. Court of Appeals for the Sixth Circuit on Oct 9, 2015 issued a stay on the odious and overreaching Environmental Protection Agency (EPA)/Army Corps of Engineers' (ECA) so-called update that redefines Waters of the United States (WOTUS) to include just about everything, including mud puddles. Some 13 states sued to stop the new rule. This action keeps the rule from being adopted in any of the 50 states until a lawsuit, brought by the 13 states, has a chance of playing out in court.
The following documents were submitted by the Republic of Ecuador to the international arbitration hearing the case between Chevron/Texaco and the Republic. These documents further show the impact of Chevron/Texaco’s decades’ long oil pollution on the people of Ecuador.
Hospital Liability via Negligent Credentialing After Adams: Now What?Joey Wright
Article in Kentucky Common Defense detailing the Kentucky Supreme Court's recent decision to recognize negligent credentialing in Kentucky and the effect of that decision.
The Article Critique is required to be a minimum of two pages to a m.docxSANSKAR20
The Article Critique is required to be a minimum of two pages to a maximum of four pages, double-spaced, APA style,
from the journals and articles available in our CSU Library Databases. The article should deal with any of the material
presented in the first three units of this course. The article itself must be more than one page in length. The article critique
should include the following components:
A brief introduction of the article
Analysis of the key points in the article
Application and comparison of some points in the article that might be applied to the company you work for, or
have worked for
Summary of the article's conclusions and your own opinions
the article is:
Policy fíriefing
Senate Bill Aims to Prevent Chemical
Contamination of Surface Water
IHE CHEMICAL
spill that
' recently occurred in West
Virginia and interrupted
water deliveries to approximately
300,000 of that
state's residents has led to the introduction
of federal legislation aimed at preventing
the recurrence of such events.
Although improved protection of surface
water enjoys broad support, questions
have arisen as to who should oversee
and fijnd the additional regulatory
efforts called for in the bill.
On January 9 it was discovered that
thousands of gallons of chemicals used in
coal processing had leaked from storage
facilities at a tank farm located along the
Elk River in Charleston, West Virginia.
The chemicals entered the waterway approximately
1.5 mi upstream of a public
water supply intake, forcing officials
to recommend that residents of a ninecounty
area in and around Charleston
not use their drinking water. Lasting for
more than a week, this situation caused
considerable concern about health effects
and spurred calls for regulatory
protections.
On January 27 Senator Joe Manchin
(D-West Virginia) introduced the
Chemical Safety and Drinking Water
Protection Act of 2014 (S. 1961), legislation
that aims to protect surface water
from contamination from chemical
storage facilities. The bill would revise
the Safe Drinking Water Act to establish
state programs for overseeing and
inspecting chemical storage facilities
that are deemed to pose a risk to public
water sources. Within one year of enactment
of the legislation, states would
have to set requirements for chemical
storage facilities covered by the new
programs. These requirements would
address such topics as "acceptable standards
of good design, construction, or
maintenance," along with leak detection,
spill and overfill control, inventory
control, inspections of facility integrity.
and life-cycle maintenance, according to
the legislation.
Additional requirements would pertain
to emergency response and communication
plans, employee training and
safety plans, and the financial responsibility
of the owners of chemical storage
facilities. States would share with drinking
water providers the emergency response
plans fo.
Erin Deady
This session will continue the discussion of the Southeast Florida Regional Climate Change Compact in SE Florida. Understanding and preparing for climate change on a local level is among the most significant and timely sustainability issues facing Florida and its vulnerability to those impacts. The issues cross the social, built, and natural environments and the jurisdictional lines of local government. The session will further explore national and state policy and funding issues, as well as legal and organizational aspects of addressing climate change impacts.
Policy fíriefingSenate Bill Aims to Prevent ChemicalCont.docxLeilaniPoolsy
Policy fíriefing
Senate Bill Aims to Prevent Chemical
Contamination of Surface Water
IHE CHEMICAL spill that
' recently occurred in West
Virginia and interrupted
water deliveries to approx-
imately 300,000 of that
state's residents has led to the introduc-
tion of federal legislation aimed at pre-
venting the recurrence of such events.
Although improved protection of sur-
face water enjoys broad support, ques-
tions have arisen as to who should over-
see and fijnd the additional regulatory
efforts called for in the bill.
On January 9 it was discovered that
thousands of gallons of chemicals used in
coal processing had leaked from storage
facilities at a tank farm located along the
Elk River in Charleston, West Virginia.
The chemicals entered the waterway ap-
proximately 1.5 mi upstream of a pub-
lic water supply intake, forcing officials
to recommend that residents of a nine-
county area in and around Charleston
not use their drinking water. Lasting for
more than a week, this situation caused
considerable concern about health ef-
fects and spurred calls for regulatory
protections.
On January 27 Senator Joe Man-
chin (D-West Virginia) introduced the
Chemical Safety and Drinking Water
Protection Act of 2014 (S. 1961), leg-
islation that aims to protect surface wa-
ter from contamination from chemical
storage facilities. The bill would revise
the Safe Drinking Water Act to estab-
lish state programs for overseeing and
inspecting chemical storage facilities
that are deemed to pose a risk to pub-
lic water sources. Within one year of en-
actment of the legislation, states would
have to set requirements for chemical
storage facilities covered by the new
programs. These requirements would
address such topics as "acceptable stan-
dards of good design, construction, or
maintenance," along with leak detec-
tion, spill and overfill control, inventory
control, inspections of facility integrity.
and life-cycle maintenance, according to
the legislation.
Additional requirements would per-
tain to emergency response and commu-
nication plans, employee training and
safety plans, and the financial responsi-
bility of the owners of chemical storage
facilities. States would share with drink-
ing water providers the emergency re-
sponse plans for chemical storage facili-
ties located within the same watershed,
along with an inventory of each chemi-
cal stored at each facility.
Under S. 1961 states also would im-
pose minimum inspection requirements
for chemical storage facilities covered
by the new program. In particular, fa-
cilities regarded by states as potential
contamination sources under existing
drinking water protection plans would
have to be inspected every thtee years,
while all other facilities would have to
be inspected every five years. The legis-
lation does not stipulate the entity that
would conduct such inspections. What
is more, ownership of chemical storage
facilities covered by the state ptogtams
could not be transferred unless the faci.
On June 21, 2016, United States District Judge Scott Skavdahl granted BakerHostetler’s petition for review of final agency action and declared the Bureau of Land Management’s (BLM’s) hydraulic fracturing rule unlawful. The court’s judgment sets aside BLM’s hydraulic fracturing rule.
The U.S. Court of Appeals for the Sixth Circuit on Oct 9, 2015 issued a stay on the odious and overreaching Environmental Protection Agency (EPA)/Army Corps of Engineers' (ECA) so-called update that redefines Waters of the United States (WOTUS) to include just about everything, including mud puddles. Some 13 states sued to stop the new rule. This action keeps the rule from being adopted in any of the 50 states until a lawsuit, brought by the 13 states, has a chance of playing out in court.
The following documents were submitted by the Republic of Ecuador to the international arbitration hearing the case between Chevron/Texaco and the Republic. These documents further show the impact of Chevron/Texaco’s decades’ long oil pollution on the people of Ecuador.
Hospital Liability via Negligent Credentialing After Adams: Now What?Joey Wright
Article in Kentucky Common Defense detailing the Kentucky Supreme Court's recent decision to recognize negligent credentialing in Kentucky and the effect of that decision.
Connecticut Supreme Court Ruling Holds New Hope for Tobacco Victims
Evenson Article
1. Fracking Plaintiffs Can’t Anticipate A Nuisance
Law360, New York (September 25, 2012, 2:30 PM ET) -- In August, a Colorado trial court dismissed
Evenson v. Antero Resources,[1] a putative class action brought by Battlement Mesa, Colo., residents
attempting to stop natural gas development using the technique known as hydraulic fracturing or
“fracking” in their community.
Fracking involves injection of a fluid mixture, typically consisting primarily of water, sand and a very small
proportion of chemicals (typically less than 1 percent of the volume) into shale rock under high pressure
to crack the rock formation and release natural gas.
Potential environmental impacts from fracking have been the subject of substantial controversy. Initially,
concerns focused on potential groundwater contamination, with either methane, as alleged in several
highly publicized cases in Dimock, Pa,[2] or fracking fluid constituents (some of which have been
classified as hazardous by regulators),[3] purportedly identified in a draft Environmental Protection
Agency report on Pavillion, Wyo., that was harshly criticized and the EPA subsequently backed away
from by agreeing to conduct additional testing.[4]
More recently, concerns have focused on potential air emissions from fracking operations and
earthquakes potentially associated with deep injection wells used to dispose waste water.
Fracking has spawned approximately four dozen private tort lawsuits claiming personal injury, medical
monitoring, property damage and various forms of injunctive relief.
Of the fracking tort suits filed to date, Evenson was probably the most interesting because it was an
implicit test case for a novel legal theory — anticipatory nuisance. Plaintiffs did not explicitly characterize
Evenson as an anticipatory nuisance case, but the characterization is apt.
The plaintiffs cited one historical incident in which Antero allegedly received a notice of violation from
state regulators for hydrocarbon odors emanating from an existing well pad near Battlement Mesa. Most
of the plaintiffs allegations, however, were not related to past events or current alleged injuries, but the
plaintiffs’ contention that irreversible future harm was “reasonably certain” to occur as a result of fracking
operations yet to begin.
The plaintiffs relied heavily upon a “Health Impact Analysis" (HIA) commissioned by the Garfield County
Board of County Commissioners and prepared by the Colorado School of Public Health to support their
contention that future harm would probably occur as a result of fracking.
The HIA had two stated goals: to identify ways that proposed natural gas development “can affect the
health of Battlement Mesa residents;” and to develop recommendations “to minimize the potential health
impacts.”[5] The HIA concluded, “the health of Battlement Mesa residents will most likely be affected by
chemical exposures, accidents/emergencies resulting from industry operations, and stress-related
community changes.”[6] Using risk assessment techniques that are not designed to prove causation but
to identify potential impacts among the most sensitive members of the population, with wide margins of
safety built in, the HIA identified airborne exposures to chemicals released during fracking operations as
having the greatest potential impact on human health for residents living within a half mile of a well
pad.[7]
2. Fracking Plaintiffs Can’t Anticipate A Nuisance
As initially filed, Evenson asserted three claims for relief: diminished property value, medical monitoring
and equitable relief establishing a medical monitoring fund and imposing conditions on gas development
to prevent “hazardous spills, releases, emissions and discharges.”
In response to a motion to dismiss, the court noted that the status of medical monitoring as either a claim
or a remedy was uncertain under Colorado law but undoubtedly depended upon an allegation of
underlying tortious conduct by the defendant.[8] Similarly, the court reasoned that any stigma allegedly
associated with fracking that reduced property values was “not actionable” in itself, “absent a recognized
cause of action such as trespass or nuisance.” Concluding that the plaintiffs had failed to assert any
cognizable claims to support the requested relief, the court dismissed the initial complaint in its entirety,
with leave to amend.
The plaintiffs subsequently filed a First Amended Complaint that included a single claim — equitable relief
in the form of a permanent injunction prohibiting Antero from “conducing any oil or gas drilling activities” in
Battlement Mesa. The plaintiffs alleged that they had a “reasonable fear of imminent and substantial
harm.”
In addition to the HIA, the plaintiffs cited an alleged increase in breast cancer rates in six Texas counties
with substantial natural gas development, the EPA’s draft report concerning alleged groundwater
contamination in Pavillion, Wyo., and Antero’s alleged history of safety violations to support their claims.
According to the plaintiffs, the following alleged consequences of drilling were “reasonably certain” to
occur: exposure of the plaintiffs and their properties to “toxic and hazardous substances,” “noxious
malodors,” “environmental contamination and polluting events,” diminished property values, interference
with property rights and “significantly increased risk of contracting serious latent disease.”
Ruling on a second motion to dismiss, the court concluded that it lacked jurisdiction over the plaintiffs’
claims for several reasons.[9]
First, the court held that it lacked jurisdiction to grant the requested relief. To enjoin natural gas
development “would, in effect, revoke or preclude the issuance of a drilling permit by the Colorado Oil and
Gas Conservation Commission.” The court found that both Colorado’s Administrative Procedure Act and
Oil and Gas Conservation Act provided statutory mechanisms for seeking judicial review of any permits
issued to Antero. The court rejected the plaintiffs’ futility argument and refused to let plaintiffs make an
end run around the requirement that they exhaust their statutory remedies before pursuing tort remedies.
Second, the court held that the plaintiffs’ claims were not ripe and found that the plaintiffs’ claims were
contingent upon events that might not occur: Antero’s seeking and the commission granting drilling
permits. Similarly, the court noted that Antero’s alleged history of spills is “no guarantee that future
accidents will occur.” The court held that plaintiffs “cannot support tort claims until the injuries actually
occur or begin to occur.”
Dismissal of the Evenson case represents a significant setback for plaintiffs hoping to make new law to
facilitate future fracking claims. Anticipatory nuisance is a critical component of a strategy that, if
successful, would permit plaintiffs to bring claims now, rather than later, if and when an injury in fact
occurs.
3. Fracking Plaintiffs Can’t Anticipate A Nuisance
Moreover, this strategy maximizes the number of potential plaintiffs since there are more people
potentially at risk than there are people (if any) who will, in fact, ultimately be injured. And, by setting the
bar for proof of injury so low, an anticipatory nuisance theory maximizes the potential for a judicial finding
of commonality that could permit aggregation of claims in a class action.
The Evenson court’s rejection of this implicit anticipatory nuisance claim at the motion to dismiss stage,
particularly in this case, where the plaintiffs relied upon a neutral, third-party study purporting to find a
likelihood of future adverse health impacts in the precise community at issue, represents a significant
defense victory.
--By Jennifer Quinn-Barabanov, Steptoe & Johnson LLP
Jennifer Quinn-Barabanov is a partner in the Washington, D.C., office of Steptoe & Johnson LLP
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its
clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general
information purposes and is not intended to be and should not be taken as legal advice.
[1] Case No. 2011 CV 5118 (District Court, Denver County, CO) (Aug. 17, 2012 Order).
[2] E.g., Fiorentino v. Cabot Oil & Gas, Co., No. 3:09-cv-02284 (M.D. Pa.).
[3] U.S. House of Representatives, Minority Staff Report, Chemicals Used In Hydraulic Fracturing, at 8
(April 2011), available at
http://democrats.energycommerce.house.gov/sites/default/files/documents/Hydraulic%20Fracturing%20R
eport%204.18.11.pdf.
[4] Press Release, Wyoming Governor Matthew H. Mead, the Northern Arapaho and Eastern Shoshone
Tribes, and U.S. EPA Administrator Lisa P. Jackson, Statement on Pavillion, Wyoming Groundwater
Investigation.
http://yosemite.epa.gov/opa/admpress.nsf/20ed1dfa1751192c8525735900400c30/17640d44f5be4cef852
579bb006432de!OpenDocument.
[5] Draft Battlement Mesa HIA, Revision 1 (February 2011) (emphasis added), available at
http://www.garfield-county.com/environmental-health/battlement-mesa-health-impact-assessment-
draft2.aspx.
[6] Id.
[7] Id. at ES-II
[8] Case No. 2011 CV 5118 (District Court, Denver County, CO) (Dec. 22, 2011 Order).
[9] Case No. 2011 CV 5118 (District Court, Denver County, CO) (Aug. 17, 2012 Order).