Thursday, October 25, 2012

Oxfam America Seeks To Intervene In Challenge To SEC’s New Extractive Industry Disclosure Regulation

On behalf of Oxfam America, we have filed a Motion to Intervene in a suit filed by the American Petroleum Institute and others challenging a new regulation governing payments for the extraction of natural resources. The “Cardin-Lugar” provision of the Dodd-Frank Wall Street Reform Act directs the Securities and Exchange Commission (SEC) to issue regulations mandating that publicly traded companies disclose payments they make to governments - at home and abroad - associated with extracting oil, natural gas, and minerals.  The SEC recently issued implementing regulations requiring these disclosures, which will both provide vital information to investors while at the same time allowing people in communities where these natural resources are found, and their international allies, to hold governments accountable for natural resource revenues.  API has challenged the regulation on First Amendment and other grounds, and we represent Oxfam in defending the regulation.  Our motion to intervene is here.

Lawsuit Filed To Stop The National Park Service From Killing Deer In Rock Creek Park

Today we filed a lawsuit on behalf of local D.C. residents and In Defense of Animals to stop the National Park Service (NPS) from killing white-tailed deer in Rock Creek Park this winter. 

Our complaint alleges that in choosing to kill native wildlife for the first time since the Park was established in 1890 NPS is violating the law that created the Park, which requires NPS to preserve wildlife in “its natural condition, as nearly as possible.”  Because there are less drastic ways to control the deer population, including fencing and contraception – successfully used to control wildlife populations in several other areas in the country, such as Fire Island National Seashore in New York –   NPS has failed to carry out its statutory mandate. 

The plaintiffs further allege that the Park Service failed to consider how luring hundreds of deer to bait stations at night to be shot by guns and arrows will impair the overall character of the Park as an oasis of serenity and peace in the middle of our nation’s capital, in violation of the National Environmental Policy Act.

Follow the links for our complaint and a press release.

Monday, October 22, 2012

Ninth Circuit Rules For Conservation Groups in Pipeline Dispute

In a case we litigated on behalf of the Center for Biological Diversity, Defenders of Wildlife, and others, the U.S. Court of Appeals for the Ninth Circuit has agreed with our position that the massive Ruby Pipeline Project – a 678-mile natural gas pipeline extending from Wyoming to Oregon – was approved by the federal government in violation of the Endangered Species Act (ESA).   The Court held that the determination by the Fish and Wildlife Service that the pipeline – which crosses 209 rivers and streams that support federally endangered and threatened fish species – will not jeopardize listed species was improperly based on purported protective measures for the species that were set forth in a “conservation plan” that was not enforceable under the ESA.   The Court also held that the Service failed properly to take into consideration the impacts of the project on groundwater resources.  A copy of the ruling is attached here.

Wednesday, October 17, 2012

Comments Filed on Behalf of Conservation Groups for Changes at the Criterion Wind Project

On behalf of a coalition of eight conservation organizations, MGC recently submitted comments to the U.S. Fish and Wildlife Service urging that the agency take action at the Criterion Wind Project in Western Maryland to reduce bird and bat mortality. The comments were submitted in response to a draft Environmental Assessment, an application for an Incidental Take Permit, and a proposed Habitat Conservation Plan at the wind energy facility that currently holds the highest per-turbine bird mortality rate ever documented in North America. The groups’ primary concerns reference violations of the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), Migratory Bird Treaty Act (MBTA), and the Bald and Golden Eagle Protection Act (BGEPA). A press release from American Bird Conservancy, one of the organizations signing onto our comments, can be read here, and the comments submitted to the agency can be downloaded here.

Wednesday, October 10, 2012

Brief Calls for Vacating Key Approvals of Cape Wind to Protect Wildlife

Today, we filed our opening brief in a case challenging the authorization of the Cape Wind project, a massive wind power facility proposed for waters off the coast of Massachusetts, on behalf of Public Employees Environmental Responsibility, Three Bays Preservation, Cetacean Society International, the Alliance to Protect Nantucket Sound, and other organizations and individuals.

We demonstrate that federal agencies’ authorizations for the project violate the Endangered Species Act and Migratory Bird Treaty Act.

Our brief highlights critical documents in the administrative record that reveal:
  • The Fish and Wildlife Service determined that temporary, seasonal shutdowns were necessary to protect endangered and threatened birds, but removed the protections after the developer determined they were too costly.  Of particular importance, the Fish and Wildlife Service never made an independent determination that absent such protections, the spinning turbine blades would not jeopardize the continued existence of the protected species– an error compounded by the fact that no effective mechanisms exist for monitoring the deaths of birds over open water.
  • Despite their awareness that the Migratory Bird Treaty Act prohibits killing even a single migratory bird, and projections that the wind power facility will kill thousands or tens of thousands of birds, the agencies authorized the project without taking measures to reduce the bird kill or require the developer to get a permit.
  • The National Marine Fisheries Service rejected the notion that tens of thousands of boat crossings associated with the facility would put North Atlantic right whales at risk, even though being hit by boats is the primary source of mortality for the highly imperiled species.  After discovering the whales in areas where high-speed boats will cross, the Service came to the absurd conclusion that their presence in the area somehow "supports” a conclusion they won’t be there in the future.  The agency imposed no speed limits on the boats at all.
  • The agencies allowed the developer to increase the duration of preconstruction surveys ten to twenty times over a previous proposal without analyzing how the more intensive surveys will harm endangered sea turtles present in Nantucket Sound.

Repeatedly citing the agencies’ own administrative records to demonstrate that key decisions were rushed by politics, our brief calls on the Court to vacate approval of the project.

Judge To Hold Hearing On Corrective Statements Remedy For Tobacco Companies’ Massive Fraud

In our ongoing litigation against major cigarette companies – stemming from a 2006 decision that found them responsible for massive consumer fraud – the court has scheduled a hearing for October 15, 2012 to consider the content of “Corrective Statements” the companies must air in TV Ads, major newspapers, and on their products.  The government has proposed accurate statements, such as “cigarettes are a finely-tuned nicotine delivery device designed to addict people,” and “smoking reduces circulation, triggers asthma, and can cause infertility and erectile dysfunction.” We will be supporting these proposals on behalf of six public health organizations that intervened in the suit to advocate for strong and effective remedies.  The Court recently invited the parties to submit supplemental briefs in advance of the hearing, and our briefs can be found here and here.

Firm Files Brief Supporting Its Claim Against Feld Entertainment

On Friday MGC filed an opposition to a motion by Feld Entertainment, Inc. (“FEI”) to dismiss MGC’s abuse of process counterclaim, which was filed in a SLAPP suit FEI brought against the firm and several leading animal protection organizations, in the aftermath of their lawsuit contending that FEI’s treatment of Asian elephants violates the Endangered Species Act’s prohibition on “harming” members of an endangered species without a permit.   The ESA case was dismissed on standing grounds, and so the court never addressed the merits of our claim in the ESA case that various FEI practices – particularly striking the elephants with bullhooks and keeping them chained for many hours at a time – violate the ESA.   Our abuse of process counterclaim contends that FEI’s real purpose in bringing its retaliatory lawsuit is to punish and deter further criticism and advocacy directed at such practices.