The analysis in the following paper was written by Stewart Rhodes while at Yale Law School and was the winner of Yale’s Judge William E. Miller Prize for best paper on the Bill of Rights. Rhodes is the founder of Oath Keepers which on Christmas Day announced its participation in a bi-partisan drive to recall all three of Montana's congressional delegation for "violation of the oath of office," by voting for the blatantly unconstitutional NDAA National Defense Authorization Act, which allows the indefinite military detention of American citizens without charge or trial. Violation of the oath is one of the five narrow and specific grounds on which a recall in MT may be initiated.
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Cross-Posted from DeSmogBlog
Cross-Posted from DeSmogBlog
Cross-Posted from DeSmogBlog
The ever-wise Yogi Berra once quipped "It's like déjà vu all over again," a truism applicable to a recent huge decision handed down by the United States District Court for the District of Columbia.
Cross-Posted from DeSmogBlog
The southern half of Transcanada's Keystone XL tar sands pipeline is supposed to begin pumping up to 700,000 barrels of diluted bitumen per day through the Cushing, OK to Port Arthur, TX route within weeks. But is it ready to operate safely?
Public Citizen has released a chilling report revealing that the 485-mile KXL southern line is plagued by dents, faulty welding, exterior damage that was patched up poorly and misshapen bends, among other troubling anomalies.
In conducting its investigative report, "Construction Problems Raise Questions About the Integrity of the Pipeline," Public Citizen worked on the ground to examine 250 miles of the 485 mile pipeline's route. The group and its citizen sources uncovered over 125 anomalies in that half of the line alone. These findings moved Public Citizen to conclude the southern half of the pipeline shouldn't begin service until the anomalies are taken care of, and ponders if the issues can ever be resolved sufficiently.
Cross-Posted from DeSmogBlog
In a major ruling that's flown under the radar, the U.S. Court of Appeals for the Tenth Circuit - based in Denver, Colorado - decided not to grant the Sierra Club and Clean Energy Future Oklahoma a temporary injunction on the construction of the southern half of Transcanada's Keystone XL tar sands export pipeline.
The Court's decision hinged on an "injury" balancing test: Would Transcanada be hurt more financially from receiving an injunction? Had it lost, it would be stuck with one until Sierra Club, et al receive a U.S. District Court decision on the legality of the U.S. Army Corps of Engineers' decision to grant Transcanada a Nationwide Permit 12 (NWP 12) for construction of what's now called the Gulf Coast Pipeline in February 2012.
Or would ecosystems suffer even greater and potentially incalculable damage from the 485-mile, 700,000 barrels per day pipeline crossing 2,227 streams?
In a 2-1 decision, the Court sided with Transcanada, and by extension, the U.S. Army Corps of Engineers. The Court ruled, "the threatened environmental injuries were outweighed by the financial harm that the injunction would cause Transcanada."
Commenting on the case brought by Sierra Club, et al, Judge Jerome A. Holmes and Judge Paul J. Kelly, Jr. - appointees of President George W. Bush and President George H.W. Bush, respectively - shot down the arguments sharply.
U.S. Appeals Court for the 10th Circuit Judge Jerome A. Holmes; Photo Credit: The White House
Holmes and Kelly ruled that Sierra Club, et al failed to show how the pipeline will have a significant environmental impact despite the fact it's been deemed a "fuse to the biggest carbon bomb on the planet" by retired NASA climate scientist James Hansen.
Construction of Keystone XL's southern half - subject of significant grassroots activism by the Tar Sands Blockade and others - is now nearly complete. Tar sands dilbit is slated to begin to flow through it in early 2014.
NWP 12: "New Normal" for Tar Sands Pipeline Approval
After protestors succeeded initially in delaying Keystone XL, Big Oil has chosen a "new normal" stealth approval method: the non-transparent NWP 12.
This avoids the more strenuous National Environmental Protection Act permitting process overseen by the Environmental Protection Agency (EPA), which requires public hearings and public comments for major federal pipeline projects. NEPA compels the EPA to take comments into account in response throughout the Environmental Impact Statement phase, allowing robust public participation in the process.
Sierra Club Staff Attorney Doug Hayes explained in an interview with DeSmogBlog that NWP 12 is for utility projects with up to a half an acre of stream or wetland impacts, and has never been used for tar sands pipelines before Keystone XL's southern half.
The southern half of the pipeline was approved via Executive Order by President Barack Obama in March 2012, directly after Obama gave a speech in front of a Cushing, OK pipeyard.
President Barack Obama speaks in Cushing, OK in March 2013; Photo Credit: White House
"The Corps is abusing the nationwide permit program. Nationwide permits were intended to permit categories of projects with truly minimal impacts, not tar sands oil pipelines crossing several states," said Hayes.
Utilizing tricky legal loopholes, Transcanada used NWP 12 to push through Keystone XL's southern half in February 2012, calling each half acre segment of Keystone XL's southern half a "single and complete project." The Army Corps of Engineers agreed despite the fact that Transcanada refers to the pipeline at-large as the "Gulf Coast Pipeline project."
"What the Corps is doing is artificially dividing up these massive pipelines, treating them as thousands of individual projects to avoid environmental review," Hayes explained. "In this case, there were 2,227 crossings of federal waterways, so the Corps has treated the Gulf Coast Pipeline as 2,227 'single and complete projects,' each of which qualifies under NWP 12."
Sierra Club Staff Attorney Doug Hayes; Photo Credit: Sierra Club
Why, I asked Hayes?
"The Corps artificially treats these massive pipelines as thousands of individual projects so as to qualify under NWP 12 and avoid NEPA compliance."
NWP 12 has also been utilized by Enbridge for the Flanagan South Pipeline, a 600-mile, 600,000 barrels per day pipeline set to shuttle tar sands crude from Flanagan, IL to Cushing, OK, crossing over 2,000 streams. That pipeline is scheduled to begin operations in mid-2014, demonstrating how NWP 12 is the "new normal" way to fast-track domestic tar sands pipelines.
Dissent: Laws Violated, Economic Harm Transcanada's Fault
Perhaps the biggest irony of the Appeals Court decision is that Judges Holmes and Kelly barely grappled with the central issue of the legal challenge to begin with: using NWP 12 rather than going through the NEPA process.
"The majority opinion avoided addressing the legal questions that are central to this lawsuit - whether the Corps violated the law in permitting this pipeline - and instead it was based on how much money a delay in construction would cost TransCanada," said Hayes.
Though Judges Holmes and Kelly stayed mum about these issues, dissenting U.S. District Court for the District of Colorado Judge William Martínez - an Obama appointee - did not, pulling no punches in doing so.
U.S. District Court for the District of Colorado Judge William Martínez; Photo Credit: Judgepedia
"Given the totality of the circumstances...I believe the...Gulf Coast Pipeline required a comprehensive NEPA analysis," Martínez wrote.
"There are also no specific findings in support of the Corps' conclusion that the Gulf Coast Pipeline, as a whole, would have minimal cumulative impact. The failure to consider the cumulative effects of all of the water crossings involved in the Gulf Coast Pipeline violates the terms of NWP 12, and, therefore, the approval of the use of NWP 12 for construction of the Gulf Coast Pipeline violated the law."
Though Judges Holmes and Kelly grappled with the issue of water crossings - belittling the amount of water Keystone XL's southern half would cross over - Martínez said it's about much more than just water.
There is "real and signifcant harm caused by the actual construction of the pipeline, including the clearing of trees and vegetation, removing topsoil, filling wetlands, building access roads, and clearing an eighty-five foot construction right-of-way for the length of the pipeline," he stated.
Hayes agreed with this assessment, pointing to examples of things the Judges simply ignored in their assessment.
"[T]he court's balancing test ignored the host of environmental impacts associated with this pipeline, including the risks of tar sands oil spills," said Hayes.
"Remember that the 2010 tar sands pipeline spill in Michigan is still being cleaned up, and so far has cost over a billion dollars. It's a bit of a Catch-22 to say that this is all just about a few acres of wetlands loss, when the whole point of this lawsuit is that the Corps avoided analyzing any of the pipeline's environmental impacts as required by NEPA."
Lastly, Martínez put the onus on Transcanada for its economic decision-making.
"Transcanada chose to incur its economic harm by entering into contracts for services before the Gulf Coast Pipeline was approved, even in light of the controversial nature of the Pipeline," said Martínez (emphasis his).
U.S. District Court Decision Forthcoming, Activism Persists
Sierra Club, et al now await a summary judgment from the U.S. District Court for the District of Colorado on whether Keystone XL failed the dictates of NEPA. It's a key decision, Hayes says, because "a ruling in our favor could prevent the Corps from doing this in the future."
While they await this lower court judgment, activists continue efforts to fend off these pipeline projects.
"This decision yet again demonstrates why direct action is necessary. The permitting process for Keystone XL's southern leg was illegal, yet regulators, inspectors, Obama, and the courts are failing to do what is necessary to protect the people and ecosystems threatened by this toxic pipeline," said Ron Seifert, a Tar Sands Blockade spokesman.
"If all the branches of government are so helplessly captured by industry that they will do nothing to stave off climate change, then the people must rise up and take the defense of the environment into their own hands."
By Linn Washington, Jr.
On the first day of the federal government shut-down, as hundreds of tourists were turned away from the shuttered Liberty Bell and other fabled sites within the Independence National Historical Park in downtown Philadelphia, Richard Dyost stood near the building housing the Bell and received a big laugh.
With U.S. approval of Congress holding steady at a whopping 15%, one wonders just who it is the elected representatives are representing. Perhaps we can answer that question, by looking at some of their recent activities, and considering some of the things currently left undone.
Historians Against the War April 2013 Conference's theme, “The New Faces of War”, highlights the many ways that war-making has changed in recent decades, especially in the early 21st century. It takes place in Towson University in Baltimore, MD.
World Can't Wait will present at 9:00 am on Sunday morning:
Indefinite Detention and War against Iran: How Are These Strands of US Foreign Policy Connected?
A National Security State in and out: history will not be kind.
Ray McGovern, ex-CIA analyst: Attack Iran? Who Dares Quibble?
H. Candace Gorman,esq.: Like Sisyphus: Defending Men in Guantanamo
Thomas A. Drake,ex-NSA executive: Perversion of Power: Perfect Storm
Debra Sweet, World Can’t Wait:Moderator
Andy Worthington has spent the last seven years researching and writing about Guantánamo,and the men held there.Based in London, he is the author of The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison, and the co-director, with Polly Nash, of the documentary film, “Outside the Law: Stories from Guantánamo.”
The latest from ThisCantBeHappening.net
Taking It Out on the Kids:
US Sanctions on Iran are Hurting the Young and the Sick
By Dave Lindorff
Things are getting out of hand in the Persian Gulf.
By Michael Collins
(Chantilly, VA 6/3/2012) The Bilderberg Group completed its annual meeting today in Northern Virginia. The group was founded in 1954 by the financial, political, and military elites of Europe and the United States. Annual meetings provide for "regular, off-the-record discussions [to] help create a better understanding of the complex forces and major trends affecting Western nations in the difficult post-war period." Bilderberg Meetings, Official Website
The inherent contradiction in this mission statement is glaringly obvious. These are the very same people who put in place and control the governments and programs that they're meeting in private to "discuss." Don't they discuss these things before and during their masquerade of governance?
The group's official meeting website says, "What is unique about Bilderberg as a forum is the privacy of the meetings, which has no purpose other than to allow participants to speak their minds openly and freely."
When the world's ultra-rich and powerful meet to address major sociopolitical problems in a forum based on privacy, it's time to take a closer look.
The Witch-Burners are Alive and Sick in Kansas: Stand Up for Dr. Kristin Neuhaus against the Kansas Theocracy's Anti-Abortion Ji
By Dave Lindorff
A few hundred years ago in colonial Massachusetts, the theocratic fascist men who ran that society had a way of dealing with free-thinking women in their midst: they burned them at the stake or drummed up hordes of frightened and unthinking neighbors to stone them to death.
Most of us today imagine that if we had lived in those dark times, we would have stood up against such an outrage. Now is the time to find out.
Protest the War President
02.16.2012 - 02.16.2012 17.00
Nob Hill Masonic Center - 1111 California Street San Francisco
December 14, 2011 - One by one, the Marines sat down, swore to tell the truth and began to give secret interviews discussing one of the most horrific episodes of America’s time in Iraq: the 2005 massacre by Marines of Iraqi civilians in the town of Haditha.
“I mean, whether it’s a result of our action or other action, you know, discovering 20 bodies, throats slit, 20 bodies, you know, beheaded, 20 bodies here, 20 bodies there,” Col. Thomas Cariker, a commander in Anbar Province at the time, told investigators as he described the chaos of Iraq.
Protest Cheney at Republican Fund-Raiser
- 12.12.2011 - 12.12.2011 17.30
- Hilton Garden Inn - Staten Island
Cheney will be at a fundraiser for the Staten Island Republican Party and will will be joined by his daughter, Liz.
Tickets are $100 per person. Special $500 VIP tickets are available.
Join with Occupy Staten Island and others to protest this major war criminal!
"We Are Many" shows how mobilization in 2003 set stage for Arab Spring and Occupy Wall Street
Dec 8, 2011 - On Feb. 15, 2003, the planet experienced the greatest single non-military mobilization of humanity in the history of the world. People in 800 cities (and Antarctica) marched to voice their opposition as George Bush’s countdown clock ticked away the days toward the threatened U.S. invasion of Iraq. Estimates of the total numbers of protesters vary widely but it seems plausible that 15 million took to the streets.
Why would Founders create a class of criminal, "domestic enemies" of the "United States Constitution," if there were no such thing?
If you think soldiers won't do it, think again. Some of the stupidest people on Earth join the Army, and they, in contrast to the many intelligent young patriots who join for the right reasons, will always be there. Reading blogs arguing about Posse Comitatus and martial law I've seen comments like "I expect I might be picking a few civvies (civilians) off the wire someday...but I like my home on base and my kids need the nice playground. Life is good."
I also have close relatives in. I couldn't make this up.
Whistleblowers To Be Honored on Nov. 21 at American U.
In recent decades, information – the lifeblood of democracy — has often been cut off from the American body politic on “national security” grounds or because insiders feel it wouldn’t be “good for the country.” To counter that benighted view, a group of ex-U.S. intelligence officials honors brave whistleblowers, this year Thomas Drake and Jesselyn Radack.
By Ray McGovern
The risk of suicide in military children nearly doubles during a parent's deployment. Daniel killed himself during his father's last tour. He was 12 years old.
He hung himself from the bunkbed he shared with his brother.
His mom, Tricia, is wondering how Daniel's brother will cope with his father's upcoming deployment.
So is another military spouse whose boy tried to kill himself during his dad's last tour - who also learned that her soldier will be deployed again in 2012.
Isolated incidents? Not if you're a military family member.
These two moms will join other military family members on November 17 in this nation's Capitol to present Homefront 911: Military Family Monologues. True stories about how 10 years of war is really coming home.
12:00 noon at the US Capitol Visitor Center Congressional Auditorium free & open to the public.
World Can't Wait is sponsoring Kim Schultz' complete production of "No Place Called Home."
October 2, 2011 5pm
Revolution Books, 146 W. 26th St., New York, NY