January 9, 2014
Approaches to banning fracking in Colorado
ELC co-sponsored a Citizen Wolf Hearing on October 16, 2013. Testimony on the proposal by the U.S. Fish & Wildlife Service was heard by an expert panel that included DU law professors Frederico Cheever and Annecoos Wiersema. You can hear the testimony, which will be transcribed and sent to the FWS, here or watch the video here.
(if you are using an Apple Mac computer with the video link, you may need to download and install a free video playback program called VLC to playback the video file.)
Tuesday, October 2, 2012
Victory for Clean Air, Clean Energy in Lamar, Colorado
Federal Judge Rules Coal-fired Power Plant Violated Clean Air Act
Contact: Jeremy Nichols (303) 573-4898 × 1303
Denver—A Federal court late last Friday agreed with WildEarth Guardians and ruled that a coal-fired power plant on Colorado’s eastern plains violated the Clean Air Act, handing down a victory for clean air in the community of Lamar and a setback for the Arkansas River Power Authority’s efforts to keep burning coal.
“This is a great step forward for clean energy in eastern Colorado,” said Jeremy Nichols, Climate and Energy Program Director for WildEarth Guardians. “For those living in Lamar, it’s time to breathe easier knowing that the Arkansas River Power Authority’s coal-fired power plant will no longer operate illegally.”
The ruling comes nearly three years after WildEarth Guardians, working together with several residents in Lamar, Colorado, filed suit against the Arkansas River Power Authority to enforce the Clean Air Act. The suit challenged the utility’s failure to limit toxic air pollution from its 43-megawatt power plant in Lamar, which in 2007 was converted from natural gas to burn coal.
Represented by the University of Denver Sturm College of Law Environmental Law Clinic, Guardians targeted the Arkansas River Power Authority’s refusal to limit mercury and other contaminants using the most up to date technology to safeguard public health.
In his ruling, Judge David M. Ebel of the U.S. District Court for the District of Colorado held that the utility violated the Clean Air Act from March 2008 to July of 2012 because they failed to construct and operate the plant with the most up to date pollution controls. The Judge ordered a trial date to determine the appropriate amount of penalties that the Arkansas River Power Authority should pay.
“This ruling is a milestone for public health,” said Professor Mike Harris, Director of the University of Denver Sturm College of Law Environmental Law Clinic. “Importantly, it sends a resounding message to polluters everywhere that illegal air pollution will not be tolerated.”
Under the Clean Air Act, polluters can be fined up to $37,500 per day for violating, meaning the Arkansas River Power Authority—which provides power to communities throughout southeastern Colorado—faces the potential of more than $50 million in penalties for violating the past four years.
The ruling comes as the Arkansas River Power Authority is increasingly under pressure to reform. One of its members, the City of Trinidad, has already filed suit against the utility over allegations of breach of fiduciary duty. Recent news reports indicate the Town of Lamar is growing discontent as well (see September 27, 2012 Lamar Ledger article ), with many of its commercial customers—including the Ports to Plains Truck Stop—threatening to declare energy independence by building wind turbines.
The coal-fired power plant in Lamar has also suffered a number of mechanical setbacks since coming online in 2009. The facility is currently not in operation, although the Arkansas River Power Authority has indicated it intends to fire the power plant back up as soon as possible.
“The cost of coal is tremendous,” said Nichols. “We hope the Arkansas River Power Authority comes to its senses and finds a better way forward to provide clean, reliable, and affordable energy for all of southeastern Colorado.”
The University of Denver, the oldest private university in the Rocky Mountain region, enrolls approximately 11,409 students in its undergraduate and graduate programs. WildEarth Guardians is a nonprofit organization dedicated to protecting and restoring the wildlife, wild places, and wild rivers of the American West.
Critics plan appeal of Breckenridge Peak 6 expansion
Posted on September 18, 2012 by Bob Berwyn
Rocky Mountain National Park wolf reintroduction case to be heard at CU-Boulder
By Amy Bounds Camera Staff Writer
Posted: 09/17/2012 08:47:58 PM MDT
Updated: 09/17/2012 08:49:04 PM MDT
If you go
- What: 10th Circuit Court of Appeals hears arguments
- When: 9 to 11:30 a.m. Wednesday and Thursday
- Where: University of Colorado’s Wolf Law Building, Wittemyer Courtroom
- Cost: Free and open to the public
Law students at the University of Colorado will have a chance to watch the 10th Circuit Court of Appeals hear arguments in two cases on the campus this week.
Up on Wednesday is a patent case. On Thursday, the court will hear arguments in a lawsuit filed by Broomfield’s WildEarth Guardians to compel Rocky Mountain National Park to fully analyze introducing wolves to the park to control elk herds.
The court’s visit coincides with CU’s Gathering of the Bench and Bar Conference.
“Law school students have the opportunity to see the court in action, trying real cases,” said law school spokeswoman Keri Ungemah. “They can see how attorneys develop their arguments and statements.”
In the Rocky Mountain National Park case, WildEarth Guardians is represented by the University of Denver Sturm College of Law Environmental Law Clinic. DU law student Jenni Barnes plans to argue the case Thursday before the panel of judges.
Wendy Keefover, of WildEarth Guardians, said her organization sued after the national park, in creating its 2007 elk management plan, didn’t fully consider releasing wolves as a management tool. The park service approved the 20-year plan to reduce the elk herd because overgrazing damaged habitat and threatened other species.
Now, sharpshooters are used to control the population. No elk were culled last winter, but a total of 131 elk were removed over the three previous winters. Some of the elk killed were used for research.
In the past, Rocky Mountain National Park officials said they considered using a small number of wolves to reduce the elk herd and keep the animals on the move so they couldn’t damage the vegetation. But they have said they didn’t have the necessary support from state and other federal agencies. They also said the park isn’t big enough to contain the wolves long-term.
Keefover said the National Park Service failed to consider a reasonable range of alternatives to shooting elk. She said the agency’s decision to allow hunting in a national park also violates the park’s organic act, which prioritizes conservation.
Wolves, she said, can do what sharpshooters can’t — keep the elk vigilant and mobile so that they don’t over-browse and harm aspen and willow groves. Wolves also kill the weak and the sick, she said, unlike sharpshooters.
“It’s really important for Rocky Mountain National Park to consider bringing wolves back,” she said.
Over the River
Pending lawsuits postpone Over The River
Art project on hold until three legal cases resolved
Posted: 07/31/2012 12:10:06 PM MDT, The Canon City Daily Record
Internationally acclaimed artist Christo announced Tuesday that the exhibition date for the proposed “Over The River” project has been temporarily postponed until three legal cases formed against the federal and state governments are resolved.
The cases include a regulatory appeal to the Interior Board of Land Appeals in Washington; a lawsuit filed in federal court by the University of Denver School of Law – Environmental Law Clinic on behalf of the opposition group Rags Over the Arkansas River against the Bureau of Land Management; and a lawsuit filed against Colorado State Parks for its 2011 Agreement with OTR, also filed by ROAR.
“For that reason, our team decided that it is not easy, but a wise decision that we cannot have the date of the exhibition of the project because we have these cases hanging on us,” Christo said.
A motion by the BLM to dismiss a lawsuit by ROAR was denied in early July by U.S. District Court Judge John L. Kane, who also issued a Stay on the suit filed by ROAR while an appeals board of the Department of the Interior also considers the matter.
Kane ordered OTR to honor the Stay and commence no action on the agency’s November 2011 construction authorization until the administrative appeals process has run its course. He also ordered that the BLM is responsible for “preserving the status quo by monitoring and effectuating OTR.”
ROAR filed a motion Friday in U.S. District Court for the District of Colorado to ask Kane to amend his Stay issued July 5 to more strictly accomplish his stated intent to have BLM pause OTR construction while a third party administrative appeal is being considered by the IBLA.
Steve Coffin, a spokesperson for OTR Corp., said Christo had hoped the lawsuits would have been further along in the process than where they are now.
“Judge Kane’s decision was just another reminder on how long this legal process can take,” Coffin said.
Christo said the other activity involving the project that does not require work on the physical land — the financing, the bighorn sheep habitat, the formulation of the event management plan — will continue to move forward. Other aspects of the project also remain unchanged, including the number of installation days and the comprehensive set of more than 100 mitigation measures.
Application submittal for the remaining permits required for the project — a Special Use Permit by the Colorado Department of Transportation and a Chaffee County Special Event Permit — are on hold pending the outcome of the legal suits. Christo and his team met with Gov. John Hickenlooper on Monday to update him on the project, and Tuesday, Christo met individually with media representatives, as well as local commerce and government officials and project supporters from Fremont and Chaffee counties.
The two-week temporary work of art was scheduled to take place in August 2015. Following that timeline, drilling would have begun in February 2013, the staging activities would have started this December and equipment would have had to be ordered next week.
Christo remains optimistic that the project eventually will move forward.
“I am always confident,” he said. “I am 77 years old, and if I am not confident then Jeanne-Claude and myself would not (have completed) 22 projects in the last 50 years. With no optimism, we would not do anything — we always see the silver lining on everything.”
ROAR spokesperson Joan Anzelmo said her group is equally as confident that the project will shut down for good.
“ROAR will continue to work hard to expose the destructive and dangerous nature of Christo’s proposed Over The River project and the significant impacts it would present to people and wildlife along the Arkansas River in Bighorn Sheep Canyon and on U.S. Highway 50 for upwards of four years, including the construction phase, display phase and rehab phase,” she said on an emailed statement to the Daily Record. “ROAR is even more confident than Christo — and ROAR believes that the OTR project will never happen.”
Christo and the OTR team announced in February that the exhibition period for the proposed project would be pushed back a full year to allow more time for Event Management Plans to be developed, as well as to reinstate the full 28-month installation schedule as included in the Final Environmental Impact Statement.
The decision to push the date also gave the Fremont County Commissioners more time to consider Christo’s request for a Temporary Use Permit, which was granted with certain conditions in late March. The pending legal suits, Christo said, are part of reality.
“It’s part of the project,” he said. Some of Christo’s other projects, including the “Surrounded Islands” and “Running Fence” also have been temporarily delayed by similar suits but eventually were completed.
The OTR project involves about six miles of fabric panels to be suspended over sections of the Arkansas River between Salida and Cañon City. It is expected to generate more than $121 million in Colorado and $1.58 million in total state and local tax revenue.
More than 620 temporary jobs are projected to be created because of the project, and about 344,000 people are expected to visit during the 14-day exhibition period.
Petition Seeks International Investigation of Canada’s Farmed Fish Operations, Protections for Wild Salmon
NAFTA Panel Asked to Investigate Canadian Violation of Wildlife Law
SAN FRANCISCO— Conservation, fishing and native groups in Canada and the United States filed a formal petition today requesting an international investigation into Canada’s failure to protect wild salmon in British Columbia from disease and parasites in industrial fish feedlots. The petition was submitted to the Commission for Environmental Cooperation under the North American Agreement on Environmental Cooperation — an environmental side agreement to the North American Free Trade Agreement — and seeks enforcement of Canada’s Fisheries Act.
“The Canadian inquiry into the collapse of Fraser River sockeye, the largest salmon-producing river in the world, suggests the primarily Norwegian-owned British Columbia salmon-farming industry exerts trade pressures that exceed Canada’s political will to protect wild salmon,” said biologist Alexandra Morton with the Pacific Coast Wild Salmon Society. “Releasing viruses into native ecosystems is an irrevocable threat to biodiversity, yet Canada seems to have no mechanism to prevent salmon-farm diseases from afflicting wild salmon throughout the entire North Pacific.”
Canada has permitted more than 100 industrial salmon feedlots in British Columbia to operate along wild salmon migration routes, exposing ecologically and economically valuable salmon runs to epidemics of disease, parasites, toxic chemicals and concentrated waste. The petition documents Canada’s failure to enforce the Fisheries Act in allowing industrial aquaculture to erode the capacity of ecosystems to support wild salmon. The proliferation of salmon feedlots is linked to dramatic declines in British Columbia’s wild salmon populations and the detection of a lethal salmon virus.
“Fish farms in Canada are an unholy marriage between various levels of the Canadian governments and foreign-owned companies,” said Chief Bob Chamberlain of the Kwikwasu’tinuxw Haxwa’mis First Nation. “We continue to explore, identify and act upon whatever means possible to rid our traditional territories of open net cage fish farms.”
“The Canadian government’s disregard for wild salmon stocks in pandering to multinational salmon farming corporations is outrageous,” said Zeke Grader, director of the Pacific Coast Federation of Fishermen’s Associations. “Salmon feedlots put wild salmon, the communities that depend upon them, a billion-dollar fishing industry, tens of thousands of fishing jobs, and our nations’ shared natural heritage at risk of extinction.”
“Industrial salmon feedlots function as disease-breeding factories, allowing parasites and diseases to reproduce at unnaturally high rates,” said Jeff Miller with the Center for Biological Diversity. “Marine feedlot waste flows directly, untreated, into contact with wild salmon. Putting feedlots hosting a toxic soup of bacteria, parasites, viruses and sea lice on wild fish migration routes is the height of biological insanity.”
When a country signatory to NAFTA fails to enforce its environmental laws, any party may petition for enforcement. Canada’s Fisheries Act prohibits harmful alteration, disruption or destruction of fish habitat or addition of “deleterious substances.” The petitioners seek an investigation and finding by the Commission for Environmental Cooperation that Canada is violating its Fisheries Act with regard to industrial aquaculture. Such a finding could lead to international action to force Canada to protect wild salmon, ideally by relocating fish aquaculture into contained tanks on land.
“Applying the Fisheries Act to fish feedlots as it is applied to all other marine users and removing feedlots from salmon migration routes will benefit wild fish and the economy of British Columbia,” said Miller. “Moving to contained aquaculture on land will benefit areas starved for employment and clean up the rivers to restore wild salmon runs.”
Scientific evidence of harm to wild salmon swimming through B.C. waters from fish feedlots has been mounting, as has public concern that feedlots could spread epidemic diseases. This is a threat that jeopardizes the health of every wild salmon run along the Pacific Coast, since U.S. and Canadian stocks mingle in the ocean and estuaries.
The Canadian petitioners are the Pacific Coast Wild Salmon Society in B.C. and Kwikwasu’tinuxw Haxwa’mis First Nation, a native tribe whose territory off northern Vancouver Island is being used by 27 Norwegian-owned salmon feedlots. The U.S. petitioners are the Center for Biological Diversity and Pacific Coast Federation of Fishermen’s Associations, the largest trade association of commercial fishers on the west coast, representing family fishing men and women. The University of Denver Environmental Law Clinic helped prepare and submit the petition.
For Immediate Release, February 7, 2012
Contact: Jeff Miller, Center for Biological Diversity, (415) 669-7357
Alexandra Morton, Pacific Coast Wild Salmon Society, (250) 974-7086
Chief Bob Chamberlin, Kwikwasu’tinuxw Haxwa’mis First Nation, (250) 974-8282
Zeke Grader, Pacific Coast Federation of Fishermen’s Associations, (415) 561-5080 × 224
University of Denver Law Students Win Logging Case, Defeat Federal Permit
DU’s Environmental Law Clinic sued in 2009 to block Southwest Colorado logging approval
Students in the Environmental Law Clinic at the University of Denver Sturm College of Law have successfully blocked a federal timber permit that would have allowed logging on environmentally fragile lands in southern Colorado. Runoff from the area feeds the headwaters of the Rio Grande.
The river is a major source of drinking water for millions of people in Colorado, New Mexico and Texas, and provides water for agriculture in both the United States and Mexico.
U.S. Judge William Martínez in the U.S. District Court for the District of Colorado on Feb. 9 ruled the U.S. Forest Service did not meet obligations spelled out in the National Forest Management Act and that an Environmental Assessment was inadequate. The ruling overturns issued timber permits for more than 3,400 acres in the Handkerchief Mesa area of the Rio Grande National Forest. Permits would have also allowed for the construction of 11 miles of roads.
The area in question is near Alamosa in southwestern Colorado. The case argued timber cutting would impact lands stressed by previous clear-cutting and an ongoing spruce budworm infestation. Allowed to proceed, the proposal could lead to continued soil damage, including erosion and compaction, impacting the flow of water to the Rio Grande and thousands of communities downstream.
The suit was prepared in June, 2009 by student Jacob Schlesinger and Environmental Law Clinic Fellow Ashley Wilmes under the direction of Environmental Law Clinic Director Michael Harris. It named the U.S. Forest Service and Department of Agriculture. It was filed in federal court in Denver on behalf of environmental groups WildEarth Guardians and Colorado Wild, now known as Rocky Mountain Wild.
Student lawyers Mason Brown and Justine Shepherd argued the case in federal court in December, 2011 under a provision that allows students to practice in federal court while supervised by a licensed attorney.
Harris says stopping a permitted timber project in Colorado is extremely rare. The ruling, he says, sends a message to the Forest Service that its permitting process must take into account changing conditions, ongoing insect infestations and other ecological conditions.
“The court has told the Forest Service, the game has changed, and you need to change with them if you are going to continue to permit these projects,” Harris says.
Based in Santa Fe, N.M., WildEarth Guardians brings people, science, and the law together in defense of the American West’s rivers, forests, deserts and grasslands. Rocky Mountain Wild works from its headquarters in Denver and Durango, Colo. to protect, preserve, and restore the native plants and animals of the Southern Rocky Mountains with particular attention given to habitat protection of Colorado’s forested, roadless, public lands and other ecologically important areas.
For Release: Feb. 9, 2012
Contact: Chase Squires
Phone: (303) 596-4746
University of Denver Law Students Sue to Block “Over the River”
DU’s Environmental Law Clinic cites environmental concerns for project by the artist Christo
- Watch the UTube Video
Students in the Environmental Law Clinic at the University of Denver Sturm College of Law on Feb. 1 filed suit in federal court to block the proposed “Over the River” industrial scale art project. The project proposes hanging aluminum coated material over 5.9 miles of the Arkansas River, in scattered sections over a 42-mile stretch.
The suit is being filed against the U.S. Bureau of Land Management on behalf of the grassroots, all-volunteer citizen group Rags Over the Arkansas River (ROAR), whose members are dedicated to preserving and protecting the headwaters of the Arkansas River and Bighorn Sheep Canyon. The group opposes the industrial scale art project citing numerous environmental issues and dangers to the residents and visitors to the area. The suit is filed by students Mason Brown and Justine Shepherd, under the guidance of Professor Michael Harris.
According to the suit, the project will be built almost entirely within the federally designated Arkansas Canyonlands Area of Critical Environmental Concern, key habitat for Rocky Mountain bighorn sheep, the symbol of the Colorado Division of Wildlife and Colorado’s official state animal. And the stretch of the Arkansas River running through the area is among the most popular rafting rivers in the world and is designated by the state as the most popular river for fishing in Colorado.
Construction of the Over the River project will take some 28 months, with another three to 12 months to take down, the suit alleges. It will require an estimated 3,000 crew work days and involve drilling up to 35 feet into bedrock to anchor some 9,000 industrial bolts and anchors, most of which will be left behind when the project is over. Work could make bighorn sheep susceptible to disease and could disturb and otherwise harm other endangered and threatened species, including peregrine falcons and bald and golden eagles.
In addition, construction and demolition includes the use of equipment commonly used in mining and road building, including hydraulic drill, long-reach excavators, wheeled excavators, boom truck cranes, grouters, air compressors, water tanks, grout mixers, support trailers, steel rock anchors, and anchor frames.
“The Bureau of Land Management and other government officials refuse to acknowledge that the impacts of this project are not ‘short term’ in nature,” Harris says. “For a two-week exhibition, the BLM has authorized Christo to undertake a two-year construction project in one of the most environmentally sensitive areas along the Arkansas River. The boring of over 9,000 holes into the bedrock along the riverbank and the installation of a complex system of cables and anchors will damage the area’s scenic, cultural and wildlife resources just as if the bureau had authorized the development of a massive mining operation in the canyon.”
The suit contends work will deny river and recreational facility access to fishermen and visitors, and road closures during construction will create inconvenience and dangerous situations for area residents.
ROAR spokeswoman Joan Anzelmo characterized ROAR’s battle to stop Christo’s destructive Over the River project as a modern-day David versus Goliath struggle.
“With this lawsuit,” she says, “ROAR is aiming its slingshot directly at the Goliath Over the River project and at the Bureau of Land Management that gave the go-ahead despite its federal stewardship responsibilities for public lands, water, wildlife.”
A copy of the suit will be available online at http://www.law.du.edu/index.php/law-school-clinical-program/environmental-law-clinic
University of Denver:
Chase Squires, (303) 596-4746
Rags Over the Arkansas River:
Joan Anzelmo, (307) 699-3688
The University of Denver is committed to improving the human condition and engaging students and faculty in tackling the major issues of our day. DU ranks among the top 100 national universities in the U.S. For additional information, go to http://www.du.edu/newsroom.
Rags Over the Arkansas River (ROAR) is a grassroots, volunteer organization dedicated to preserving and protecting the headwaters of the Arkansas River, the Bighorn Sheep Canyon, its inhabitants and the communities that depend upon them. ROAR’s founding project has been to formally oppose Christo and Jeanne Claude’s “Over the River” project. This project involves suspending horizontal fabric panels within a 45 mile stretch over the Arkansas River’s Bighorn Sheep Canyon. http://www.roarcolorado.org
Estes Park Trail-Gazette, Program: Wolves in the Willows November 2, 2011
Cockatoo’s to be Protected August 9, 2011
The U.S. Fish and Wildlife Service has proposed to list the Philippine cockatoo and the yellow-crested cockatoo (including all four subspecies) as “endangered” and the white cockatoo as “threatened” due to a variety of threats, primarily the illegal collection of the birds for global trade. In January 2008, the Friends of Animals, represented by the Environmental Law Clinic at the University of Denver Sturm College of Law petitioned the Service requesting 14 species be protected under the Endangered Species Act.
Read the full story here.
DU law students seek protection for predators during “Shark Week”, August 4, 2011
Read the full article here.
High Country News, Welcome to Shingle Mountain, Colorado, May 11, 2011
Environmental Law Clinic visits “Shingle Mountain” site, May 4, 2011,
University of Denver law students say April showers bring deadly runoff, April 21st, 2011
DENVER – For more than a year, Drew Dutcher has lived in the shadow of what neighbors call “Shingle Mountain,” a pile of discarded roofing shingles that may have crossed the line from eyesore to community health menace.
Now, University of Denver (DU) Sturm College of Law students are demanding the owners of North Denver shingle recycling business Shingles 4 Recycling do something about the 30-foot-high mountain of broken shingles that they say is oozing potentially contaminated runoff onto area streets and possibly into the Platte River.
Working under the guidance of DU’s Environmental Law Clinic director Michael Harris, student lawyers Stephanie Fairbanks and Eric R. Wilson this month sent a 60-day notice of intent to sue to Shingles 4 Recycling on behalf of area residents and environmental activists. If the company doesn’t cut the pile down, and cover it, they plan to file a lawsuit in Federal Court under the Clean Water Act, Harris says.
There are multiple shingle piles around the site, but the largest is visible at the corner of East 51st Avenue and Columbine Street. Harris says neighbors are concerned about runoff from the unsightly debris, which is uncovered and is threatening to spill past damaged container fences.
“Locals call it ‘Shingle Mountain,’ for obvious reasons,” Harris says. “What we see here of course is, for community members, quite an eyesore. But it’s also a potential fire hazard and an environmental hazard. There’s asbestos and other types of metals and organics coming loose, getting into the air, and on a rainy day washing right off into the street here and into the Platte River, which is just 1,100 yards away.”
Even if those materials don’t make it to the river they pose a threat, Harris says. Chemicals and metals left behind on the street are kicked up into the air by passing vehicles and contaminate the area, he says.
Dutcher says residents worry about possible air and water borne contaminants.
“There are just so many questions about it. There are health questions, there are ground water questions, storm water questions, and there are fire questions,” Dutcher says. “What happens in the case of winds, and rain and snow? Where does the runoff go?”
A study prepared for the Construction Materials Recycling Association finds the primary concerns about asphalt shingle recycling is asbestos, used in shingle manufacturing from the 1800s until as late as the 1980s. Health risks from the asbestos are highest for plant workers and nearby residents, the report finds.
The Environmental Law Clinic is representing four residents in the Elyria, Swansea and Globeville neighborhoods of North Denver as well as the 4,000-member nonprofit environmental group WildEarth Guardians.
Harris says the hope is that business owner William Scott will come into compliance within the 60-day notice window without involving regulators. But if the situation isn’t addressed, he says the students are prepared to file a complaint in federal court.
Valley Forge Park sets deer shoots after year’s delay, Philadelphia Inquirer, Oct. 5, 2010.
Black out: Lamar gets steamed over a troubled coal plant — right in the middle of town, Westword, Sep. 30, 2010.
The Pueblo Chieftain, Judge to decide Xcel suit: Group contends Comanche power plant’s construction was illegal, TRADINGMARKETS.COM, Feb. 24, 2010.
DENVER, Feb 24, 2010 — A judge said on Tuesday he will decide later whether to throw out a lawsuit that alleges Xcel Energy violated federal law while building a massive new generating unit in Pueblo.
Senior U.S. District Judge Walker Miller announced his intention after hearing arguments from WildEarth Guardians, an environmental group, and Xcel.
WildEarth alleges Xcel violated the Clean Air Act by finishing construction of Unit 3 at the Comanche power plant without having obtained a particular permit that the group contends was required.
Xcel contends it was not required to have the specific permit before it finished construction, late last year.
The utility and the group dispute whether the judge should grant Xcel’s request to throw out the lawsuit WildEarth filed July 1. Unit 3, a $1.5 billion addition, is the largest coal-fired generating facility in Colorado that supposedly is capable of generating enough electricity to serve at least 500,000 residential customers.
The permit at issue is based on a determination by the Colorado Air Pollution Control division that Unit 3 has what the law characterizes as “the maximum achievable control technology” to limit emissions of toxic pollutants.
The state division issued the permit on Monday.
WildEarth contends the law required Xcel to have the permit at least at the time the group sued and perhaps as early as 2008.
The group wants Miller to declare that Xcel violated the law and assess undetermined monetary penalties for doing so.
Xcel argued the judge should throw out the lawsuit on either of two grounds: abstention or that the point is moot.
The utility contends Miller should abstain from considering the lawsuit based on Xcel’s position that the state division or a state court has sole jurisdiction.
Alternatively, the utility contends the judge should rule the lawsuit is moot because the division now has issued the permit.
WildEarth argued the lawsuit should not be dismissed, contending Xcel had violated the law until the permit was issued.
Miller did not give a strong indication about which way he will rule. He did, however, ask when Unit 3 began burning coal — the source of the pollutants that is the subject of the permit. Xcel attorney William Bumpers said it was last fall.
Maryclaire Dale, Valley Forge Deer Hunt Postponed, THE REPORTER, Dec. 24, 2009.
VALLEY FORGE — The National Park Service has called off its plan to deploy silencer-equipped sharpshooters this winter to cull the nearly 1,300 deer overtaking Valley Forge.
With a lawsuit pending and facing the logistics of deploying contract shooters before spring, the government decided to put off a long-planned hunt at Valley Forge National Historical Park until at least next November, Assistant U.S. Attorney Richard Bernstein told The Associated Press on Wednesday.
Where George Washington’s tattered troops once scrambled for food and shelter, the exploding white-tailed deer population now enjoys a generous habitat of field and forest. But they eat up so many plants, officials say, they are throwing the park’s environmental balance out of whack. They are also blamed for scores of vehicle accidents within the park each year and for wreaking havoc on suburban gardens nearby.
“They cause so much damage to the environment, so many road accidents. And the roadkill — so many deer end up lying on the road. No one wants that, whether you want the deer there or not,” said Julia Urwin, 52, of Tredyffrin, who supports the hunt.
After years of heated debate and a congressional mandate to deal with the burgeoning deer colony, the park service decided this fall to cull the herd by 80 percent over four years through nighttime hunts.
Animal-rights activists believe the park should be maintained by natural means, and filed suit to try to block the kill in the 3,500-acre oasis west of Philadelphia. Others doubt the plan is safe, given that homes, hotels and malls now surround the land where Washington’s Continental Army spent the winter of 1777-1778. “The culling never works … and I think it teaches our kids the wrong thing,” said Priscilla Cohn of Villanova, a retired philosophy professor who runs a small animal-rights foundation. She argues that deer herds invariably bounce back after a hunt, as better-fed survivors produce more offspring and other deer move in to fill the vacuum.
“I’m a believer in science,” she said. “Shooting is from the last couple of centuries.”
Cohn’s foundation has offered about $120,000 for deer contraception and fencing to protect vegetation, but the offer is only good if no deer are slain. Park officials, she said, have ignored her.
The park management plan endorses the use of contraceptives for herd maintenance, but said their effectiveness should be further studied. Meanwhile, they say the deer problem is too severe to wait.
“Our plan is linked strongly to our mission at Valley Forge … to preserve the historic resources, the natural resources and certainly the landscape,” said park Superintendent Michael Caldwell. “It’s science-based, it’s safe, and there’s been an extensive amount of public involvement.”
Deer problems plague many parks throughout the East, and similar debates about how to shrink deer herds have played out for years. In the 1990s, Gettysburg National Military Park’s deer population was reduced by a hunt from 4,000 to just over 200. In Valley Forge, the post-hunt target population is 175. “This park couldn’t be better habitat for white-tailed deer. It is the perfect mix of field and forest,” said Kristina Heister, the park’s natural resource manager. “If you have 1,300 deer on the landscape, I bet it’s hard for a squirrel to even find an acorn on the forest floor.”
The habitat loss has caused birds, butterflies and other dependent wildlife to disappear, officials say.
The National Park Service cites restoration of that ecological balance as its primary reason for the cull, with a secondary goal of reducing the risk of chronic wasting disease, a mad-cow-like brain disease. The disease has been found in adjacent states, but not in Pennsylvania, and foes of the hunt question whether a smaller herd size reduces risk.
Meanwhile, about 90 deer-vehicle collisions occur each year on the busy state road and several commuter shortcuts that dissect the park, Heister said. No one was seriously hurt last year, she said.
Logistics may be as much at play as the lawsuit in this week’s agreement to delay the hunt until next winter.
Park officials had set a Jan. 5 deadline for contractors to bid on the hunting operation, and said they needed about two months after that to initiate it. That left little time for the culling operation during the key winter months.
A lawyer for the groups involved in the suit, Connecticut-based Friends of Animals and Pennsylvania-based Compassion for Animals, Respect for the Environment, said Wednesday they are thrilled by the one-year reprieve.
“The fact that they’re not managing the parks in a natural way is really what’s driving our concern,” said Michael R. Harris, a University of Denver environmental law professor who represents them. “They’re supposed to be managed in a wild state.”
Harris endorses the use of coyotes — already present in the region — to thin the deer population. If that means suburbanites must learn to live with predators in their midst, so be it, he said.
That approach startles some who use the park’s 26 miles of hiking and biking paths, including economist Philip Senechal of Philadelphia.
“I don’t like the idea of introducing predators. I think that’s risky,” Senechal said.
Ed Coffin, Friends of Animals and CARE Sue to Stop National Park Service Deer Control Plans, Philadelphia Vegan Examiner, Nov. 12, 2009.
Friends of Animals, an advocacy organization founded in 1957, is suing the U.S. National Park Service to stop a proposed deer-control plan for Valley Forge National Historical Park. Just a few minutes west of Philadelphia, Valley Forge Park is historically known as a six-month headquarters for George Washington during the Continental Army’s encampment in 1777. Today, it is known as a five-mile spot of peace and safety for animal life in the midst of suburban shopping malls and road works. Under the government’s “White-Tailed Deer Management Plan,” however, rifle-toting agents would enter the park to kill the vast majority of the deer this winter, continuing the same way for at least four years.
Were this to occur, hundreds of deer would die and be dragged out of the park this winter, and the deer, following their nature, would rebound with extra fawns in spring, turning the plan into a long-term cycle of violence. “The government’s desire to deploy a rifle team to war on the deer lacks biological, ecological, and ethical sense,” said Lee Hall, legal director for Friends of Animals. “That park officials would actually encourage local residents to believe deer have no business on the land the minute they do something inconvenient — even including the ingestion of ornamental plants — is not responsible leadership.”
Allison Memmo Geiger, president of co-plaintiff CARE (Compassion for Animals, Respect for the Environment), said, “Valley Forge National Historic Park’s managers and the National Park Service have displayed a lack of respect for nature, for those of us who enjoy and pass through the park, and for the deer whose habitat is the park.” Noting that the government proposal includes spending future years controlling the deer with a lab-created birth control substance, Geiger stated, “I’m not sure which is worse — shooting deer or wreaking havoc on their biology and their social and reproductive interactions by imposing birth control on them.”
Additionally, the suit charges that shooting the deer endangers public safety and ignores local laws. Eerie Insurance Company research shows that cars hit deer the most when the deer are being hunted, with the opening day of hunting season and the first Saturday of hunting season being the highest days for these accidents.
“The park has decided it’s OK to discharge firearms in this small park so close to roads and developments — adding to the mix a population of suddenly frightened deer? This is unacceptable,” said Geiger. The deer are not responsible for the park’s manicured lawns, for deliberate removals of natural vegetation over the years and the planting of non-native foliage, for a lack of respect for the animals comprising the park’s natural food web, for paved areas and buildings, for more than a million visitors per year, vehicle exhaust, or for the constant presence of (often speeding) cars. These factors must be addressed directly to address the pressure on the deer, Friends of Animals and CARE have urged.
The lawsuit alleges the Park Service’s White-tailed Deer Management Plan for the Valley Forge National Historical Park violates federal law, including the National Environmental Policy Act, the Organic Act and the park’s enabling legislation. “Decisions under the National Environmental Policy Act cannot be based simply on seizing upon the apparently easiest answer to a perceived problem, said Hall. “Killing deer is not the answer to the decline of plant life in a sprawling, concrete-covered suburb.” “Like any conscious beings, moreover, deer need special concern in decisions involving the ecological balance of a space; and our government needs to stop disregarding common sense and ethics.”
The suit names Mike Caldwell, Superintendent of Valley Forge National Historical Park, the National Park Service, Secretary of the Interior Ken Salazar, National Park Service Director Jon Jarvis, and National Park Service Regional Director for the Northeast Dennis R. Reidenbach. On behalf of Friends of Animals and CARE, Lee Hall expressed appreciation for the outstanding legal work on the case by the University of Denver – Sturm College of Law Environmental Law Clinic, directed by Professor Michael Harris. The lawsuit is being filed in the Eastern District of Pennsylvania.
- Lindsay Miller, Student Lawyers File Lawsuit Against Xcel Energy, DU CLARION, Sept. 29, 2009.
- Prof. Don C. Smith, Environmental Law Clinic- LLM International Scholar Program Launched, ENVIRONMENT IN THE 21ST CENTURY: ENVIRONMENT 21, Sept. 14, 2009.
- Clinical Legal Education Association, University of Denver Environmental Law Clinic Secures Victories under the Endangered Species Act, CLEA NEWSLETTER, Sept. 2009.
- Clinical Legal Education Association, University of Denver Environmental Law Clinic Launches the Colorado Urban Project, CLEA NEWSLETTER, Sept. 2009.
- Prof. Don C. Smith, Environmental Law Clinic Director Prof. Mike Harris Creating Groundbreaking Colorado Urban Project, ENVIRONMENT IN THE 21ST CENTURY: ENVIRONMENT 21, Sept, 7, 2009.
- Colorado & Denver News, Colo. Students Win Review of Virgin Islands Plants, CBS4DENVER, Aug. 19, 2009.
- Rocky Smith, Battle to Protect National Forest Roadless Areas Continues, COLORADO WILD, Summer 2009, http://www.coloradowild.org/CWNewsletterSummer2009.pdf.
- Pioneer Press, Environmentalists Suing Xcel Over Denver-area Power Plant, ST. PAUL PIONEER PRESS, Aug. 06, 2009.
- Press Release, WildEarth Guardians, Coal Burning Power Plan in North Denver Violating Clean Air Laws, Aug. 06, 2009.
- Chase Squires, Law Students File Suit Against Xcel Energy, DU TODAY, Aug. 06, 2009.
- Press Release, Friends of Animals, Friends of Animals Win: African Antelope Shielded From Safari Club and Trophy Tourists, June 23, 2009.
- Friends of Animals, African Antelope Shielded From Safari Club and Trophy Tourists, ALL CREATURES ANIMAL RIGHTS, June 2009.
- Sturm College of Law, Environmental Law Clinic Helps Win Protection for Endangered Species, STURM COLLEGE OF LAW NEWS, June 25, 2009.
- Prof. Don C. Smith, DU Environmental Law Clinic Sues Federal Government to Stop Proposed Logging in Southern Colorado, “ENVIRONMENT IN THE 21ST CENTURY: ENVIRONMENT 21”: http://enrlgp.blogspot.com/2009/06/du-environmental-law-clinic-sues.html, June 4, 2009.
- Brian Thomas, Lawsuit filed to Stop Logging Near Rio Grande Headwaters, CLIMATE CHANGE ADAPTATION, June 3. 2009, http://carbon-based-ghg.blogspot.com/2009/06/lawsuit-filed-to-stop-logging-near-rio.html.
- Rebecca Van Dyke, RGNF Timber Project Appealed, VALLEY COURIER, June 2, 2009.
- Press Release, WildEarth Guardians, US Forest Service Logging Priorities Need 21st Century Revitalization, June, 2 2009, http://www.wildearthguardians.org/library/paper.asp?nMode=2&nLibraryID=763.
- Environment News Service, Lawsuit Filed to Stop Logging Near Rio Grande Headwaters, INTERNATIONAL DAILY NEWSWIRE, June 2, 2009.
Environmental Law Clinic in the News 2008
- Chase Squires, DU Law Students Fight to Reduce Pollution and Save Parrots, DU TODAY, Feb. 7, 2008.
- EWire.com, Friends of Animals & Environmental Law Clinic Petition Secretary of the Interior to Stop Caged Bird Trade, EWIRE, Jan. 29, 2008.
- FriendsofAnimals.org, Friends of Animals and University of Denver Environmental Law Clinic Petition EPA to Stop Caged Bird Trade, Jan. 29, 2008.
- Andy Vuong, Clean Air Group to Sue Xcel, DENVER POST, Jan. 29, 2008.
- PRLog.org, Friends of Animals & Envir. Law Clinic Petition Secretary of the Interior to Stop Caged Bird Trade, Jan. 28, 2008.
- Denver Business Journal, Xcel Threatened with Lawsuit Over Clean Air Standards, DENVER BUSINESS JOURNAL, Jan. 28, 2008.