The Conservation Report

It is constitutional to challenge the reasonableness of a punitive award but not a compensatory award. The goal of punitive damages is retribution or punishment and deterrence while compensatory damages are used to make a plaintiff whole or put them in the position they were before they met the defendant. According to the Supreme Court of the United States, the “Due Process Clause prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeaser.” Furthermore, the Court noted “it should be presumed that a plaintiff has been made whole by compensatory damages, so punitive damages should be awarded only if the defendant’s culpability is so reprehensible to warrant the imposition of further sanctions to achieve punishment or deterrence.”

In State Farm the U.S. Supreme Court determined that “few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process.” As a result, single-digit multipliers or anything under 9:1 will reflect the State’s goals to punish and deter while corresponding with due process. However, the more reprehensible and malicious the conduct the greater the award can be. The relationship of punitive damages to compensatory damages acts as a guidepost only. As a result, double-digit multipliers are not impossible. The Court returned to the question of punitive damages in Exxon Shipping Co. v. Baker.

In Exxon Shipping Co. v. Baker the Court was divided 4-4 (Justice Samuel Alito did not participate in the decision because he owns stock in Exxon) on whether “maritime law allows corporate liability for punitive damages based on the acts of managerial agents”, so the Court left the Ninth Circuit’s opinion “undisturbed.” The Court also held that the Clean Water Act’s water pollution penalties “do not preempt punitive-damages awards in maritime spill cases”, and that the “punitive damages award against Exxon was excessive as a matter of maritime common law [and]…the award should be limited to an amount equal to compensatory damages.”

Regarding the third holding the question in Exxon Shipping Co. v. Baker was what ratio between punitive and compensatory damages would be appropriate or reasonable. The Court did not use a constitutional analysis or argue whether the state-court award violated due process, because Exxon Shipping Co. v. Baker took place under federal maritime jurisdiction. As a result, the Court applied judge-made federal common law, because federal question jurisdiction exists in maritime actions so federal law is applied. Over the years, where federal courts have subject matter jurisdiction they have developed their own federal common law.

Furthermore, the Court went through an interesting history of damages and investigative analysis of the role of punitive awards. The Court looked at how different states use punitive awards, and (some states do not allow punitive awards) the Court even compared the United States’s use of punitive awards with other countries. Apparently, the use of punitive damages in the United States is more robust. The Court performed a summary analysis on punitive damages, because it wanted to emphasize that punitive awards do not compensate. This emphasis was important for the holding.

The Court argued that if the $2.5 billion award would be allowed then the punitive to compensatory damage ratio would be an outlier. Additionally, a higher amount would fly in the face of how lower courts have traditionally applied punitive damages. The Court was seeking reasonableness. To do this, the Court examined data across all types of cases that awarded damages. The Court was looking for a median ratio that would give an indicator of what a reasonable ratio between punitive and compensatory damages looked like.

However, the Exxon Valdez disaster itself was an outlier. It was the worst anthropogenically-caused environmental disaster in America’s history and one of the worst anthropogenically-caused environmental catastrophes in the world. The affects from the oil spill are still being observed in the ecosystems and fisheries of the spill area in Alaska.

Why should Exxon pay out a $2.5 billion punitive award? First, Exxon knew of Captain Joseph Hazelwood’s drinking habits. In fact, the Captain was still drunk many hours after the accident. The Captain stopped going to Alcoholics Anonymous meetings. He drank all over Alaska including with Exxon officials. Furthermore, management knew of his problem. Witness testimony noted that before “the Valdez left port on the night of the disaster, Hazelwood downed at least five double vodkas in the waterfront bars of Valdez, an intake of about 15 ounces of 80-proof alcohol, enough ‘that a non-alcoholic would have passed out.’”  Second, Exxon’s profits in 2007 were $40.6 billion.

The Court justified a lower punitive award, because punitive damages are to punish and not to compensate the plaintiff for their loss. However, given Exxon’s reprehensible behavior and record profits the Court should have used a higher number to send the message that such conduct will not be tolerated. A few million dollars is not going to send the proper message to a multibillion-dollar company that continues to make record profits amongst high fuel prices. The Court scrambled to find reasonableness but it failed.

On the Net: Fishers argue that lawyer’s fees in the Exxon case were not excessive and worth it - scroll down and see comments
On the Net: Environmental Punitive Damages Awards and Due Process: Lessons Learned from the Exxon Valdez Oil Spill
On the Net: A letter to the California Court of Appeal regarding damages
On the Net: Exxon Valdez oil spill lingers in Alaska
On the Net: ENVIRONMENTAL LAW: A rough guide to understanding the damages awarded and reduced in the Exxon Valdez case

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According to the CNNMoney.com “[T]he punitive damages award should be brought into line with compensatory damages calculations made by lower courts earlier in the litigation.” Therefore, the award was reduced to $507.5 Million to reflect previous compensatory damages calculations.

On the Net: EXXON SHIPPING CO. v. BAKER: Supreme Court did not apply a constitutional standard in Exxon Shipping Co. v. Baker
On the Net: ENVIRONMENTAL LAW: A rough guide to understanding the damages awarded and reduced in the Exxon Valdez case

According to the Associated Press the Supreme Court is meeting this morning to decide some “major cases still unresolved [that] include the ban on handguns in Washington, D.C., whether people convicted of raping children can be given the death penalty and the $2.5 billion punitive damages judgment against Exxon Mobil Corp. for the Exxon Valdez disaster.”

On the Net (UPDATE): EXXON SHIPPING CO. v. BAKER: Supreme Court did not apply a constitutional standard in Exxon Shipping Co. v. Baker

Yesterday the Supreme Court Justices agreed to debate whether the Navy can ignore environmental regulation. At issue is the United States Court of Appeals for the Ninth Circuit enforcing environmental regulation versus a perceived stronger need for national defense.

There is strong evidence that the use of low- and mid-frequency active sonar may adversely harm marine mammals by causing injury through some combination of barotrauma, hemorrhaging, stranding, and trauma. For example, deep-diving pelagic cetaceans like the Cuvier’s beaked whale (Ziphius cavirostris) rarely strand en masse. When strandings of such deep-diving marine mammals do occur they are associated with a “meaningful proximity of military [maneuvers].” It would be interesting to discuss the possibility of predation on injured whales that suffer acoustic induced trauma before they become stranded.

The case, Winter v. Natural Resources Defense Council will be heard during the Court’s next term, which begins October 2008. The questions presented for the Court include:

The district court found a likelihood that the Navy failed to comply with the National
Environmental Policy Act (NEPA) and preliminarily enjoined the Navy’s use of midfrequency
active (MFA) sonar during training exercises that prepare Navy strike
groups for worldwide deployment. The Chief of Naval Operations concluded that the
injunction unacceptably risks the training of naval forces for deployment to highthreat
areas overseas, and the President of the United States determined that the
use of MFA sonar during these exercises is “essential to national security.” The
Council on Environmental Quality (CEQ), applying a longstanding regulation,
accordingly found “emergency circumstances” for complying with NEPA without
completing an environmental impact statement. The Ninth Circuit nevertheless
sustained the district court’s conclusion that no “emergency circumstances” were
present and affirmed the preliminary injunction. The questions presented are:

1. Whether CEQ permissibly construed its own regulation in finding “emergency
circumstances.”

2. Whether, in any event, the preliminary injunction, based on a preliminary finding
that the Navy had not satisfied NEPA’s procedural requirements, is inconsistent

On the Net: PROCEEDINGS OF THE WORKSHOP ON ACTIVE SONAR AND CETACEANS
On the Net: Ad-Hoc Group on the Impact of Sonar on Cetaceans

There will be no Exxon Shipping Co. v. Baker (Exxon Valdez punitive damages) decision released today. The decision is eagerly awaited because it will end almost 20 years of litigation. Furthermore, the case may be pivotal in redefining the role of punitive damages in U.S. tort law. The case is still on the Supreme Court of the United States docket but a decision is due before the Court begins its summer recess scheduled later this month.

On the Net (UPDATE): EXXON SHIPPING CO. v. BAKER: Supreme Court did not apply a constitutional standard in Exxon Shipping Co. v. Baker
On the Net: ENVIRONMENTAL LAW: A rough guide to understanding the damages awarded and reduced in the Exxon Valdez case

While reading my criminal procedure assignment, I came across a very applicable quote in Mapp v. Ohio quoting Mr. Justice Brandeis in Olmstead v. United States. The quote speaks to the danger of our government ignoring and manipulating the law. The Bush Administration continues to circumvent, ignore, manipulate, and override environmental laws and precedent in order to impose their agenda.

Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example….If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

Image Found Here

The perception exists that instrumentalities capturing renewable energy from resources such as the sun and wind will have little or no impact on the environment because these projects are labeled green. The complete opposite is true. Since humans began separating themselves from Nature by converting her parts or raw materials into artifacts with a utility the impact on Nature has been severe. In my view, nature is socially constructed but we should still preserve the environment. Untouched virgin wilderness exists nowhere. Whether it is the impacts from anthropogenically-produced particulates, plastic bags, invasive species or carbon – we have changed Nature into something reflecting our will. That reflection can either be attractive or ugly. It is our choice. Conservation and preservation is a difficult task and one neighbor being a nuisance to another is nothing new. The more people begin to use solar energy the more likelihood of normal everyday conflicts occurring. Cape Wind is another conflict that pits a green movement against a greener movement. Of course, which is the greenest is the issue. From CNN:

The couple does not plan to appeal the ruling because they can no longer afford the legal expenses, but they plan to lobby state lawmakers to change or scrap the law.

The Solar Shade Control Act means that homeowners can “suddenly become a criminal the day a tree grows big enough to shade a solar panel,” Treanor said.

The case marks the first time a homeowner has been convicted of violating the law, which was enacted three decades ago, when few homeowners had solar systems.

The law requires homeowners to keep their trees or shrubs from shading more than 10 percent of a neighbor’s solar panels between 10 a.m. and 2 p.m., when the sun is strongest. Existing trees that cast shadows when the panels are installed are exempt, but new growth is subject to the law.

Image Found Here

by Buck Denton

Exxon continues to report record-breaking quarterly profits. The most recent was $11.7 billion. However, Exxon on Wednesday asked the U.S. Supreme Court to strike down the $2.5 billion punitive damage award for the 1989 Exxon Valdez oil spill. Originally, a trial court jury awarded $5 billion in punitive damages and $287 million in compensatory damages. Damages are important in tort law because they make the injured party whole again or seek to put the party in the position had they never met the defendant. Additionally, tort damages act as a mechanism to punish and deter.

A tort action results from a civil wrong committed against another person or when a breach of duty to another person occurs. As a result, the law allows for recovery in the form of damages for the civil wrong or injury. Assault, battery, trespass to land, or chattels in addition to negligence are examples of tort actions. Several types of damages are available to the plaintiff.

An introduction to tort damages

The plaintiff must prove some type of harm to be awarded damages. Economic, environmental, and psychological damages resulted from the Exxon Valdez oil spill. Commercial and native fishing communities suffered loss profits including future economic losses. Additionally, their social institutions were disrupted. It could be argued that recreational fishers suffered too.

The psychological impact from the sheer magnitude of the spill is a complex issue. Environmental damage can be hard to quantify and understand. Exxon claimed the area affected by the oil spill recovered quickly. However, the negative affects of the Exxon Valdez oil spill still linger.

Prince William Sound provides an ecosystem service in the form of food. Loss profits from reduced fishing effort and damaged fishers are easily quantifiable. Therefore, it is easily argued that the plaintiffs suffered massive damages from the Exxon Valdez oil spill and are still suffering. Federal permits to fish are worthless if there are no fish to catch. Boats must be maintained and banks need to be paid. As a result, the plaintiffs must be made whole again or put back in the position they were before the spill.

There are three types of damages in torts: nominal, compensatory, and punitive. Nominal damages are awarded to affirm the fact that someone did something wrong although no damage resulted. Trespass to land cases may award nominal damages. However, most damages in tort claims relate to compensatory damages, which are used to make the plaintiff whole again. Compensatory damages compensate the plaintiff for a wrongful act or anything that can be traced to the wrongful conduct. Punitive damages do not compensate but are used to punish and deter. The plaintiff is not always allowed to recover punitive damages.

A jury determines damages; therefore, damages are a question of fact, which means that damages are a question for the jury because the law would rather have members of the community or a collective to determine a question of fact rather than one person. As a result, damages are arbitrary.

Punitive Damages

For Exxon to be punished with punitive damages, it must be proven that the defendant acted with (1) common law malice or in bad faith; (2) with the intent to injure or (3) with a reckless disregard as whether injury would have occurred. Common law malice is a dual standard: Intent or reckless disregard to whether an injury would occur. Therefore, the goal of punitive damages is to deter, punish, or enact retribution because of what happened.

Jurisdictions are split to whether the plaintiff may recover punitive damages if they have suffered no compensable harm. Some jurisdictions require compensatory damages before one may recover punitive damages, and some jurisdictions have allowed recovery of punitive damages on showing of nominal damages. What is more, some states do not allow the recovery of punitive damages.

Exxon Valdez

In 1994, a trial court jury in the Exxon Valdez case returned a verdict of $5 billion in punitive damages and $287 million in compensatory damages. The Ninth Circuit Court of Appeals final ruling reduced the punitive award to $2.5 billion. The punitive award was reduced because the court considered Exxon’s actions after the spill in mitigating economic and environmental damage. However, some argue that Exxon’s actions were not enough. In further lowering the punitive award, the Ninth Circuit considered the reasonableness of the punitive award by examining the ratio of punitive to compensatory damages. State Farm Mutual Automobile Insurance co. v. Campbell determined that single digit multipliers are reasonable and anything over a 9-to-1 ratio is probably unreasonable. However, some argue that punitive damages should be based on net worth and not necessarily a ratio between compensatory and punitive damages.

Exxon acted in bad faith when it knowingly placed a captain with a drinking problem at the helm of an oil tanker traveling through dangerous waters. In fact, Exxon admitted to knowing of Captain Joseph Hazelwood’s drinking problem. These facts were important in arguing for damages. Therefore, putting an alcoholic at the helm of an oil tanker traveling through dangerous waters reflected bad judgment. Exxon acted in reckless disregard as to whether injury would have occurred. Furthermore, Exxon should be responsible for its employee because it has a special employer/employee relationship. However, Exxon argued before the Supreme Court on Wednesday that it is not responsible for its employee nor should be responsible for punitive damages because the accident happened at sea. Federal courts have jurisdiction over maritime law but punitive damages are a matter of state law. However, some argue that punitive damages have been available in maritime law.

From NPR:

Stanford law professor Jeffrey Fisher, representing the Alaskan plaintiffs, counters that punitive damages have been available for hundreds of years in maritime law, “basically under the same circumstances they are available in tort law, when a defendant acts egregiously or in callous disregard for the rights of others.”

State Farm and the establishment of the single-digit ratio between punitive and compensatory damages

It has been constitutional to challenge the reasonableness of a punitive award but not a compensatory award. Therefore, the issue according to the Supreme Court of the United States is that the “Due Process Clause prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeaser.” Furthermore, the Court also noted “it should be presumed that a plaintiff has been made whole by compensatory damages, so punitive damages should be awarded only if the defendant’s culpability is so reprehensible to warrant the imposition of further sanctions to achieve punishment or deterrence.” The Supreme Court’s main point in State Farm is to be prepared to have a punitive award decision overturned if it is more than nine times greater than the compensatory damages awarded. Single digit multipliers will both reflect the State’s goals to punish and deter but also correspond with due process. However, the more reprehensibility the conduct and the more malicious the conduct the greater the award can be and on rare instances more than nine times has been awarded. The relationship of punitive damages to compensatory damages acts as a guidepost only.

Dissenting opinions in State Farm

In State Farm Ginsburg, Scalia, and Thomas did not believe there was a constitutional basis to take on punitive damages. The theme of the dissenting opinions was that if a state wants to punish they should be able to punish to whatever extent they want and that the Due Process Clause does not protect against excessive or unreasonable punitive awards. In addition, the decision in State Farm impedes on states’ rights to regulate and enforce punitive damages.

Why such a large punitive award?

Evidence of a defendant’s wealth is admissible in tort cases when punitive damages are involved. The evidence is relevant, because the award should be based on the harm done to the plaintiff and not on the defendant’s ability to pay. When it comes to punishment the jury needs to know what constitutes punishment. Therefore, wealth is an indicator of what will constitute punishment. The courts wants Exxon’s attention so at the next boardroom meeting the discussion is how Exxon can avoid liability or improve safety and not how Exxon can elevate profits. A million dollar award to a huge company like Exxon means nothing. The original $5 billion punitive award was used to get Exxon’s attention. Punitive damages must be absorbed with discomfort to the defendant. Troutman notes “the Court considered as a deliberate act that Exxon knowingly put a relapsed alcoholic at the helm.” As a result, but for Exxon knowingly putting a relapsed alcoholic at the helm of a major commercial tanker full of crude oil traveling through some of the most dangerous waters the accident would have never happened. In my opinion, Exxon should pay more than $2.5 billion and it can easily afford to do so. Exxon should have paid the $5 billion in 1994. Adjusted for inflation, $5 billion today is over $7 billion.

On the Net: Fishers argue that lawyer’s fees in the Exxon case were not excessive and worth it - scroll down and see comments
On the Net: Environmental Punitive Damages Awards and Due Process: Lessons Learned from the Exxon Valdez Oil Spill
On the Net: A letter to the California Court of Appeal regarding damages
On the Net: Exxon Valdez oil spill lingers in Alaska

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IMAGE: Agriculture Undersecretary Mark Rey makes his way into the Missoula, Montana Federal Court House for dropping the ball and causing his agency to violate the National Environmental Policy Act and the Endangered Species Act (AP Photo/James Snook)

Mark Rey is another example of the Bush Administration tweaking environmentalism and science to impose what it believes is best for the environment, our country and the world. Failed policies and poor management are frequent within the Bush Administration. Agriculture Undersecretary Mark Rey, who oversees the U.S. Department of Agriculture’s Forest Service and Natural Resources Conservation Service “dropped the ball” by not preparing environmental studies to determine how and if a flame retardant used by U.S. Forest Service influences the environment negatively. The retardant was responsible for fish kills on several occasions. In one incident that resulted in the lawsuit, 20,000 fish were killed in Oregon at Falls Creek in 2002 after the retardant was used.

President Bush nominated Mark Rey who is a former timber industry lobbyist. Why should lobbyists or special interest groups be allowed to manage the environment? Does conflict of interest mean anything?

I do not believe Rey completed scientific studies in good faith. Whether someone acted under good faith is determined by the subjective test. However, if a subjective/objective standard is applied then Rey must have acted in good faith and as a reasonable prudent or careful person would under similar circumstances. Therefore, to determine if someone was objective the reasonableness test is used. The tests may be combined. The analysis for the subjective standard is to look at the circumstances and the accused must tell the truth. Given the evidence it is easily argued that Rey had not been honest or acted reasonably at his post.

Another example of a Bush Administration official manipulating science was when Julie MacDonald the former deputy assistant secretary at the United States Department of the Interior resigned back in May 1, 2007 because of her involvement in manipulating species protection plans, violating the Endangered Species Act in addition to using her governmental authority to intentionally sabotage conservation work in the United States. She leaked undisclosed governmental information to impose the Bush Administration’s agenda upon conservation efforts by assisting the timber industry’s fight against the marbled murrlet or Brachyramphus marmoratus, a sea bird that nests in old growth forests.

It makes you wonder if Rey or MacDonald like “Brownie” or ex-Federal Emergency Management chief Michael Brown were ever competent or capable of doing their jobs. Governmental agencies are not prizes to be won or someone’s chance to act as puppeteer or even play God. These entities are complex and are needed to protect society and nature. Therefore, agencies require imaginative and objective individuals in order to be managed successfully. From New West, MT:

But Rey and the Forest Service were trying to prove—and will continue to do so Wednesday when the hearing continues—that the agency is not in contempt of the law and has, in good faith, complied with the National Environmental Policy Act and the Endangered Species Act.

Judge Molloy is presiding over a Forest Service Employees for Environmental Ethics 2003 lawsuit that claims the Forest Service, which Rey oversees, deliberately violated NEPA and ESA in its use of chemical fire retardant.

In a January ruling, Molloy wrote, “In my view, the Forest Service is in contempt of the law and the prior orders of this court”—the prior orders being to complete environmental analyses in a timely fashion.

President Bush’s decision to exempt the navy goes much deeper than just the navy versus whales. The much broader theme is that environmental degradation is the greatest threat to national security. Too bad President George W. Bush does not get it. History will not judge this President’s decision making favorably. From United Press International:

U.S. President George Bush invoked his constitutional right Wednesday to exempt the Navy from a federal law prohibiting the use of sonar in coastal exercises.

Earlier this month, the U.S. District Court for the Central District of California ruled the Navy’s use of mid-frequency active sonar in training exercises was not in compliance with the Coastal Zone Management Act designed partially to protect dolphins and whales, which are highly sensitive to sonar….

“Compliance … would undermine the Navy’s ability to conduct realistic training exercises that are necessary to ensure the combat effectiveness of carrier and expeditionary strike groups,” the White House statement said. “This exemption will enable the Navy to train effectively and to certify carrier and expeditionary strike groups for deployment in support of world-wide operational and combat activities, which are essential to national security.”

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Will people choose whales or submarines? Will people choose environmental or national security concerns? We cannot choose what part of the environment or environmental concerns we want to protect just because certain plans fit into a better anthropogenically usable model. The environment is too complex and unfortunately, we are still at Nature’s mercy even if we have much influence over it. From the New York Times, United States:

The ruling, issued Thursday by Judge Florence-Marie Cooper of the United States District Court for the Central District of California, orders the Navy to limit its use of medium-range sonar to an area beyond 12 nautical miles from shore. Closer to the shore, marine mammals have exhibited frenzied and disoriented behavior during the emissions of sonar blasts as part of the Navy’s practice missions.

Judge Cooper’s order also outlined safeguards, which include a monitoring session one hour before a military exercise to detect the presence of marine mammals, the use of trained aerial lookouts throughout exercises and a mandatory sonar shutdown when mammals are spotted within 2,200 yards of training maneuvers.

The ruling stems from a long-running legal battle between environmental groups, led by the Natural Resources Defense Council, and the Navy, which has argued that mid-frequency sonar is vital to the training of submarine seamen and other crews who now face a new generation of quiet submarines that cannot be detected by traditional passive sonar waves.

A spokesman at the Pentagon said Friday that the Navy was reviewing the judge’s ruling to determine its next move, which could include an appeal to the United States Court of Appeals for the Ninth Circuit.

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Image: The San Joaquin-Sacramento Delta

This court order will help preserve not only Delta Smelt habitat but water for human use too. It will also improve water conservation or management as well which is much needed across the United States.

From Central Valley Business Times, CA:

If 2008 is a dry year, State Water Project customers will receive 7 to 22 percent less Delta water than would have been available without the court decision.

If 2008 is an average water year, exports will be reduced 22 to 30 percent….

The actual impact on water supply will depend on a number of factors including the locations where adult smelt spawn and offspring hatch, levels of precipitation for the year, and water temperatures affecting how quickly the fish migrate, the state says.

On the Net: Center for Biological Diversity’s Factsheet for the Delta Smelt
On the Net: Delta Smelt Recovery, Sacramento Fish and Wildlife Office
On the Net: Delta Smelt Species Account, Sacramento Fish and Wildlife Office
On the Net: Delta Smelt Critical Habitat, Sacramento Fish and Wildlife Office

Delta Smelt image courtesy of Peterson, B. Moose / U.S. Fish and Wildlife Service

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From the Center for Biological Diversity:

In April 2004, the Center for Biological Diversity, Pacific Environment, Natural Resources Defense Council, and Trustees for Alaska — along with several Russian scientific and conservation organizations — filed a formal administrative petition seeking protection of the species. By law, the Department of the Interior was required to make an initial finding on the petition within 90 days and issue a proposed rule within one year of the petition. In June 2007, the Department of the Interior finally responded to the petition and concluded that the loon may warrant the protections of the Endangered Species Act. Today’s suit seeks to force the Department of the Interior to issue the overdue listing proposal.

On the Net: Center for Biological Diversity

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Late adopters never win in the auto industry. The change should have been made long before or should happen now. Otherwise, the industry will suffer even more loses. The industry is literally being dragged kicking and screaming into a more fuel efficient era. Simply poor management. From CBS NEWS:

In its lawsuit against the state, the auto industry argued that it was the federal government’s responsibility to establish one uniform fuel economy standard. Without one, manufacturers would be forced to produce vehicles using too many different efficiency standards.

They argued that a federal energy law passed in 1975 gives the U.S. Department of Transportation sole jurisdiction over fuel economy.

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Ignorance or mistake of law is no excuse (except in very limited cases such as if the law was not published, is unconstitutional…) and if it were allowed as a defense then imagine the consequences of a criminal mind claiming an “inability to grasp…highly technical regulations.” Imagine how many speeding tickets would be dismissed if ignorance or mistake of law were used as an excuse. Americans would all have cheaper car insurance. However, mistake of fact is a defense. From Yahoo! News:

Her client’s only offense, she said, was her inability to grasp Western attitudes and highly technical regulations regarding bushmeat.

Defense papers also argue that the U.S. demand for the meat involved in the Manneh case — from Africa’s green monkey population — is “too small to have any significance for conservation.”

Manneh, 39, testified last year that before arriving in the United States more than 25 years ago, monkey meat was critical to her religious upbringing.

At age 7, “I was baptized and they used that for the baptizing ceremony,” she told a judge.

Manneh is already serving a two-year sentence in state prison for trying to run over a woman she suspected of sleeping with her husband, Zanger Jefferson. If convicted of the federal charges she faces up to five more years in prison and deportation.

On the Net: Bushmeat Project
On the Net: Bushmeat Crisis Task Force
On the Net: FOOD FOR THOUGHT: THE UTILIZATION OF WILD MEAT IN EASTERN AND SOUTHERN AFRICA

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IMAGE: From “habitat for endangered species (no really)“

Arguing the importance of the Endangered Species Act by linking it as a regulatory tool that not only promotes endangered species conservation but healthy environmental and social landscapes

With recent headlines in the press stating (1) “Rancher Kills Wolf to Save Cattle, Violates Endangered Species Act,” (2) “Lowly snakes win out against NJ developers,” (3) “Water users to sue power plants over troubled delta fish,” and (4) “Action to relieve drought: Amend Endangered Species Act,” it appears that the Endangered Species Act (ESA) is a nuisance infringing upon the American Dream, but how can the ESA help both endangered species and Americans? Should we protect ostensibly insignificant species such as beetles, frogs, and snakes? Is the ESA a back door government scheme to take private land without just compensation?

Historical backdrop: The birth and growth of environmentalism
The ESA is unique. It is the oldest and most comprehensive environmental statute in the world. It is difficult to envision the ESA being constructed today in a Washington D.C. influenced by neoconservative ideologues, partisanship, and poor lobby reform.

The ESA was signed into law on December 28, 1973, by President Nixon during a very different political and social backdrop than today. American land was still rural and information moved much slower. Furthermore, Rachel Carlson’s “Silent Spring” had just been a catalyst for the environmental movement, since it exposed how the chemical industry sickened the environment and our health. The book also resulted in the ban of DDT.

“Silent Spring” influenced policy making and signaled the split from Rooseveltian style conservation to more present-day diversified themes of environmentalism such as deep ecology, eco-feminism, environmental racism, green democracy, green Christianity, and even green conservatism. These diverse offshoots from plain vanilla conservation all seek to conserve landscapes by preventing and ceasing environmental degradation (arguably green conservatism as a movement is the weakest link). How and for what reasons they achieve the conservation of landscapes defines each philosophy.

Bounded by the supreme Law of Nature
The ESA must conserve landscapes to save endangered species.  Conserving landscapes with natural resources is important, so why should we conserve and not metabolize resources unsustainably? Isn’t it our right to have a green law, drive a hummer, develop real property, and engage in commerce?

The cold reality is that the American Dream is controlled by a limited availability of resources and space, and certain Laws of Thermodynamics magnify our quandary. The first two laws are more relevant to our pickle. The first law states that matter cannot be created or destroyed, and the second law states that closed systems are at the mercy of entropy. Entropy is the unavailability of heat energy, which is needed to produce work. The rate of entropy increases as unsustainable consumption increases; therefore, the quality of resources available for human consumption or use degrades. For example, we take useable resources and convert them into a state that is unusable: wood to ashes, oil to carbon dioxide, food to feces, goods that can be recycled and reused into landfills, and eventually life is exchanged for death. Therefore, to preserve the future availability of natural resources, we must practice infuse sustainability into development and how we live as much as possible, since capitalism is inherently destructive to Nature as it seeks to commodify or metabolize natural resources for profit.

So what does the ESA have to do with entropy and consumption? Under the ESA, damage to critical habitat must be mitigated and available for endangered species to live. This protection inadvertently creates a savings of natural resources that we can bank from or recover responsibly (think ecosystem services, clean water, and clean air). Too much human influence results in unnatural land that isn’t useable by most wildlife and arguably at some point humans too.

The Malleability of Nature
Most Americans live outside of Nature.  Nevertheless, we are bound to its whims, even if Nature is largely socially constructed by our own actions. By socially constructed, I mean ideas such as the unnatural increase in hurricane activity due to anthropogenic warming of the Gulf of Mexico, unintentional and intentional release of non-native species, release of pollution into the atmosphere and oceans, extinctions, etc.

Arguably Nature no longer exists as a great wilderness, since it has been deconstructed and reconstructed constantly according to agenda, law, policy, or human desire. Show me what you think is wilderness anywhere, and I will show you beer cans, effluent, increased carbon dioxide levels, invasive species, and pollution of all type—a trail of human froth and mess both intended and unintended negatively impacting life on Earth.  

Furthermore, how did first Nature look and behave?  Certainly, we have forgotten, so no one knows.  

The ESA as a command and control mechanism is a tool that prevents, mitigates, and recovers this damage to the environment. The ESA conserves green spaces, thus providing habitat for all wildlife not just endangered wildlife. Green spaces provide an experience for people, which is hard to quantify but remains valuable and necessary for a healthy working mind nonetheless.

Furthermore, landscapes and certain species are indicators to our own health, so a small and seemingly insignificant species we might find unappealing may be a key indicator of our surrounding environment’s health. Those small insignificant species may be crucial to the survival of flagship species, which are well known.

As American consumption continues to grow so will habitat degradation, loss and fragmentation. As the shrinking and fragmentation of natural landscapes occurs, an increase of human-wildlife conflicts will result. Therefore, the ESA will draw more attention as it affects people’s lives. Like our Constitution or the Civil Rights Act, the ESA represents an ideal. The ESA cannot be manipulated or mitigated for political gain but it must continue to exist as a strong regulatory tool which we use to save ourselves from extinction.

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On the Net:

1. History of the ESA
2. The Endangered Species Act and Claims of Property Rights “Takings”: A Summary of the Court Decisions
   
3. THE ENDANGERED SPECIES ACT AND PRIVATE LANDOWNER INCENTIVES
   
4. The Endangered Species Act: Saving Species or Stopping Growth?