Essay: Bottled GreenwashBy Anthony Henry Smith
Some may think Robert F. Kennedy, Jr. should recuse himself from NY Governor Cuomo’s 13-person committee on fracking simply because he is the governor’s ex brother-in-law, but how many are aware of an additional conflict? If fracking poisons any part of the state’s drinking water supply, public reaction will certainly result in increased profits for Kennedy’s not-for-profit bottled water company and for his associates in the for-profit bottled water industry who even now are importing water from places almost as remote from one another as they are from New York.
Kennedy’s idea of selling water and donating all profits after expenses to environmental causes is contradictory on the face of it. The manufacture and distribution of bottled water does more damage to the biotic and physical environment than the so-called profits could possibly mitigate.
Glaciers in Norway are melting due to global heating. Some of this melt water is shipped by tanker to North America where it is distributed widely as bottled water. On the other side of the planet, potable water from the South Pacific island nation of Fiji is shipped to 40 countries around the world, even though those who live and work there have suffered from water shortages.
The distribution area for exotic water includes New York, and fracking obviously would greatly increase bottled water sales in the state. Fracking in New York is all the more likely if Kennedy, who has recently and only half-heartedly spoken out against fracking nationally, continues to waffle on fracking in New York
When Kennedy was scheduled to appear for a radio interview on Susan Arbetter’s April 23rd“Capitol Pressroom” program on Northeast Public Radio, he was late, which automatically gave a lot of airtime over to an experienced communications professional who supported fracking by repeating the industry’s examples of magical thinking propaganda. He actually implied that New York somehow benefits because many parts of the US are forced into sacrificing their well being to increase profits in the energy industry. Now it was New York’s responsibility to do the same. He said we need to do a “gut check.” I did the moment he said it and can’t repeat here what my guts told me to write in response. Neither my guts nor I were there to tell him directly. Neither was Kennedy.
When Kennedy did finally arrive, he spent what little of his time was left giving the views of frackers without seriously opposing them.
What are we to make of such conduct? This was not lying on Kennedy’s part, since lying consists of identifying the truth and stating its opposite. This appears to be a total disregard for the truth, an all too common manipulative device identified by Harry Frankfurt; concisely and well described by Frankfurt in the opening of “On Truth,” which is quoted in the first paragraph of this link. (See: http://politicsandlanguage.wordpress.com/2011/06/09/the-essence-of-bullshitting
Arbetter opened her interview by directly asking Kennedy to state where he stood on the issue of fracking. His half-hearted response spoke volumes, suggesting that although he had been for fracking and now opposed it, he might support it if the regulatory agency were strengthened to do its job. When Arbetter asked if he thought the DEC was that regulatory agency Kennedy simply ignored the question and changed the topic. With minutes left to go, Arbetter stated “I need to know from you (in) what aspects the DEC’s review was inadequate.” The inadequacy of Kennedy’s reply was in itself remarkable. At the very moment when he had finally exhausted the topic of “roads,” Time politely drew the curtain as it must, forcing Kennedy to an immediate close with the truncated words “health issues” still clinging to his lips. But as the Royal Society has been saying since 1660, Nullius in verba. (Take nobody’s word for it.) Click on the link below and listen for yourself. And while you’re listening, notice how professionally Susan Arbetter conducts this interview with one who is not only late, but unapologetically so.: http://blogs.wcny.org/the-capitol-pressroom-for-april-23-2012/
During the interview Kennedy told Arbetter that “a lot of people like myself look at natural gas as a bridge fuel” and then went on to explain that he now thought differently. Apparently his change of heart did not come timely enough to enable Riverkeeper to engage a credible staff scientist for their September 2010 report titled “Fractured Communities.” Riverkeeper’s remarkable choice was William Wegner, a convicted environmental felon, perjurer, and tax fraud who has been described by a Riverkeeper board member in terms usually reserved for bargain basement specials: “I believe we got a very brilliant man at a discount price because he made a mistake.” (Brock, Pope, “RFK Jr.’s River of Trouble,” Talk Magazine, October, 2000, p 58)
Eight years of wildlife smuggling can hardly be dismissed as a simple “mistake,” especially when combined with perjury and tax fraud. These are not qualities one might reasonably expect to find in persons working on the staff at Riverkeeper.
Wegner’s prison sentence seems to have done little to improve his ethical sense. The resume Wegner submitted to Riverkeeper accounts for his period of incarceration without referring to the fact of the incarceration itself. Wegner describes work he performed and omits the significant information that he performed this work while he was serving time as a prison inmate. Wegner submitted this resume to Kennedy, who accepted it and then forwarded it to Boyle, who totally and immediately rejected it.
By the way, whatever did happen to Robert H Boyle, the authentic founder of Riverkeeper, the single individual who actually created the concept of Riverkeeper in America and the Waterkeeper Alliance back in the days when Kennedy was still busy living his life as a drug addict? Did he retire? Is he still alive? How is he being recognized and honored by a grateful environmental community for his lifetime of dedicated accomplishment? That polymath and naturalist who famously and compassionately trusted and mentored Mr. Kennedy in Kennedy’s time of adult crisis; what ever became of him?
When the Riverkeeper board voted 13 to 8 to accede to Mr. Kennedy’s demand to hire Mr. William Wegner as staff scientist over Boyle’s objection, Boyle resigned on the spot and 8 other board members followed him in resignation. But take nobody’s word for it. Evaluate it for yourself in this link to: Robert Worth, A Kennedy and His Mentor Part Ways Over River Group, The New York Times, Sunday, November 5, 2000 http://www.nytimes.com/2000/11/05/nyregion/a-kennedy-and-his-mentor-part-ways-over-river-group.html?pagewanted=all&src=pm
Also see: Pope Brock, RFK Jr.’s River of Trouble, Talk Magazine, October, 2000, p. 53-58.
By including Mr. Kennedy’s participation as a member of the committee to advise him on fracking, Governor Cuomo advances the illusion that environmental activists of all stripes have a voice in this forum, simply by virtue of Mr. Kennedy’s presence. Kennedy can publicly and half heartedly oppose fracking, while Cuomo can respectfully agree to disagree and overrule Kennedy. The environmentalists have been heard!
Can Riverkeeper or Waterkeeper Alliance possibly break ties with an oligarch who can raise large sums of money, even while he is out to make the world safe for exploitation by his associates in the greenwashed bottled water industry?
How can they not?
May 13, 2012
Poughkeepsie, New York
EDITOR: At 7 p.m. on Nov. 14, 2011, in spite of 22,094 comments objecting to this project, 35 bi-partisan Pa. state representatives, 2 state senators, the EPA, the Sierra Club, Damascus Citizens for Sustainability, and many other organizations across Pa., the Federal Energy Regulatory Commission approved and granted a certificate to Inergy/CNYOG to begin construction on the MARC-1 Pipeline Project. With this certificate, FERC has granted them the power to exercise eminent domain on private property owners who can not agree to their terms, or simply chose to say No to having a 30″ pipeline run across their property, even if it means the loss of use of that property by the property owner for agriculture, farming, recreation, or simply to have a safe, quiet property where we can raise our families, or pass on to future generations.
To add insult to injury, the environmental protections, setbacks from residential areas, upgraded materials and safety standards have apparently been removed from their application. They will primarily be using “class one” safety standards, which means minimum safety precautions and materials, minimum noise control [if any], and emission/pollution controls.
It will also be the enabler for virtually hundreds of unregulated gathering lines, an unknown number of compressor stations, and turn New Albany, Monroeton, Dushore, Laporte, Lake Mokoma, Sonestown, Muncy Valley, Beech Glen, Glenn Mawr, Picture Rocks, and Hughesville into a drilling corridor for the gas industry. This signals the end of agriculture, tourism, fishing, hunting, new home building, small businesses, as well as our way of life in the Endless Mountains. It will also have a devastating effect on property values, quality of life, public health and safety, while ultimately increasing property taxes to offset the damage to our already fragile infrastructure. Corporate profits will socialize the cost to those who live in the most heavily impacted areas.
This permit, along with HB 1950 and SB 1100 that will remove, and prompt the right of municipalities to enact their own regulations, ordinances, laws, protections, and safety standards regarding oil and gas development in and around our communities.
In short, life as we’ve known it is now over for Bradford, Sullivan and Lycoming counties, and life across rural Pa. This change will not be for the better. A 7- to 10-year “boom/bust” cycle, which we are already 3.5 years into, will leave rural Pa. a toxic and unlivable industrial and economic wasteland when all those “industry jobs” move on.
We owe our children, and our children’s children yet to be born, an apology for leaving this world in far worse shape than we received it, and for the burdensome financial responsibility for it they will inherit.
I’d like to remind everyone to take the opportunity to appropriately thank our obtuse local (Sullivan County Commissioners; Darla Bortz, Betty Reibson, and Bob Getz,) (Bradford County Commissioners John Sullivan and Doug McLinko) and state/federal lawmakers (Senator Pat Toomey and Congressman Tom Marino), who went out of their way to “urge FERC to overlook the concerns and interests of local citizens and approve the MARC-1.”
At this point, considering the FERC approval, and the horrific legislation poised to be passed, I no longer see a political solution, legislative remedies, or effective legal recourse to what is being forced upon us by the gas and oil industry with the consent of our elected leaders. Beyond an environmental problem, and a health and public safety problem, the bigger issue is that we have a democracy problem and a leadership problem in Pennsylvania that is bi-partisan.
Our system of government has morphed into a corrupt “corpocracy” whose goal is to control us by taking control of the essential ingredients of our existence: affordable and sustainable energy, pure water, clean air, and our sense of place.
This morning, I awoke in the security of my “home.” Tonight, I will lay down in just a “house” that I happen to own that has not had safe potable water for two months, and may never have again. I no longer have a “sense of place,” or a feeling of “home” here, knowing that I have no voice, no rights as a PA citizen/property owner, and am of no concern to political/corporate the powers that be. I am, as we all are now in Pennsylvania, politically insignificant, and simply “in the way” of the gas industry’s corporate special interests.
Click on icon to go to Elizabeth Burns’ blog
See RSS feeds in right sidebar for her recent posts
Elizabeth has now been subpoenaed by Chevron
for publicizing their poor performance.
Our neighbors in Tonawanda, on the Niagara River in western New York State just south of Buffalo, were being poisoned for decades by a company that, unlike the gas/oil industry, does not enjoy exemptions from clean water, clean air, toxic waste laws and other regulations set in place to protect our environment and health.For many years regulatory agencies DEC (NYS) and EPA (federal) ignored residents’ complaints of foul air and physical ailments, outrageously high rates of cancer and other diseases, and benzene levels 500 TIMES HIGHER than what is considered the highest acceptable level in state guidelines. Not only benzene, but other highly toxic chemicals were being released over decades into the air and water by a company called Tonawanda Coke Corporation. (No doubt others of the 50 or so industrial polluters that have PERMITS in Tonawanda contributed even more.).From the piece:Joe Martens, commissioner of New York’s Department of Environmental Conservation, defended the record of his agency, which eventually set up high-tech air quality monitors that documented extremely elevated benzene levels, leading to the enforcement actions. But he said such sophisticated equipment had not been available previously. So state officials had no way of knowing about the benzene, formaldehyde, and other toxic emissions seeping from leaks in equipment and piping at the plant, Martens said. “Hazardous air pollutants are difficult to detect. We didn’t have the equipment to do the type of detection — you know, police work — that EPA was able to do” later.After reading this, what kind of idiot would say, “Hey, sure the DEC and DEP and EPA will protect us from being poisoned by industry”? Ask the people of Tonawanda, many of whom have become very sick and some of whom have died because of the toxins dumped on them by this single iron-smelting factory..Yet we are to trust that the DEC and other flaccid regulatory agencies will protect us from Big Gas and related industries and their fracking and related machines? No way, Jose! We must tell the DEC and the governor that no amount of regulation is acceptable. DEC (and DEP and other states’ agencies) regulations are not acceptable. Only a full and total ban on industrial poisoning from fracking and other industries is acceptable..Read the great investigative piece on Tonawanda citizens who fought back against the polluting company, which was FINALLY CHARGED IN CRIMINAL COURT because poisoning us and our communities IS A CRIME and thus should be in the criminal code. Every one of the corporate officers and senior staff should serve serious jail time and pay heavy financial damages to those they poisoned. Not that any amount of money could restore the poisoned people’s lives or adequately compensate for their losses.
This piece is part of a fine, scary, and eye-opening new series by the Center for Public Integrity in concert with Slate and NPR, called “Poisoned Places.”As often happens during in-depth investigations — an unexpected discovery. Reporters learned that the EPA maintains a “watch list” that includes serious or chronic Clean Air Act violators that have not been subject to timely enforcement. Two versions of the internal list, never previously made public, were obtained through the Freedom of Information Act. (More about the watch list here.)
Congratulations to the investigators, researchers, writers, editors, publishers, and funder of these important pieces. May they awaken people to the dangers we face and help them force change to protect and sustain the places we live, the air we breathe, and the lives we hope to continue leading.
- Maura Stephens, independent writer, associate director of the Park Center for Independent Media, and a cofounder of Coalition to Protect New York
Dear Mr. Applebome,
How could a reporter as good as you have missed the actual story of the voter sentiment and the politics surrounding gas drilling in the region you discussed?
With respect, the real story is the overwhelming opposition to gas drilling among the voting population in the region you covered. Personal conflicts in town disputes concerning land use is not news. This story, based on the facts, is not neighbor verses neighbor, but rather a few large landowners (and the gas industry) against a huge majority of the population and the voters in the region.
Polls consistently show that between 70% and 90% of voters are opposed to gas drilling where local and regional polls have been done—across Otsego, Delaware, and Sullivan Counties. This includes polls done by towns and professional polling companies. Further west when local polls have been done, similar results have occurred.
The story is the overwhelming local opposition, and the plan of governor to ally with the gas companies to act against local voters and their governments, and attempt to eviscerate local land use regulation that is guaranteed by the NY State Constitution.
Among many recent polls showing voter opposition in Otsego County, was one done by the government of the Town of Hartwick in Otsego County which showed overwhelming opposition to gas drilling. (79% opposed, 16% in favor, 3% undecided). Hartwick is definitely not a haven for retirees and second homeowners. Hartwick recently welcomed the building of a large newly completed USDA slaughterhouse on the main street through town, hardly the type of development that your analysis would expect from local opponents to gas drilling (who you suggest are yuppie nimbys). Yet the people of Hartwick understand that meat processing capacity is critical to local farming, and that gas drilling has nothing whatsoever to do with farming. It’ s unrelated investment from which some landowners—including some farmers—would like to profit, at the expense of their neighbor who will be net losers. Hartwick’s town government, which gladly approved the new slaughterhouse, is now planning a local law to ban gas drilling. People in farming communities see through the false claim that gas drilling helps farming, and see through efforts by gas companies to put farmers up as poster children for a type of industrial development which threatens farming. Farmers know what helps farming.
In a survey this year, specifically of farmers in Meredith—where I live and farm— more farmers listed gas drilling as the largest threat to the future of their farm when given a list of threats (which also included taxes, high fuel costs, labor issues, machinery costs). The was survey run by the town government as part of a NY State grant to create a farmland protection plan.
This month, a poll by a professional polling company (Pulse Opinion Research) of 500 randomly selected residents in both Sullivan and Delaware County asked two questions.
Do you support natural gas extraction by means of hydraulic fracturing in your town?
No Yes Not sure
Delaware County 72% 27% 1%
Sullivan County 69% 26% 4%
Would you support your town enacting zoning ordinances to restrict natural gas extraction by means of hydraulic fracturing?
Yes No Not sure
Delaware County 69% 27% 4%
Sullivan County 69% 24% 7%
There are numerous other polls with similar results that can be cited.
Again, “he said, she said” misses the story. It is a story of overwhelming local opposition to hydrofracking. It is a story of gas companies attempting to use state government power to violate local land use regulations and voter sentiment, and impose their will on this region.
For the story to which Ken Jaffe responds, see NYT story: Drilling Debate in Cooperstown, NY, is Personal
Independent Coalition of Citizens Against Fracking
For Immediate Release
September 20, 2011
Grassroots Groups Expose Bias of Cuomo’s Fracking Advisory Panel in Report Released Today
Report available at GasMain.org
New York State’s recently named Hydraulic Fracturing Advisory Panel is stacked with appointees who have already made clear they’re on the side of the gas industry’s plan to industrialize the state, say grassroots organizations from around New York. The panel was established by Governor Andrew Cuomo’s DEC commissioner Joe Martens in early July – just a week after the governor ended the de facto statewide moratorium on hydraulic fracking.
In a report released today, the grassroots groups show that the panel is dominated not only by industry representatives and industry-paid academics, but also by representatives of national groups that claim to be working to protect the environment but actually are on record as being promoters of so-called “natural” gas.
“The large national organizations’ coziness with polluting industries, Albany and Washington explains their repeated betrayal of grassroots efforts to protect communities and the environment,” said Robert Jereski of New York Climate Action Group, a grassroots environmental organization focused on climate change and ending industrial logging of old growth forests. “These national groups were chosen by Cuomo because he knew he could count on them to support the false notion of ‘safe’ fracking.”
Members of grassroots environmental, civic and community organizations from across the state, who have been educating themselves and others about fracking for several years, are sure the Advisory Panel’s forthcoming report will contain no surprises.
Finger Lakes-based Lisa Wright, a longtime activist on shale issues, pointed out, “New Yorkers and most people throughout the world who have looked closely at unconventional gas development know that fracking for gas is seriously problematic. Organizations that call themselves ‘environmental’ need to stand up for our communities and act like forward-thinking stewards of the earth, not shale-gas salesmen.”
Cecile Lawrence of Tioga Peace and Justice, Green Party NYS 2010 candidate for U.S. Senate and 2011 candidate for Tioga County Legislature commented “From the moment he began his campaign for Governor of NYS, Andrew Cuomo insisted on being vague regarding his stance on the fracking of the state. Through the makeup of this panel of fracking advisors he has shown that he clearly has allied himself with fossil fuel based monied interests. The lack of presence of anyone from a true grassroots organization grounded in the people of the state whose lives and livelihoods are at stake shows that Cuomo needs an education as to whom he was elected to represent.”
Carl Arnold of Chenango, Delaware, Otsego Gas Drilling Opposition Group (CDOG) also sees pro-“safe” drilling agendas driving some of the larger, supposedly green groups represented on the panel. “Some groups surely know that drilling can never be safe, yet are fudging on a ban,” he said. “This contradiction is made clear when one examines the connections between multinational polluters, large financial and law firms, the oil and gas boys and some well-known NGOs that claim to be protectors of the environment. Those connections raise the obvious questions: What do they receive from the deep pockets of the oil and gas industry? How can they work with those folks?”
The focus of many allied upstate and downstate activists is Part 2 of a just-released report (available at gasmain.org) on the Cuomo advisory panel members who were purportedly appointed to represent the environmental movement.
Coalition to Protect New York is a collective of organizations around the Finger Lakes, central, western, and Southern Tiers regions. “We’ve learned from painful observation and experience,” said one of the coalition’s cofounders, Jack Ossont of Yates County, “that there is no way to ‘regulate safely’ this destructive industrial process. That’s why informed New Yorkers as well as people across the country are demanding that it be banned.”
Adds a fellow CPNY cofounder, Kate Bartholomew of Schuyler County, “Even with our huge and growing movement, the governor’s panel hasn’t got a single member representing our position. To use taxpayer money — our money — to establish this panel and to promote fracking using these discredited ‘environmental’ organizations and industry insiders is not only the opposite of good representative government; it’s downright deceitful.”
In the report released today by the grassroots alliance, familiar groups such as the Natural Resources Defense Council, National Sierra Club, Riverkeeper and many others, including New York State level groups, are examined. Their collusion, as well as the incestuous connections between the industry, Governor Cuomo’s advisers, and vendors hired by his administration and his regulatory body, are a major threat to representational government in our state. In July the Albany Project reported that a vendor paid by DEC to conduct an “independent” economic study of proposed fracking has no expertise in such analysis. The firm is also a paid consultant for big oil and gas clients.
“That’s antidemocratic and unethical,” said Dave Walczak of Bath-based Citizens for Healthy Communities. “Besides, if the governor and Department of Environmental Conservation needed a study on community impacts, to save taxpayers the costs of this so-called ‘independent study,’ all they had to do was drive across the Pennsylvania line below Elmira. What you see there is not what we want in any part of New York.”
A similar federal-level advisory panel examining fracking came under fire recently when 28 top scientists challenged President Obama. His panel, they charged, “appears to be performing advocacy-based science” because its chairman profits from fossil fuel exploitation. Gas industry representatives and academics who are publicly avowed fracking advocates figured prominently on the federal panel.
Clare Donohue of Sane Energy Project expressed the question being asked by thousands of New Yorkers: “Governor Cuomo, we demand an explanation of why you have given the people on the ground, in thousands of communities where fracking is proposed—we whose lives would be forever altered—no seats on your advisory panel?”
Thank you for the opportunity to speak before the court. When I first met Mr. Manross, the sentencing officer who prepared the pre-sentence report, he explained that it was essentially his job to “get to know me.” He said he had to get to know who I really was and why I did what I did in order to decide what kind of sentence was appropriate. I was struck by the fact that he was the first person in this courthouse to call me by my first name, or even really look me in the eye. I appreciate this opportunity to speak openly to you for the first time. I’m not here asking for your mercy, but I am here asking that you know me.
Mr. Huber has leveled a lot of character attacks at me, many of which are contrary to Mr. Manross’s report. While reading Mr Huber’s critiques of my character and my integrity, as well as his assumptions about my motivations, I was reminded that Mr Huber and I have never had a conversation. Over the two and half years of this prosecution, he has never asked me any of the questions that he makes assumptions about in the government’s report. Apparently, Mr. Huber has never considered it his job to get to know me, and yet he is quite willing to disregard the opinions of the one person who does see that as his job.
There are alternating characterizations that Mr Huber would like you to believe about me. In one paragraph, the government claims I “played out the parts of accuser, jury, and judge as he determined the fate of the oil and gas lease auction and its intended participants that day.” In the very next paragraph, they claim, “It was not the defendant’s crimes that effected such a change.” Mr Huber would lead you to believe that I’m either a dangerous criminal who holds the oil and gas industry in the palm of my hand, or I’m just an incompetent child who didn’t affect the outcome of anything. As evidenced by the continued back and forth of contradictory arguments in the government’s memorandum, they’re not quite sure which of those extreme caricatures I am, but they are certain that I am nothing in between. Rather than the job of getting to know me, it seems Mr Huber prefers the job of fitting me into whatever extreme characterization is most politically expedient at the moment.
In nearly every paragraph, the government’s memorandum uses the words lie, lied, lying, liar. It makes me want to thank whatever clerk edited out the words “pants on fire.” Their report doesn’t mention the fact that at the auction in question, the first person who asked me what I was doing there was Agent Dan Love. And I told him very clearly that I was there to stand in the way of an illegitimate auction that threatened my future. I proceeded to answer all of his questions openly and honestly, and have done so to this day when speaking about that auction in any forum, including this courtroom. The entire basis for the false statements charge that I was convicted of was the fact that I wrote my real name and address on a form that included the words “bona fide bidder.” When I sat there on the witness stand, Mr Romney asked me if I ever had any intention of being a bona fide bidder. I responded by asking Mr Romney to clarify what “bona fide bidder” meant in this context. Mr Romney then withdrew the question and moved on to the next subject. On that right there is the entire basis for the government’s repeated attacks on my integrity. Ambition should be made of sterner stuff, your honor.
Mr Huber also makes grand assumptions about my level of respect for the rule of law. The government claims a long prison sentence is necessary to counteract the political statements I’ve made and promote a respect for the law. The only evidence provided for my lack of respect for the law is political statements that I’ve made in public forums. Again, the government doesn’t mention my actions in regard to the drastic restrictions that were put upon my defense in this courtroom. My political disagreements with the court about the proper role of a jury in the legal system are probably well known. I’ve given several public speeches and interviews about how the jury system was established and how it has evolved to its current state. Outside of this courtroom, I’ve made my views clear that I agree with the founding fathers that juries should be the conscience of the community and a defense against legislative tyranny. I even went so far as to organize a book study group that read about the history of jury nullification. Some of the participants in that book group later began passing out leaflets to the public about jury rights, as is their right. Mr Huber was apparently so outraged by this that he made the slanderous accusations that I tried to taint the jury. He didn’t specify the extra number of months that I should spend in prison for the heinous activity of holding a book group at the Unitarian Church and quoting Thomas Jefferson in public, but he says you should have “little tolerance for this behavior.”
But here is the important point that Mr Huber would rather ignore. Despite my strong disagreements with the court about the Constitutional basis for the limits on my defense, while I was in this courtroom I respected the authority of the court. Whether I agreed with them or not, I abided by the restrictions that you put on me and my legal team. I never attempted to “taint” the jury, as Mr Huber claimed, by sharing any of the relevant facts about the auction in question that the court had decided were off limits. I didn’t burst out and tell the jury that I successfully raised the down payment and offered it to the BLM. I didn’t let the jury know that the auction was later reversed because it was illegitimate in the first place. To this day I still think I should have had the right to do so, but disagreement with the law should not be confused with disrespect for the law.
My public statements about jury nullification were not the only political statements that Mr Huber thinks I should be punished for. As the government’s memorandum points out, I have also made public statements about the value of civil disobedience in bringing the rule of law closer to our shared sense of justice. In fact, I have openly and explicitly called for nonviolent civil disobedience against mountaintop removal coal mining in my home state of West Virginia. Mountaintop removal is itself an illegal activity, which has always been in violation of the Clean Water Act, and it is an illegal activity that kills people. A West Virginia state investigation found that Massey Energy had been cited with 62,923 violations of the law in the ten years preceding the disaster that killed 29 people last year. The investigation also revealed that Massey paid for almost none of those violations because the company provided millions of dollars worth of campaign contributions that elected most of the appeals court judges in the state. When I was growing up in West Virginia, my mother was one of many who pursued every legal avenue for making the coal industry follow the law. She commented at hearings, wrote petitions and filed lawsuits, and many have continued to do ever since, to no avail. I actually have great respect for the rule of law, because I see what happens when it doesn’t exist, as is the case with the fossil fuel industry. Those crimes committed by Massey Energy led not only to the deaths of their own workers, but to the deaths of countless local residents, such as Joshua McCormick, who died of kidney cancer at age 22 because he was unlucky enough to live downstream from a coal mine. When a corrupted government is no longer willing to uphold the rule of law, I advocate that citizens step up to that responsibility.
This is really the heart of what this case is about. The rule of law is dependent upon a government that is willing to abide by the law. Disrespect for the rule of law begins when the government believes itself and its corporate sponsors to be above the law.
Mr Huber claims that the seriousness of my offense was that I “obstructed lawful government proceedings.” But the auction in question was not a lawful proceeding. I know you’ve heard another case about some of the irregularities for which the auction was overturned. But that case did not involve the BLM’s blatant violation of Secretarial Order 3226, which was a law that went into effect in 2001 and required the BLM to weigh the impacts on climate change for all its major decisions, particularly resource development. A federal judge in Montana ruled last year that the BLM was in constant violation of this law throughout the Bush administration. In all the proceedings and debates about this auction, no apologist for the government or the BLM has ever even tried to claim that the BLM followed this law. In both the December 2008 auction and the creation of the Resource Management Plan on which this auction was based, the BLM did not even attempt to follow this law.
And this law is not a trivial regulation about crossing t’s or dotting i’s to make some government accountant’s job easier. This law was put into effect to mitigate the impacts of catastrophic climate change and defend a livable future on this planet. This law was about protecting the survival of young generations. That’s kind of a big deal. It’s a very big deal to me. If the government is going to refuse to step up to that responsibility to defend a livable future, I believe that creates a moral imperative for me and other citizens. My future, and the future of everyone I care about, is being traded for short term profits. I take that very personally. Until our leaders take seriously their responsibility to pass on a healthy and just world to the next generation, I will continue this fight.
The government has made the claim that there were legal alternatives to standing in the way of this auction. Particularly, I could have filed a written protest against certain parcels. The government does not mention, however, that two months prior to this auction, in October 2008, a Congressional report was released that looked into those protests. The report, by the House committee on public lands, stated that it had become common practice for the BLM to take volunteers from the oil and gas industry to process those permits. The oil industry was paying people specifically to volunteer for the industry that was supposed to be regulating it, and it was to those industry staff that I would have been appealing. Moreover, this auction was just three months after the New York Times reported on a major scandal involving Department of the Interior regulators who were taking bribes of sex and drugs from the oil companies that they were supposed to be regulating. In 2008, this was the condition of the rule of law, for which Mr Huber says I lacked respect. Just as the legal avenues which people in West Virginia have been pursuing for 30 years, the legal avenues in this case were constructed precisely to protect the corporations who control the government.
The reality is not that I lack respect for the law; it’s that I have greater respect for justice. Where there is a conflict between the law and the higher moral code that we all share, my loyalty is to that higher moral code. I know Mr Huber disagrees with me on this. He wrote that “The rule of law is the bedrock of our civilized society, not acts of ‘civil disobedience’ committed in the name of the cause of the day.” That’s an especially ironic statement when he is representing the United States of America, a place where the rule of law was created through acts of civil disobedience. Since those bedrock acts of civil disobedience by our founding fathers, the rule of law in this country has continued to grow closer to our shared higher moral code through the civil disobedience that drew attention to legalized injustice. The authority of the government exists to the degree that the rule of law reflects the higher moral code of the citizens, and throughout American history, it has been civil disobedience that has bound them together.
This philosophical difference is serious enough that Mr Huber thinks I should be imprisoned to discourage the spread of this idea. Much of the government’s memorandum focuses on the political statements that I’ve made in public. But it hasn’t always been this way. When Mr Huber was arguing that my defense should be limited, he addressed my views this way: “The public square is the proper stage for the defendant’s message, not criminal proceedings in federal court.” But now that the jury is gone, Mr. Huber wants to take my message from the public square and make it a central part of these federal court proceedings. I have no problem with that. I’m just as willing to have those views on display as I’ve ever been.
The government’s memorandum states, “As opposed to preventing this particular defendant from committing further crimes, the sentence should be crafted ‘to afford adequate deterrence to criminal conduct’ by others.” Their concern is not the danger that I present, but the danger presented by my ideas and words that might lead others to action. Perhaps Mr Huber is right to be concerned. He represents the United States Government. His job is to protect those currently in power, and by extension, their corporate sponsors. After months of no action after the auction, the way I found out about my indictment was the day before it happened, Pat Shea got a call from an Associated Press reporter who said, “I just wanted to let you know that tomorrow Tim is going to be indicted, and this is what the charges are going to be.” That reporter had gotten that information two weeks earlier from an oil industry lobbyist. Our request for disclosure of what role that lobbyist played in the US Attorney’s office was denied, but we know that she apparently holds sway and that the government feels the need to protect the industry’s interests.
The things that I’ve been publicly saying may indeed be threatening to that power structure. There have been several references to the speech I gave after the conviction, but I’ve only ever seen half of one sentence of that speech quoted. In the government’s report, they actually had to add their own words to that one sentence to make it sound more threatening. But the speech was about empowerment. It was about recognizing our interconnectedness rather than viewing ourselves as isolated individuals. The message of the speech was that when people stand together, they no longer have to be exploited by powerful corporations. Alienation is perhaps the most effective tool of control in America, and every reminder of our real connectedness weakens that tool.
But the sentencing guidelines don’t mention the need to protect corporations or politicians from ideas that threaten their control. The guidelines say “protect the public.” The question is whether the public is helped or harmed by my actions. The easiest way to answer that question is with the direct impacts of my action. As the oil executive stated in his testimony, the parcels I didn’t bid on averaged $12 per acre, but the ones I did bid on averaged $125. Those are the prices paid for public property to the public trust. The industry admits very openly that they were getting those parcels for an order of magnitude less than what they were worth. Not only did those oil companies drive up the prices to $125 during the bidding, they were then given an opportunity to withdraw their bids once my actions were explained. They kept the parcels, presumably because they knew they were still a good deal at $125. The oil companies knew they were getting a steal from the American people, and now they’re crying because they had to pay a little closer to what those parcels were actually worth. The government claims I should be held accountable for the steal the oil companies didn’t get. The government’s report demands $600,000 worth of financial impacts for the amount which the oil industry wasn’t able to steal from the public.
That extra revenue for the public became almost irrelevant, though, once most of those parcels were revoked by Secretary Salazar. Most of the parcels I won were later deemed inappropriate for drilling. In other words, the highest and best value to the public for those particular lands was not for oil and gas drilling. Had the auction gone off without a hitch, it would have been a loss for the public. The fact that the auction was delayed, extra attention was brought to the process, and the parcels were ultimately revoked was a good thing for the public.
More generally, the question of whether civil disobedience is good for the public is a matter of perspective. Civil disobedience is inherently an attempt at change. Those in power, whom Mr Huber represents, are those for whom the status quo is working, so they always see civil disobedience as a bad thing. The decision you are making today, your honor, is what segment of the public you are meant to protect. Mr Huber clearly has cast his lot with that segment who wishes to preserve the status quo. But the majority of the public is exploited by the status quo far more than they are benefited by it. The young are the most obvious group who is exploited and condemned to an ugly future by letting the fossil fuel industry call the shots. There is an overwhelming amount of scientific research, some of which you received as part of our proffer on the necessity defense, that reveals the catastrophic consequences which the young will have to deal with over the coming decades.
But just as real is the exploitation of the communities where fossil fuels are extracted. As a native of West Virginia, I have seen from a young age that the exploitation of fossil fuels has always gone hand in hand with the exploitation of local people. In West Virginia, we’ve been extracting coal longer than anyone else. And after 150 years of making other people rich, West Virginia is almost dead last among the states in per capita income, education rates and life expectancy. And it’s not an anomaly. The areas with the richest fossil fuel resources, whether coal in West Virginia and Kentucky, or oil in Louisiana and Mississippi, are the areas with the lowest standards of living. In part, this is a necessity of the industry. The only way to convince someone to blow up their backyard or poison their water is to make sure they are so desperate that they have no other option. But it is also the nature of the economic model. Since fossil fuels are a limited resources, whoever controls access to that resource in the beginning gets to set all the terms. They set the terms for their workers, for the local communities, and apparently even for the regulatory agencies. A renewable energy economy is a threat to that model. Since no one can control access to the sun or the wind, the wealth is more likely to flow to whoever does the work of harnessing that energy, and therefore to create a more distributed economic system, which leads to a more distributed political system. It threatens the profits of the handful of corporations for whom the current system works, but our question is which segment of the public are you tasked with protecting. I am here today because I have chosen to protect the people locked out of the system over the profits of the corporations running the system. I say this not because I want your mercy, but because I want you to join me.
After this difference of political philosophies, the rest of the sentencing debate has been based on the financial loss from my actions. The government has suggested a variety of numbers loosely associated with my actions, but as of yet has yet to establish any causality between my actions and any of those figures. The most commonly discussed figure is perhaps the most easily debunked. This is the figure of roughly $140,000, which is the amount the BLM originally spent to hold the December 2008 auction. By definition, this number is the amount of money the BLM spent before I ever got involved. The relevant question is what the BLM spent because of my actions, but apparently that question has yet to be asked. The only logic that relates the $140,000 figure to my actions is if I caused the entire auction to be null and void and the BLM had to start from scratch to redo the entire auction. But that of course is not the case. First is the prosecution’s on-again-off-again argument that I didn’t have any impact on the auction being overturned. More importantly, the BLM never did redo the auction because it was decided that many of those parcels should never have been auctioned in the first place. Rather than this arbitrary figure of $140,000, it would have been easy to ask the BLM how much money they spent or will spend on redoing the auction. But the government never asked this question, probably because they knew they wouldn’t like the answer.
The other number suggested in the government’s memorandum is the $166,000 that was the total price of the three parcels I won which were not invalidated. Strangely, the government wants me to pay for these parcels, but has never offered to actually give them to me. When I offered the BLM the money a couple weeks after the auction, they refused to take it. Aside from that history, this figure is still not a valid financial loss from my actions. When we wrote there was no loss from my actions, we actually meant that rather literally. Those three parcels were not evaporated or blasted into space because of my actions, not was the oil underneath them sucked dry by my bid card. They’re still there, and in fact the BLM has already issued public notice of their intent to re-auction those parcels in February of 2012.
The final figure suggested as a financial loss is the $600,000 that the oil company wasn’t able to steal from the public. That completely unsubstantiated number is supposedly the extra amount the BLM received because of my actions. This is when things get tricky. The government’s report takes that $600,000 positive for the BLM and adds it to that roughly $300,000 negative for the BLM, and comes up with a $900,000 negative. With math like that, it’s obvious that Mr Huber works for the federal government.
After most of those figures were disputed in the presentence report, the government claimed in their most recent objection that I should be punished according to the intended financial impact that I intended to cause. The government tries to assume my intentions and then claims, “This is consistent with the testimony that Mr. DeChristopher provided at trial, admitting that his intention was to cause financial harm to others with whom he disagreed.” Now I didn’t get to say a whole lot at the trial, so it was pretty easy to look back through the transcripts. The statement claimed by the government never happened. There was nothing even close enough to make their statement a paraphrase or artistic license. This statement in the government’s objection is a complete fiction. Mr Huber’s inability to judge my intent is revealed in this case by the degree to which he underestimates my ambition. The truth is that my intention, then as now, was to expose, embarrass and hold accountable the oil industry to the extent that it cuts into the $100 billion in annual profits that it makes through exploitation. I actually intended for my actions to play a role in the wide variety of actions that steer the country toward a clean energy economy where those $100 billion in oil profits are completely eliminated. When I read Mr Huber’s new logic, I was terrified to consider that my slightly unrealistic intention to have a $100 billion impact will fetch me several consecutive life sentences. Luckily this reasoning is as unrealistic as it is silly.
A more serious look at my intentions is found in Mr Huber’s attempt to find contradictions in my statements. Mr Huber points out that in public I acted proud of my actions and treated it like a success, while in our sentencing memorandum we claimed that my actions led to “no loss.” On the one hand I think it was a success, and yet I claim it there was no loss. Success, but no loss. Mr Huber presents these ideas as mutually contradictory and obvious proof that I was either dishonest or backing down from my convictions. But for success to be contradictory to no loss, there has to be another assumption. One has to assume that my intent was to cause a loss. But the only loss that I intended to cause was the loss of secrecy by which the government gave away public property for private profit. As I actually stated in the trial, my intent was to shine a light on a corrupt process and get the government to take a second look at how this auction was conducted. The success of that intent is not dependent on any loss. I knew that if I was completely off base, and the government took that second look and decided that nothing was wrong with that auction, the cost of my action would be another day’s salary for the auctioneer and some minor costs of re-auctioning the parcels. But if I was right about the irregularities of the auction, I knew that allowing the auction to proceed would mean the permanent loss of lands better suited for other purposes and the permanent loss of a safe climate. The intent was to prevent loss, but again that is a matter of perspective.
Mr Huber wants you to weigh the loss for the corporations that expected to get public property for pennies on the dollar, but I believe the important factor is the loss to the public which I helped prevent. Again, we come back to this philosophical difference. From any perspective, this is a case about the right of citizens to challenge the government. The US Attorney’s office makes clear that their interest is not only to punish me for doing so, but to discourage others from challenging the government, even when the government is acting inappropriately. Their memorandum states, “To be sure, a federal prison term here will deter others from entering a path of criminal behavior.” The certainty of this statement not only ignores the history of political prisoners, it ignores the severity of the present situation. Those who are inspired to follow my actions are those who understand that we are on a path toward catastrophic consequences of climate change. They know their future, and the future of their loved ones, is on the line. And they know were are running out of time to turn things around. The closer we get to that point where it’s too late, the less people have to lose by fighting back. The power of the Justice Department is based on its ability to take things away from people. The more that people feel that they have nothing to lose, the more that power begins to shrivel. The people who are committed to fighting for a livable future will not be discouraged or intimidated by anything that happens here today. And neither will I. I will continue to confront the system that threatens our future. Given the destruction of our democratic institutions that once gave citizens access to power, my future will likely involve civil disobedience. Nothing that happens here today will change that. I don’t mean that in any sort of disrespectful way at all, but you don’t have that authority. You have authority over my life, but not my principles. Those are mine alone.
I’m not saying any of this to ask you for mercy, but to ask you to join me. If you side with Mr Huber and believe that your role is to discourage citizens from holding their government accountable, then you should follow his recommendations and lock me away. I certainly don’t want that. I have no desire to go to prison, and any assertion that I want to be even a temporary martyr is false. I want you to join me in standing up for the right and responsibility of citizens to challenge their government. I want you to join me in valuing this country’s rich history of nonviolent civil disobedience. If you share those values but think my tactics are mistaken, you have the power to redirect them. You can sentence me to a wide range of community service efforts that would point my commitment to a healthy and just world down a different path. You can have me work with troubled teens, as I spent most of my career doing. You can have me help disadvantaged communities or even just pull weeds for the BLM. You can steer that commitment if you agree with it, but you can’t kill it. This is not going away. At this point of unimaginable threats on the horizon, this is what hope looks like. In these times of a morally bankrupt government that has sold out its principles, this is what patriotism looks like. With countless lives on the line, this is what love looks like, and it will only grow. The choice you are making today is what side are you on.
Tags: Tim DeChristopher