The Public Trust Environmental Legal Institute Of Florida
What is the Public Trust?
The primary focus of the Public Trust Environmental Legal Institute of Florida is to uphold this doctrine through the zealous protection of the City of Jacksonville's Preservation Project and other federal and state protected lands and waters.
Commonly known as the "Public Trust," we pursue legal means, including litigation if necessary, to protect and preserve the public lands and waters. Additionally, we support the education of political leaders, government officials and citizens by participating in speaking engagements and writing articles and letters. The Public Trust also promotes the use and enjoyment of land and waters within the public trust.
BREAKING NEWS on our Georgia-Pacific case! A pleading was just filed in our Georgia-Pacific case that could end the case in a victory for the good guys. But first, a little history...
In July, 2012 the Public Trust filed an Amicus Curiae (Latin for Friend of the Court) brief in a case between several environmental non-profit groups and the Trustees of the Internal Improvement Trust Fund. The environmental non-profit groups, including Karen Ahlers, Neil Armingeon, the Environmental Youth Council of St. Augustine, and Florida Clean Water Network, filed suit in the Florida Supreme Court and alleged that the Trustees abdicated their mandatory, fiduciary duty to safeguard the waters of the St. Johns River by failing to make a determination as to whether Georgia-Pacific's private "mixing zones" outside its paper mill were contrary to the public's interest.
Public Trust The Public Trust agreed with the environmental groups, but also asked the Florida Supreme Court to join other state Supreme Courts and give a clear pronouncement of the Public Trust Doctrine, the doctrine that protects our public lands and waters for public uses and interests under our collective benefit. Specifically, we asked the Court to announce that one of the public uses and interests that the Board of Trustees is required to protect is our interest in the environmental protection of these lands and waters.
The case was remanded down to a lower court and has gone through several procedural steps since then. However, on October 21, 2013 the attorney for the environmental groups filed a Motion for Summary Judgment in the case, in essence asking the Court to find that as a matter of law, they should win the case. At the risk of over simplifying the 40-page brief, the environmental groups have laid out a clear argument showing that the public never had a chance to object to the Trustees' decision to approve the Georgia-Pacific project, a clear derivation of law.
The Public Trust wishes "good luck" to the environmental groups spear-heading this case, we'll keep a close eye on further progress.
The Greater Jacksonville Paddling Guide Is Now Available!
Legal Update: A Controversial Firing
Our legal updates are usually about a court's decision that has come down, or a bill before the legislature. This month's legal update is about the executive branch, and an event that might cause unnecessary future legal updates on the local scene.
Vince Seibold has been the Chief of the Environmental Quality Division (EQD) for the City of Jacksonville since March of 2007, and was so until April 11th. The City dismissed Mr. Seibold via a 2011 resignation letter he was required to write in order to formally resign before Mayor Alvin Brown was sworn in. But why?
The long-time environmental advocate was dismissed because he discussed a potential reorganization plan with members of the Environmental Protection Board. The reorganization plan calls for sending Mr. Seibold's agency, the Environmental Quality Division, into the Public Works Division. Mr. Seibold has written that he supports the plan and the Mayor's priorities, but that there were "operational issues to be addressed." But he's not the only one who has expressed questions about the plan.
Terrance Ashanta-Parker is the Neighborhoods Director, and Mr. Seibold's boss, and he wrote in January that moving the EQD to the Public Works Division would "create an operational conflict of interest" and "subject the city to a backlash from the environmental community." So why the dismissal of Mr. Seibold? Because the COJ felt that Mr. Seibold should not have addressed this issue with the Environmental Protection Board via this "unauthorized communication."
But members of the Environmental Protection Board have felt kept out of the loop on this important environmental issue. Board member Michelle Tappouni said that she has "worked very hard to get answers on this and I've gotten none. And now our chief is gone."
And what about Mr. Ahsanta-Parker, was he dismissed for also questioning the reorganization? No. Mr. Ashanta-Barker was questioned by personnel managers, but as reported by Steve Patterson in his 04.11.13 article, "the city's labor relations chief, Tracey Watkins, recommended against disciplining him. Ashanta-Barker 'was generally unaware of the level of efforts by his staff to secure support against the realignment,' Watkins wrote in a memo to Chief Administrative Officer Karen Bowling." And, in Patterson's 04.15.13 article he noted that the City Council was not amused by Seibold's dismissal either.
Mr. Seibold has served our environment and the COJ with loyalty and success. Without his leadership the COJ may face environmental issues that Mr. Seibold was so good at preventing. Keep an eye on our future Legal Updates for the impact his dismissal will have.
The Keystone XL Pipeline, perhaps the most controversial environmental issue facing the nation today, continues to smolder.
To be clear, the Keystone Pipeline already exists, it currently transports crude oil in an underground pipeline in Steele City, Nebraska. What is now being challenged is the proposed addition, the Keystone XL, which would connect the Nebraska pipeline to Canada's tar sands region and run all the way down into Texas along the Gulf Coast. The project has been in limbo for some time and awaits a decision from the President about whether to approve or deny the necessary permits. On March 22nd, the Senate voted on a nonbinding budget resolution 494 which merely encouraged the construction of the pipeline. The vote was 62 to 37 in favor of the pipeline. Florida senator, Bill Nelson was among a short list of Democrats who voted for the amendment. Republican Marco Rubio also voted in favor of the pipeline. The strong support for the legislation has been interpreted to put increasing pressure on President Obama to approve the necessary permits and move forward with construction.
In an effort to spread a fair discussion of the extension, we submit for your review the following "pros" and "cons" of the Keystone XL Pipeline. We encourage you to post your thoughts and comments on our facebook page. Please read on and then join the discussion!
I. The Argument Against Extending the Pipeline
A. The Pipeline Compromises Vital Ecosystems and Water Supplies
The pipeline route is intended to begin in the tar sands mines in Canada and end in American Gulf Coast refineries. The Canadian tar sand mines are located in the Canadian Boreal Forest; home to one-quarter of the earth's remaining intact forest ecosystems. The origin of the pipeline would take up an area the size of the state of Florida. The forests are important because they help to naturally capture carbon and are home to crucial animal species that will be endangered by the destruction of their habitat, like the gray wolf, Sandhill crane, woodland caribou, black bear, and Canada lynx. The pipeline's construction will mean the elimination of forest land and the increased vulnerability of the threatened animals that live there.
The pipeline's trajectory also crosses directly over the Nebraska Sandhills Region Ogallala Aquifer which supplies drinking water for millions of people and is the water source for one-third of American agriculture. The fear is that any type of leak or spill could devastate populations of people and farmers that rely on the purity of aquifers to survive. Since the construction of the original Keystone Pipeline, Fox News, 350.org, and the National Resource Defense Council have reported that there have been over a dozen spills in the first year of its operation in the U.S. section alone. Another proposed trajectory places the pipeline directly over an active seismic zone, which had a major earthquake as recently as 2002.
In the event of a spill the pipeline is supposed to shut down a few minutes after any leak over 1.5% of the pipe's flow is detected. John Stansbury, a civil engineer at the University of Nebraska, worries even just a few minutes between detection and shutdown could cause substantial damage, or that human or computer error could cause the leak to go undetected, not detected or acted on quickly enough. Also, leaks too small to trigger the shutdown mechanism could build up over time and cause serious damage. Stansbury says there is a lack of data to safely evaluate the risks and engineer for those risks. He predicts Keystone XL will see nearly 91 major leaks (a major leak is defined as more than 50 barrels) over a period of 50 years. In addition, the risks associated with the chemicals used to dilute the crude oil are unknown. Unlike conventional crude oil, tar sands crude oil must be mixed with chemicals to help it flow through pipelines. The potentially toxic solvents may make the oil more difficult to clean up in the event of a spill.
TransCanada has assured that in the event of a leak, the diluted oil will float in still or slow moving water, allowing for an easier cleanup. A study commissioned by Enbridge supported that theory. However, Steve Hamilton, an ecology professor from Michigan State University, disagrees. He has spent the past three years cleaning up more than 20,000 barrels of Canadian tar sands oil from an Enbridge pipeline spill in Michigan's Kalamazoo River. Hamilton says the diluted oil has a propensity to sink and a lot of times it causes more harm to the ecosystem to dredge that oil. He says the Canadian tar sands oil is, "very different material and requires special considerations in terms of the environment, human health and accidents." He says the Kalamazoo River really "dodged a bullet" because the spill occurred in a marsh so many of the chemicals evaporated before the oil reached the river and had the spill occurred near a large water body, things could have been a lot worse. On March 29th Exxon Mobil's pipeline burst, dumping 10,000 barrels of tar sands oil in Mayflower, Arkansas which forced the evacuation of 40 families.
B. Canada's Tar Sands Oil is Inherently Emissions Intensive
The Congressional Research Service issued a Report for Congress which examined the carbon footprint of the proposed Keystone XL Pipeline by looking at the life cycle of the oil, which is termed "well to wheel" emissions. A "well to wheel" (WTW) analysis examines the carbon emissions emitted during the entire life cycle of the oil from: development, clearing and construction on the land, equipment emissions, fuel used to run the machinery and equipment, extraction, handling and transportation of the oil crude, refining process, the distribution, and finally the combustion of the product in vehicles and machinery. Combustion accounts for 70%-80% of the WTW emissions, well to tank emissions (extraction phase through the distribution phase) account for 20%-30%, and land use construction accounts for 10%-15% of the WTW emissions.
The Congressional Report concludes that Canadian oil sands crudes are, on average, 14%-20% more Greenhouse Gas (GHG) emission intensive than other leading oil crudes they would displace in U.S. refineries. Specifically, they are 9%-19% more emission intensive than Middle East Sour, 5% to 13% more emission intensive than Mexican Maya, and 2%-18% more emission intensive than various Venezuelan crudes on a well to wheel basis. On a well to tank basis, Canadian oil sands are on average, 72%-111% GHG emissions intensive than transport fuels sold and distributed in the U.S.. This means that although the combustion phase is comparable for all of the oils, the extraction to distribution phase of Canadian oil sands creates significantly greater carbon emissions than alternatives.
The Congressional Report cites two main reasons for oil sands' propensity to be more GHG emission intensive. First, oil sands are heavier than lighter crude oil types and require more energy and resource-intensive activities to extract. Second, oil sands are "compositionally deficient in hydrogen, and have a higher carbon, sulfur, and heavy metal content than lighter crude oil types on average, and thus require more processing to yield consumable fuels by U.S. standards."
C. Extraction Methods are Emissions Intensive
There are two methods of extraction. The first is conventional strip mining but can only be done for oil sand deposits fewer than 75 meters below the surface. Conventional strip mining is only able to reach merely 20% of currently recoverable deposits. However, conventional strip mining will continue to account for 50% of total production until 2030. The second method for extraction is for depths in excess of 75 meters, called in-situ. In-situ methods inject steam into the reservoir, which reduces the viscosity of the oil sands and allows it to flow into collection wells. Steam injection methods require significantly more amounts of energy and are thus, more GHG intensive. 80% of the Canadian tar sands reserves are too deep for conventional strip mining. Eventually the pipeline will have to utilize the in-situ method in lieu of the strip mining method because TransCanada will have mined all the available oil fewer than 75 meters below the surface.
The Sierra Club expects the Keystone XL Pipeline to increase the United States' carbon emissions by the equivalent of seven new coal fired power plants or five and one half million new cars on the road each year. The Report for Congress says that the estimated effect of the Keystone XL on the U.S. GHG footprint will result in an increase of 3 million to 21 million metric tons of GHG annually, or the equivalent of the combustion of fuels in 588,000 to 4,061,000 passenger vehicles, or carbon emissions from combusting fuels to provide energy to 255,000 to 1,796,000 homes for one year. These increased carbon emissions may severely impact the climate by exacerbating the effects of global warming. Mining and refining pollutants cause acid rain, smog and haze and are associated with higher levels of lung disease and cancer.
The construction of the pipeline is a massive infrastructure commitment both in its construction and future maintenance for inspections and repairs; the pipeline is expected to last for at least fifty years. At the end of fifty years, if the pipeline is ever decommissioned it will likely be left in place and expensive environmental precautions will be necessary to prevent corrosion and leaking to ensure safety.
The Sierra Club asserts that the pipeline is unnecessary because the United States has already significantly decreased its oil usage, down nearly two million barrels per day in the last five years. American oil dependency will continue to decrease, as the automobile market continues to meet better fuel efficiency standards and produce more hybrid and electric models to meet their recent rise in popularity.
D. Native American Tribes, Canadian Aboriginals and American Farmers Raise Concerns
There are also Native American tribes who are speaking out against the proposed pipeline trajectory. In addition to the collective fear of resource contamination and pollution, the tribes worry the pipeline may uncover unmarked graves or sacred archeological sites. Some Native Americans and their lawyers are insisting that there are legal obligations under 19th century treaties that affirm the sovereign status of the tribes. In addition and more recently, the National Historic Preservation Act and Native American Graves Protection and Repatriation Act of 1990 offer protection to Native American burial sites and artifacts. However, these statutes and treaties that protect Native American lands and interests are often contradictory and confusing.
TransCanada has met with several Texas and Oklahoma tribe leaders to help relations and fight opposition to the pipeline. TransCanada has even trained members of the Alabama Coushatta tribe from South Texas to monitor construction in case artifacts are uncovered. One of TransCanada's Native American liaisons, Lou Thompson, said that TransCanada has even asked tribes to conduct surveys of their areas and to point out sacred sites so that the pipe can be rerouted to avoid them. However, Thompson maintains that there is no legal obligation to work with the tribes because the pipeline is not passing through any tribal lands. Rather, Thompson says, "the meetings with tribal leaders are simply the polite and neighborly thing to do."
Ten different Canadian and U.S. aboriginal groups have formed an alliance committed to opposing three multibillion dollar pipelines: 1) TransCanada's Keystone XL; 2) Enbridge's Northern Gateway to the Pacific Coast for export to China and; 3) Kinder Morgan Energy Partner LP's project to double the capacity of its Trans Mountain pipeline to Vancouver. The aboriginal groups opposing the pipelines have territories near the tar sands or on the proposed pipeline routes. They complain that the Canadian government is ignoring 18th and 19th century treaties which allowed aboriginals significant input on activity in their territories. To enforce those rights, the aboriginals threaten not only legal action but also physical action. In January, a group of aboriginal demonstrators blockaded roads and rail lines to protest poor living conditions. Due to falling revenues, the Canadian government has said that the projects are a national priority and will help diversify exports away from the U.S. market. Canada's Conservative government has appointed a lawyer to gather aboriginal views on energy development and issue a report to Ottawa.
According to the Sierra Club, TransCanada has admitted that one of their goals is to raise oil prices in twelve Midwest states. U.S. farmers could see expenses rise dramatically, which will be passed on to consumers. In addition, many private landowners are worried that the pipeline's trajectory may make their land subject to easements or eminent domain.
Farmers are concerned about the effect of the pipe on their crops and crop yields. The temperature of the oil within the pipe, especially in summer months, may adversely affect crops and soil conditions due to ambient air and soil temperatures. Increased production volume may contribute to higher temperatures in the pipeline and surrounding soil. According to the State Department's Draft Supplementary Environmental Impact Statement (DSEIS), Appendix S:
Heat from the pipeline typically increases soil temperature 6 inches below the surface between 5° and 8° F above background levels; greater differences occur between January and April, particularly in northern latitudes. Early season temperature differences at northern latitudes are between 10° and 15° F directly over the pipeline compared to background levels. Seasonal differences as a result of pipeline heat are not noticeable in Oklahoma and Texas.
Increased temperatures may result in decreased water availability and decreased crop production. However, the DSEIS report identified potential positive vegetation responses to higher soil temperatures to include accelerated seed emergence and increased crop production.
II. The Argument for Extending the Pipeline
Proponents of the Keystone XL Pipeline primarily argue that its construction will create jobs, reduce reliance on foreign oil, and stimulate the economy by allowing American oil producers greater access to refining markets.
A. The Pipeline will Stimulate the Economy
The pipeline will stimulate the economy by benefitting local businesses because they will provide goods and services to the workers and for the construction of the pipeline itself. (i.e.: lodging, food, pipeline materials, gravel supply, equipment service and maintenance, etc.). The Keystone website estimates that the pipeline will result in $418.1 million dollars in economic benefits and support up to 4,560 new or existing jobs within Nebraska alone. The pipeline is expected to generate $16.5 million in taxes from construction materials and $13 million in property taxes in the pipeline's first year of valuation. The pipeline is expected to cost $5.3 billion dollars and generate 9,000 new jobs in America and 2,200 in Canada. Conversely, 350.org estimates the pipeline construction will provide only 3,900 temporary construction jobs for approximately a year and will create only 35 permanent jobs.
B. The Pipeline is Environmentally Safe
The Keystone XL website (keystone-xl.com) touts its adherence to strict state and federal environmental regulations. It outlines how it has carefully evaluated environmental impacts through the use of experts and has invested money to ensure it has the best technology available to minimize those impacts. The website reports there are unprecedented levels of technology and safety measures to prevent oil leaks or spills into groundwater, but assures that in the event of a leak or spill, critical resources are safe because the leak would be slow and limited to "hundreds of feet at most." In the event of a groundwater contamination, TransCanada promises to provide an alternative source of water to those affected in addition to remediation and cleanup measures. As an example of safety, the website reports that other Nebraska aquifers have remained safe despite the presence of oil wells since the 1940s and despite the presence of pipelines, which have moved petroleum over aquifers in western Nebraska since the 1950s. In addition to strict adherence to relevant state and federal regulations, the website also says the company will conduct a public outreach program to make citizens aware of the presence of the pipeline. They claim the pipeline is safe due to the use of increased puncture resistant steel, visual markers, frequent inspections, regular aerial patrols and emergency procedures.
C. The Pipeline Should Not Affect Farmers' Crops
For farmers worried about the heat of the pipeline affecting crops and soil conditions, the Keystone website reports that the temperature of the pipeline is not expected to exceed 150 degrees Fahrenheit in the heat of summer and TransCanada does not expect adverse effects on crops but will be willing to compensate landowners for any resultant damage. The website features "before" and "after" photos of farmland gutted during construction of the pipeline and the same farmland after "successful reclamation of the land to its original productive condition."
In 1994 President Bill Clinton issued an executive order directing all federal agencies to engage in a government-wide effort and develop strategies to address environmental justice, defined as "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies." In 2011 the Environmental Protection Agency (EPA) updated its environmental justice strategy and issued "Plan EJ 2014," a roadmap to fully integrate the principles of environmental justice throughout the EPA. Plan EJ 2014 also became, under the direction of Administrator Lisa Jackson, the EPA's plan for "expanding the conversation on environmentalism." In February, 2013 the EPA released a progress report on its plan. To see the full text of the progress report, click here.
The stated goals of Plan EJ 2014 include:
-Protect the environment and health in overburdened communities;
-Empower communities to take action to improve their health and environment; and
-Establish partnerships with local, state, tribal, and federal governments and organizations to achieve healthy and sustainable communities.
Since Administrator Jackson's tenure began, the EPA has followed up on Plan EJ 2014 by engaging "overburdened" communities throughout the country in coordination with the White House and other federal agencies. The first-ever White House forum on Environmental Justice was held in December, 2010, at which cabinet secretaries shared their vision for healthier and more sustainable communities with each other and with over 100 community leaders.
The leaders were encouraged to share opinions on federal programs and initiatives intended to promote environmental, health, and economic benefits for these "overburdened" communities. Beyond this forum the EPA and other federal agencies have held at least 17 community dialogue sessions throughout the country.
The EPA has taken these discussions and created many successful programs and initiatives. Just a few of them include:
-EJ LEGAL TOOLS-In December 2011, the EPA published EJ Legal Tools, marking a historic milestone for the Agency and culminating a lengthy effort, lasting nearly two decades, to implement the directive of the Presidential Memorandum accompanying EO 12898 that federal agencies use existing environmental and civil rights statutes to address EJ issues.
-EJSCREEN-In October 2012, the EPA issued EJSCREEN for use internally by Agency managers and staff. EJSCREEN is a screening tool that provides nationally consistent data and methods for screening areas of potential EJ concern that may warrant further consideration, analysis or outreach. It employs 12 environmental indicators plus race and income. The development of EJSCREEN is a major step forward for integrating EJ into the Agency's programs, policies and activities.
-IDENTIFYING PROMISING COMMUNITY-BASED PRACTICES-In 2012, the EPA conducted an agency-wide assessment of best practices and lessons learned from regional implementation of community-based programs. The EPA committed to replicating and expanding use of these promising practices, in order to better reduce environmental risks and promote healthy, sustainable and livable communities.
Clearly the EPA is making great progress under it Plan EJ 2014, and the future looks bright as well. Over the next year the EPA will focus on at least two key areas in furtherance of Plan EJ 2014's goals and milestones: -The EPA will shift its emphasis from developing tools and guidance to deploying and further integrating them throughout the Agency's programs, policies and activities.
-The EPA will place special emphasis on partnerships with local communities, state and local governments, tribal governments and other federal agencies. These partnerships and relationships will represent a continuation of the EPA's efforts to expand the conversation on environmentalism, more effectively expand partnerships, build local capacity, and foster health, environmental and economic benefits in "overburdened" communities.
Here's wishing the best of luck to the EPA!
Dutton Island Preserve
The River Branch Foundation of Jacksonville Beach, Florida is pleased to announce a grant offer to the City of Atlantic Beach to be used for the purchase of an 8.02 acre tract at the entry of Dutton Island Preserve, in continuation of the foundation's mission of assisting in northeast Florida wilderness preservation. The Public Trust Environmental Legal Institute of Jacksonville Beach has agreed to hold the conservation easement on the property, which will be deeded to the City of Atlantic Beach.
In 2009, River Branch partnered with Public Trust Environmental Legal Institute, the City of Atlantic Beach, and the North Florida Land Trust in the purchase for conservation of the Buckman-Pritchard 350 acre tract on the Intracoastal Waterway, now known as the River Branch Preserve. In 2012, an additional grant was given to the City for an 11.84 acre tract in the Dutton Island Preserve, on which Public Trust also holds the conservation easement.
For more than 40 years, the River Branch Foundation has been actively working to improve the quality of life in the northeast Florida area through support of local nonprofit organizations. In recent years, its focus has become environmental support and wilderness land preservation.
For information contact:
Astronomy Docent Presentation
Guest Docent, Yvonne James, President of the Northeast Florida Astronomical Society (NEFAS), will have a wonderful presentation showing dazzling images of the constellation Orion from the Hubble Space Telescope. The great myth of Orion, the hunter, will be told in story form. Weather permitting and following the presentation inside the library, we will look up at Orion in the library parking lot using high-powered telescopes.
Florida's preservation land is being threatened by government and private corporations alike. While some pieces of land are being polluted by pipelines and unregulated emissions, others are being sold off by the State. But now there is a new way to fight for your land.
Florida's Water and Land Legacy campaign is a citizen's initiative to pass a constitutional amendment in 2014. The amendment would mandate allocating 33% of the existing documentary stamp tax revenues to conservation purposes. This would not create or raise taxes, the tax has been in place since the 1920s and is associated with land purchases and sales. If passed, the revenues to conservation purposes would make up less than 1% of Florida's budget.
The need for this amendment has become clearer and clearer over the last few years. Since 2009 the Florida legislature has cut funding for Florida Forever (the successor to Preservation 2000) by 97.5%. Today lands that are already owned by the State are being neglected and/or sold off. The only States that have continued to adequately fund their preservation lands are those that have constitutionally mandated themselves to do so, hence, the 2014 amendment.
In order to get the amendment passed in 2014 it first needs to get on the ballot. To do this the campaign needs to secure an estimated 676,811 signatures by 11/30/13. These signatures cannot all come from one area, but need to be distributed around the State. Once collected the signatures need to be approved by the Florida Board of Elections. And once on the ballot, the measure must receive 60% voter approval in order to pass.
Right now the campaign is focused on getting signatures, and when they get closer they will focus on education. The campaign has set a goal of collecting 300 signatures a week in Duval County. Each signature must come from a registered Florida voter and there are very strict regulations as to the content and form of the petition. Those who volunteer to collect petitions can learn about all the requirements and collect the materials from the campaign. Volunteers themselves do not need to be Florida voters, or even 18 years old.
The Public Trust has offered to serve as a pick-up place for petitions and packets, so if you want to sign the petition, or volunteer to collect petitions, contact Andy Miller. Please put "I Want to Sign the Petition," or "I Want to Help Collect Petitions" in the subject line. Signatures must be collected in person but we will be happy to work with you to set up a time that is mutually convenient. While you're at it, get a few friends together and you can all sign at once!
Let's work together to save Florida's Water, Land and Wildlife!