The long legal battle over the construction of the Dakota Access Pipeline looks like it will continue to drag on after a recent court ruling.

Last week, U.S District Judge James Boasberg ruled that the pipeline, owned and constructed by Energy Transfer Partners, had not undergone an adequate environmental review by the Army Corps of Engineers and that a more thorough environmental review is needed. He wrote:

[The Army] did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.

However, it was a partial victory for the environmentalists and Native American tribes who opposed the pipeline’s construction. Boasberg said that oil could still flow through the pipeline at this time but indicated that he would make a formal ruling on that decision at a later date.

The judge asked lawyers from both sides to submit written arguments to determine whether the pipeline should be shut down while the Army Corps of Engineers makes its evaluation, or if it should continue to transport oil. A lawyer representing the Sioux tribe expects a decision to be made in September.

This is only the most recent development in the long and complicated battle to establish the 1,200-mile pipeline that will transfer crude oil from North Dakota to Illinois. Since the Army Corps of Engineers published a plan to approve the pipeline route in 2015, there has been a wave of protests, legal challenges, and executive orders to determine the project’s status.

In December 2016, the Obama Administration temporarily halted the construction of a controversial segment of the Dakota Access Pipeline, citing the need for a further environmental review. But when Trump took office in January, he signed an executive order calling on the Army to expedite the review process and complete construction as soon as possible.

The Army is still in the process of determining a timeline for the environmental review, but according to the Army Corps of Engineers Lawyer Mathew Marinelli, the Army will have an updated schedule when the first briefs are required by the court on July 17.

The order for a new environmental review in Dakota has created yet another issue for Energy Transfer Partners. The company’s construction of another $4.2 billion natural gas pipeline is under a rare public investigation for pollution in Ohio wetlands and the destruction of a historic home. The company could lose $10 million a week if it fails to finish construction by November 1.

James Levinson

James Levinson is an Editorial intern at Law Street Media and a native of the greater New York City Region. He is currently a rising junior at George Washington University where he is pursuing a B.A in Political Communications and Economics. Contact James at staff@LawStreetMedia.com

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I never thought I would have anything in common with a Kenyan who was born and raised in a small African village, has two master’s degrees from the University of Nairobi in Kenya and University of Pretoria in South Africa, worked on environment and development policy in East Africa, and now is a technical leader working in the elevation and advancement of the links between population and environment. But on June 23 we had something in common–we were both sipping ginger ale and conversing over the intersectionality of women’s empowerment and climate change. 

Hours before, Clive Mutunga was one of a dozen expert panelists present for “At The Eye of the Storm: Women and Climate Change,” an event geared towards fostering conversations about how women are most affected by climate change and the role they play as victims. According to his fellow panelist Jacqueline Patterson, director of the NAACP’s Environmental and Climate Justice Program, “Climate change exposes gender vulnerabilities.”

“Women are resilience personified.” Roger-Mark De Souza opens Wilson Center #EyeOfTheStorm event pic.twitter.com/QAjWDypkfm

— UniversalAccessProj (@UnivAccessProj) June 23, 2016

The experts in attendance consisted of both men and women who held distinguished positions at the Department of Defense, Congress, Project Concern International (PCI), University of Hawaii Law School, Tetra Tech, and Solar Sister. Most of them appeared to be young and in their thirties, yet they had already accumulated impressive resumes consisting of environmental and humanitarian jobs aimed at helping women effected by climate change. Sono Aibe, a senior advisor at Pathfinder International perfectly encapsulated the ideology of the event saying, “There is no justice in climate change. Nature does not choose its victims, we do.”

Elhers: Women aren’t invisible. We just aren’t listening. @NewSecurityBeat #EyeOfTheStorm

— Maria Prebble (@maria_prebble) June 23, 2016

In developing countries, most women must rely on collecting natural resources (water, food, and energy for cooking and heating) to sustain their livelihood and the livelihood of their families. Uncertain rainfall, drought, and deforestation–all common symptoms of climate change–make it harder for women to maintain their livelihood. Compared to men in these poor countries, women are disadvantaged because of their limited access to education, economic assets, and a place at the table to make decisions on how to combat the problem.

At the event, there were three different panels that looked at the different angles in which climate change disproportionally impacts women.

Women in Crises: Conflict, Disasters, and Complex Emergencies

Most of the panelists on this panel had traveled to remote parts of the world, and experienced first-hand how women were at the center of the effects of climate change in some of the poorest areas. They also shared stories of how violence against women during times of environmental crisis are happening right in our backyards. Patterson elaborated on this by sharing a startling stat from Hurricane Katrina–nearly 300 women were raped during and after the lawless days of the storm.

Similar violence happened to women in Sub-Saharan Africa. Kelly Fish, a gender technical advisor for PCI, recounted one story about an African woman she worked with who had to walk for miles to collect firewood in order to cook for her family. Sadly, the same wood that she had walked miles to retrieve, was used as a tool for violence–her husband beat her with it every night.

Walks to collect water from miles away can also be dangerous for women, Fish explained. Women in the area were encouraged to wear female condoms when walking to collect water because the risk of rape was so high.

Our Bodies, Our Planet: Climate, Gender, and Health

With the U.S. Agency for International Development, Mutunga works in areas where contraception isn’t easily accessible, or there is a lot of ignorance surrounding it–many women end up raising eight or nine children in poverty-stricken areas. It’s not unusual for the daughters who grow up in these families to be sold off as child brides, because as he described during this panel, “Marriage means one less mouth to feed in a poverty-stricken family.”

He added that when women have children young, and have lots of them, it decreases their chances of staying in school and in the workforce–perpetuating the cycle of poverty.

Prez @SuzannePAI discussing the importance of #familyplanning in mitigating effects of climate change #eyeofthestorm pic.twitter.com/PV9zaKjRE8

— PAI (@popact) June 23, 2016

Climate Champions: Women Entrepreneurs & Climate Solutions

The stories of women who had been victimized by the effects of climate change were important to the context of the event, however, the point was not to dwell on the tragedies, but to offer solutions.

“It’s important that we be climate victors and not climate victims,” said Sherri Goodman, former deputy under Secretary of Defense, at the event’s final panel.

Neha Misra, Co-Founder and Chief Collaboration Officer of Solar Sister, a company that provides clean energy technology to remote areas of Africa to help empower women, emphasized that the response to fighting climate change “has to include women.”

“I believe in a world where women, girls, and their communities have access to the sustainable energy they need to create a prosperous life,” she added.

Another panelist, Swathi Veeravalli, a research scientist for the Army Corps of Engineers found in her research that sometimes simple solutions can make a big difference. “If you provide access to lighting, just lightbulbs the incidents of rape go down immediately.”

Roger-Mark De Souza, Director of Population, Environmental Security, and Resilience at the Wilson Center went as far as saying, “every problem we have is linked to climate change.”

The debate over whether or not climate change is real is essentially over, but it is just the beginning when it comes to grasping what the consequences are. Jane Harman, Director, President, and CEO of the Wilson Center, said women should be at the forefront of creating climate change policy. Harman stated,

Climate change is coming to all of us, but women are the ones who are disproportionally hurt— we bare the burden of sick relatives and personal issues. Women as parents and sisters and caregivers, we are qualified to make security policy and to sit at any security policy table in the world. Who should be the leaders in the climate change policy debate? I would say women.

Following the three panels there was a Happy Hour for the panelists to mingle with the audience. I showed up to the event that day wearing a t-shirt, blue jeans, and dirty converse. To say I didn’t fit in with all of the expert panelists and well-dressed young professionals there is an understatement. However, I felt almost a little guilty for worrying about what I showed up in after learning about the women all over the world who have much bigger problems that affect their well-being.

That’s how I started my conversation with Mutunga, and he responded in a thick Kenyan accent, “Think how lucky those women would be to worry about what they were wearing.” After an inspiring chat with him and learning what I did at the panels, I left the event feeling grateful and motivated to make sure I do my part in helping women impacted by climate change.

Editor’s Note: This post has been edited to reflect that one of the featured quotes was said by Sono Aibe, a senior advisor at Pathfinder International. 

Inez Nicholson

Inez is an editorial intern at Law Street from Raleigh, NC. She will be a junior at North Carolina State University and is studying political science and communication media. When she’s not in the newsroom, you can find her in the weight room. Contact Inez at INicholson@LawStreetMedia.com.

The post The Victimization of Women From Climate Change appeared first on Law Street.

In Oct. of 2012, the Supreme Court heard oral argument from the Arkansas Game and Fish Commission on whether the federal government should have to pay for inducing floods into the former’s wildlife area for over seven years. This past week on Dec. 3, the Appeals Court for the Federal Circuit, on remand from the Supreme Court, affirmed a figure of over $5.7 million to be paid to the agency, ending a long drawn-out battle.

A river ran through it.

In 1957, the Arkansas Game and Fish Commission, a state wildlife conservation agency, bought 25,000 acres of land downriver from a government dam, hoping to “preserve bottomland habitat and provide waterfowl hunting”. Each year the tide of the Dave Donaldson Black River Wildlife Management Area would rise as the dam, built by the Army Corps of Engineers in the ‘40’s, released water downstream in an attempt to lengthen harvest times for local farmers.

For over 40 years, the seasonal washes never really did any real damage. The water flowed in, and then it flowed out, leaving the surrounding wildlife intact. But everything changed late in 1993 when the Corps adopted a more aggressive release standard. This time, the floods from the dam reached dangerous heights of six feet. The oaks and various hardwoods– “choked” of oxygen from the stagnant water– began to die. And notwithstanding the outcries of Commission representatives, they kept dying over the next seven years while the floods continued.

Payday

AGFC filed a suit against the government in Federal Claims Court, arguing that the flood damage incurred by the Management Area called for monetary reimbursement in accordance with the Fifth Amendment’s Takings Clause. The Takings Clause, as the name would suggest, originally mandated that in cases where the government requisitioned private property, they would have to reimburse the owner with a fair amount. But over the last century, the Takings Clause has been expanded to include cases where any variety of government actions reduce the market value of a property. Given those broad parameters, judges use ad hoc jurisprudence when assessing Takings Claims. This time with the AGFC was no different. The court awarded them $5.7 million for damages, and  $176,428 for restoration. But it was far from over.

Flip. Flop.

In the Court of Appeals for the Federal Circuit, the decision was reversed, and the AGFC, who had not long before been staring at a pretty good sized check, were left shouting “TIMBER!!!” as their hopes for compensation fell down around them. The Court found that the Takings Clause in this case didn’t hold any water… well, in a figurative sense. They reasoned that only in instances when permanent change had been done unto the property could the Takings Clause be invoked. In cases of flooding, whereby property reverts to its previous state after the water rushes out, is not permanent.

But like fellow Arkansan Bill Clinton post-Monica Lewinsky, there was hope yet for the AGFC. The Supreme Court granted cert mid-2012 and overturned the appeals court’s decision, once again awarding the Commission the money. Here, Supreme Court justices wax philosophical on the nature of the Takings Clause:

JUSTICE BREYER:  The problem with a flood is you don’t take all the land.  You send some stuff in. And the stuff is there for a while, and then it comes back, and — it’s called water.  And so I don’t know what to make of the cases like Kimball Laundry where you actually appropriate the property.  I suspect that they are not quite the same. Anything else? I got Dickinson. I’ve got Kimball Laundry.

JUSTICE SCALIA: We have cases about flying overland—

JUSTICE BREYER: Yes, Causby.

JUSTICE SCALIA: — cases about shooting — shooting overland. Right?

MR. GOODHART: Yes, Your Honor. The Causby case —

JUSTICE SCALIA:  That’s not water, but it ain’t taking, either, in the — in the narrow sense that Justice Breyer has talked about.

This latest decision by the Court of Appeals for the Federal Circuit was one prompted by the government, who wanted a retrial for the purposes of fact finding. Specifically, they disputed everything from causation of the floods to the appraisal of the damages. The court saw no error in the findings of the original court and affirmed the aforementioned recompense.

But what does it all mean?

The implications of this case aren’t lost on the Pacific Legal Foundation, whose work in property rights has made them a critical voice of government land-use. “If government commits a taking, including flooding or occupying someone’s land,” writes Brian Hodges in a PLF blog article,”there is an obligation to pay, period.”

Though the matter at hand has been decided, these are still interesting questions. Is the government to pay even when the action they take serves the benefit of a large group of people? Couldn’t that possibly open up room for a stampede of new litigants who, because of government actions, have had reductions in their property values? And even more pressing: if a stampede of federal claims were to happen, wouldn’t the government be loath to do or build anything at all? Bridges… dams… highways… infrastructure projects…But of course to some, that probably wouldn’t be such a bad thing.

[U.S Court of Appeals for the Federal Circuit]

—

Featured image courtesy of [Linda Tanner via Wikipedia]

Jimmy Hoover

Jimmy Hoover is a graduate of the University of Maryland College Park and formerly an intern at Law Street Media. Contact Jimmy at staff@LawStreetMedia.com.

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