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Attorney Joe Heath, defendant Tom Angie, and second chair attorney attorney Sujata Gibson debrief after mistrial. Colleen Boland
[Editor's note: In October 2014, over massive citizen opposition and in spite of serious health and safety concerns raised by independent scientists, the Federal Energy Regulatory Commission gave final approval to Houston-based Crestwood Midstream to expand gas storage in unlined salt caverns along the shores of Seneca Lake in the heart of New York's wine country. The caverns are left over from a century of salt mining. Immediately after the decision, having exhausted all appeals, the grassroots citizen movement, We Are Seneca Lake, began staging protests at gates of the lakeside compressor station. Since then, more than 600 arrests have taken place, many for trespassing. More than half of these cases have not yet been adjudicated. In late 2015, the posted no-trespass signs demarcating Crestwood's property line were relocated after defense attorneys for the protesters revealed that they were, in fact, posted on public property and that protesters and law enforcement officers were both misinformed about where the actual property line was located. The first trials in the 21-month-long campaign began last week. Tom Angie, whose case is detailed below, was the third protester to face trial. A pretrial motion to present a necessity defense was denied by the Town of Reading Judge.]
The trial of a Seneca Lake gas storage protester ended in dramatic fashion in the Town of Reading Court on Tuesday when Justice Raymond Berry declared a mistrial at the urging of the prosecuting attorneys and accepted a motion from defense attorneys to recuse himself from this and future Seneca Lake protest trials. Berry's rulings came after a strange series of declarations that appeared to indicate both prejudice against the defendant and ignorance of the law.
Defendant Tom Angie, 63, of Aurora in Cayuga County, was charged with violation-level trespass stemming from a Dec. 16, 2014 protest near the main gates of the Crestwood Midstream compressor station near Seneca Lake in the Town of Reading.
Angie's trial today—which was to represent the first trial of gas storage protesters in the Town of Reading Court—began at 10 a.m. By 2 p.m., the prosecutor, Schuyler County assistant district attorney John Tunney, who had put on the stand three witnesses, had just rested his case and chief defense attorney Joseph Heath had just entered a motion for dismissal. At this point, Judge Berry abruptly issued a guilty verdict for Angie.
Clearly flummoxed, prosecutor Tunney explained to the judge that his verdict was premature in light of the fact that defendant Angie had not yet presented his defense or called his own witnesses to the stand.
Heath, noting Tunney's attempt to explain criminal procedure protocols to Judge Berry, respectfully moved that the case be transferred to a law-trained judge. Heath noted that the judge's premature ruling of guilt at this stage showed a fundamental lack of knowledge of basic criminal law, most notably, the right to present a defense.
Heath further said that the fact that the prosecution needed to stop the trial in order to lecture the judge on "the simplest trial procedures" was clear proof that his clients were unable to obtain a fair trial in this court.
In spite of the fact that the prosecutor had just warned the judge that his ruling was premature, Justice Berry then reiterated his verdict, saying, "I still find him guilty."
Heath insisted that the trial could only go forward before a law-trained judge, which Berry is not. Heath noted, "The prosecutor is running this trial."
Sujata Gibson, a second defense attorney, stated that if the judge were going to insist on finding guilt before allowing a defense, then the defendants would simply appeal. She then entered a motion that Berry recuse himself from hearing Angie's case. She asked that the recusal be extended to all future cases of gas storage protesters.
In making her motion, Gibson described for the record a pattern of prejudice, unfair treatment and blatant bias and provided examples. Among them: courtroom observer Daniel Pautz, who was neither a party to the trial nor an officer of the court, was allowed use of his cell phone in the courtroom while she herself, an attorney for the defense, along with all other courtroom observers, had been forbidden cell phones.
According to witnesses, the Bailiff's response, when asked why Pautz alone was allowed to have access to his cell phone inside the courtroom was "because he is with Crestwood."
Pautz, whose legal work focuses on defending property owners against lead paint claims, is an attorney for Crestwood. He was merely an observer in court today.
Justice Berry granted Gibson's motion and agreed to recuse himself in this and all future trials involving Seneca Lake gas storage protesters.
He then asked, "Okay, where are we at?"
The prosecution then moved for an official declaration of mistrial. The defense attorneys offered no objection.
Granting the prosecution's motion for a mistrial, Judge Berry adjourned the court.
In a reaction statement outside of the courtroom, defendant Tom Angie said that while he saw the mistrial and recusal as a victory for We Are Seneca Lake, he was nevertheless deeply shaken by the experience.
"To have somebody look me in the face and say that I was guilty before I had a chance to put on my defense … is chilling. I was not really given my day in court."
Angie, who works as a mechanical design engineer, said that his time spent on legal defense comes at a personal financial cost. "I'm a contractor. When I don't work, I don't get paid, so being hauled into court over and over to defend my First Amendment rights of protest is tough. Like every other average American who wants to exercise my rights, I still have to live. And this affects my livelihood. That concerns me."
Chief defense counsel Joe Heath noted that, even prior to the judge's abrupt guilty verdict at the midpoint of the trial, the prosecution had failed to provide evidence that Angie was standing on Crestwood's property and had already conceded that, at the time of his arrest, the no-trespass signs demarcating the line between public and corporate property were incorrectly located. "In 41 years of practicing law, this is one of the worst mistakes I have ever seen in the courtroom."
Defense counsel Sujata Gibson hailed both the mistrial and the recusal. "This is a victory for the defense and for We Are Seneca Lake. I firmly believe Mr. Angie is not guilty. This is not a game. Each individual has the right to a fair trial."
Out of 606 total arrests in the 21-month-old We Are Seneca Lake campaign, 370 cases remain open. The majority of the adjudicated cases have been dismissed in the interests of justice at the prosecution's request or with their approval, many for admitted lack of evidence of guilt.
Last week, in the Town of Dix Court, Seneca Lake defendants Sue Kinchy and Barbara Barry were both found guilty of trespass.
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Early this morning on a hillside above Seneca Lake, actors James Cromwell and John "J.G." Hertzler of Star Trek fame joined 17 area residents in an act of civil disobedience that is part of an ongoing citizen campaign against salt cavern gas storage.
While blockading the main entrance to the Crestwood compressor station, the two actors urged Gov. Cuomo to stand up to the Federal Energy Regulatory Commission (FERC) for green-lighting an expansion of this fracked gas infrastructure project against overwhelming local opposition and for undermining the governor's own stated commitment to a rapid transition to renewable energy.
Photo credit: We Are Seneca Lake
Starting at 6:45 a.m. and continuing until their arrests by Schuyler County deputies shortly before 7:30 a.m., the protesters blocked all traffic from leaving and entering the facility, including two Crestwood tanker trucks. All 19 were transported to the Schuyler County sheriff's department, charged with disorderly conduct, ticketed and released.
“The prettiest place I've ever seen is right here: the Finger Lakes region of New York … Governor Cuomo, we, the people, do not want to see these pristine lakes turned into cheap, contaminated, industrialized storage facilities for Crestwood and Con Ed. Stand with us, Governor!," John Hertzler, 66, who played Klingon General Martok on Star Trek: Deep Space Nine, said.
"Defend your own program for getting New York State off of fossil fuels and transitioned to renewable energy. FERC—the Federal Energy Regulatory Commission—seeks to keep us chained to the energy of the past and, in so doing, threatens our water, our lands, our safety and the very climate of this, our planet. Boldly go with us, Governor Cuomo, into a renewable energy future."
John Hertzler. Photo credit: We Are Seneca Lake
Hertzler lives in the Finger Lakes region with his family in the town of Ulysses where he serves on the town board.
James Cromwell, 76, who played Zefram Cochrane in Star Trek: First Contact and who was nominated for an Academy Award for his role as Farmer Arthur Hoggett in Babe, called on New Yorkers to join the We Are Seneca Lake movement.
"FERC-approved fracked gas infrastructure projects are taking over our entire state—from the crumbly salt caverns of Seneca Lake, where the gas will be stored, to the pipelines and compressor stations that devastate our farmlands, wetlands and maple groves, all the way to the burner tips of the natural gas-fired power plants that are planned for downstate," he said. "With all of New York under attack by the fossil fuel industry and by the rogue agency called FERC, all New Yorkers now need to stand up, stand together and say no."
James Cromwell. Photo credit: We Are Seneca Lake
Referencing the films in which the two have appeared, protesters held banners and signs that read, “We Are Seneca Lake, Babe/And We Will Not Be FERC-ed" and “Trekkies Against Crestwood-Con Ed Boldly Going Toward Renewables."
The total number of arrests in the 20-month-old We Are Seneca Lake civil disobedience campaign now stands at 604.
Crestwood's methane gas storage expansion project was originally approved by FERC in October 2014 in the face of broad public opposition and unresolved questions about geological instabilities, fault lines and possible salinization of Seneca Lake, which serves as a source of drinking water for 100,000 people. In spite of near-unanimous citizen opposition, FERC's last-minute permit extension on May 16 gave Crestwood's Arlington subsidiary another two years to build out its natural gas storage facility.
Salt cavern storage accounts for only seven percent of total underground storage of natural gas in the U.S. but, since 1972, is responsible for 100 percent of the catastrophic accidents that has resulted in loss of life.
Crestwood also seeks to store two other products of fracking in Seneca Lake salt caverns—propane and butane (so-called Liquefied Petroleum Gases, LPG)—for which it is awaiting a decision by Gov. Cuomo's Department of Environmental Conservation.
Watch today's action here:
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Five feet in diameter and swirling with clouds, a blue and green replica of Planet Earth helped a dozen human inhabitants block three trucks this morning at the main entrance of Crestwood Midstream. The Earth Day-themed civil disobedience action was part of an ongoing campaign against proposed gas storage in Seneca Lake's abandoned salt caverns.
Organized by the direct action group, We Are Seneca Lake, the protesters, plus Earth, formed a blockade on the driveway of the Houston-based gas storage and transportation company shortly after sunrise at 6:45 a.m.
The group held banners that read, “Happy Earth Day! Decarbonize Now" and "We All Are on This [Earth] Together. While blockading, they read aloud together from a new report released this week by the World Resources Institute, which documents alarming new scientific findings about the ongoing climate crisis. Among them: 2015 was the warmest year on record, and the first three months of 2016 each far surpassed the warmest average temperature ever recorded for those months.
"Today is the day before Earth Day and the historic signing of the Paris climate treaty—enjoining the U.S., China and 195 other nations of the world in a pledge to reduce greenhouse gas emissions and to keep global warming below the catastrophic 1.5 degree level," Town of Caroline Councilmember Irene Weiser said in a public statement to fellow blockaders.
"I am proud to stand here today, an elected official, joined by activists from across the region—to say that we stand in solidarity with the people of nations across this one precious earth, with a commitment to hold ourselves and our leaders accountable in upholding that essential promise."
Weiser is an active member of Fossil Free Tompkins, working politically across Tompkins County to reduce dependence on fossil fuels and increase renewable energy construction. Their work includes political action against new fossil fuel infrastructure, including the Crestwood storage facility on Seneca Lake.
The protesters this morning were all charged with disorderly conduct and arrested at about 7:30 a.m. by Schuyler County deputies and transported to the Schuyler County Sheriff's department, where they were ticketed and released.
Among the 12 arrested was a member of the We Are Seneca Lake media team, Michael Dineen. At the time of his arrest, Dineen, who was not part of the blockade, was photographing the protest from across Highway 14. Dineen was also charged with disorderly conduct.
Watch the protest here:
The total number of arrests in the 18-month-old civil disobedience campaign now stands at 549.
"We will not stop blocking the gates of Crestwood until the expansion is canceled," said Nathan Lewis of Hector in Schuyler County who was arrested today. "We will not sit idle as our community is threatened. There is more than one way to vote. We vote with our body and soul when we resist the fossil fuel industry."
Crestwood's methane gas storage expansion project was approved by the Federal Energy Regulatory Commission in October 2014 in the face of broad public opposition and unresolved questions about geological instabilities, fault lines, and possible salinization of Seneca Lake, which serves as a source of drinking water for 100,000 people.
Crestwood also seeks to store two other products of fracking in Seneca Lake salt caverns—propane and butane (so-called Liquefied Petroleum Gases, LPG)—for which it is awaiting a decision by Governor Cuomo's Department of Environmental Conservation.
"It's been six years since the BP oil spill in the Gulf of Mexico; six months since the failure of the methane storage in Aliso Canyon; and over six days since TransCanada's 16,800 gallon dilbit leak into South Dakota farmland," said Debb Guard of Schenectady in Schenectady County who was arrested today. "Earth Day is a time to remind people that water, air and land are still at risk of contamination by the oil and gas industry. Earth Day is also a time to embrace renewable energy sources: solar, wind and geothermal."
Here's the full text of Weiser's Earth Day statement:
Today is the day before Earth Day and the historic signing of the Paris climate treaty—enjoining the U.S., China, and 195 other nations of the world in a pledge to reduce greenhouse gas emissions and to keep global warming below the catastrophic 1.5 degree level. I am proud to stand here today, an elected official, joined by activists from across the region—to say that we stand in solidarity with the people of nations across this one precious Earth, with a commitment to hold ourselves and our leaders accountable in upholding that essential promise.
Forty seven years ago a peace activist named John McConnell proposed Earth Day at a UNESCO conference—with a vision to create a special day each year to draw people together in appreciation of their mutual home and to bring a global feeling of community through the realization of our deepening desire for life, freedom, love, and our mutual dependence on each other.
As a peace activist he considered the devastation caused by pollution as acts of violence against the Earth. One can only imagine what he would have thought about today's desperate measures to unearth fossil fuels by blowing off mountain tops, and raping the ground by injecting poisoned waters. What of the violence of slashing trees and leaving huge scars across our landscape to make way for pipelines? And what of the violence of ocean acidification killing countless species, and the warming waters and habitat loss in the arctic? What of the violent storms, massive floods, fires, droughts, and heat waves that have claimed countless lives? And the violence to the workers who are subjected to unsafe conditions to feed this planet's fossil fuel habit, and the cancers, heart and lung disease, low birth weights to those who live in sacrifice zones? What of the violence that is already visiting the poor in under-developed countries, where sea level rise has caused them to relocate, and where droughts and famine underpin massive uprisings and refugee crises?
As part of his Earth Day proclamation McConnell wrote that “Planet Earth is facing a grave crisis which only the people of the earth can resolve, and in our shortsightedness we have failed to make provisions for the poor as well as the rich to inherit the Earth … and our new enlightenment requires that the disinherited be given a just stake in the Earth and its future."
I am not so naïve as to believe that the disinherited will be given that stake. I believe we have to take it—take it back from the purveyors of violence like ExxonMobil who have lied about the harms their industry causes; take it back from Williams and Cabot for their unconstitutional pipeline, take it back from Crestwood who threatens the drinking water for thousands of people, and take it back from the regulators and elected officials who fail to do their jobs of protecting the public and our future.
And so I am proud to stand here today—not in violence—but in peaceful, loving, hopeful protest—to pledge my commitment to preserving this one and only and beautiful and cherished Earth for future generations.
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Yesterday afternoon, in an old vaudeville music hall in downtown Kingston, New York, Bernie Sanders' campaign held a rally "for clean energy and safe climate" to build support for the presidential candidate and mobilize the Hudson Valley, Catskills and Southern Tier to fight climate change in advance of New York's Democratic primary election on April 19.
Sanders himself was not on hand—nor was he part of the billing. Nevertheless, more than 1,000 people packed the damp, chilly hall to standing room only capacity to hear from anti-fracking leaders, as well as organizers from the campaign itself, who instructed the audience members in the art of door-to-door canvassing, signed them up for tours of duty, and, when the rally ended, sent them out into the community to knock on doors, phone bank and turn out the vote.
Spirits were high. Excitement was palpable. Chants and ovations were loud and long. It was a moment when elements of the grassroots anti-fracking movement in New York State joined hands with the larger political groundswell behind the Sanders campaign.
Serving as master of ceremonies, environmental justice organizer Anthony Rogers-Wright set a tone of urgency.
“We must abolish the system of oppression known as climate change ... We are out of time. We have to get radical ... We are talking about keeping our planet alive. Our children are our landlords; we are renting from them."
So good to see @ARdubbs108 on fire at Pro-#BernieSanders Anti-#fracking rally in Kingston NY And @joshfoxfilm And... https://t.co/V7tSwAShTO— Bill McKibben (@Bill McKibben)1460227678.0
Wright pointed out that fracking disproportionately harms people of color, especially in California where 90 percent of fracking wells are located within one mile of communities of color. A come-from-behind win for Bernie in New York, observed Wright, would serve as wind in the sails of Bernie's later primary race in California, as well as bolster anti-fracking efforts there.
Kelleigh McKenzie, a local delegate from the Kingston area who has been organizing for Sanders in the region, said that with Sanders' campaign, “a political movement has arrived in the Hudson Valley" that stands against “the suicide economy," which fracking and other forms of fossil fuel extraction enable.
The recurring themes of the day—the generational and racial inequities of climate change; the lateness of the hour that makes incremental solutions and half-measures ineffectual; the need for bold political leadership; the multiple perils that fracking poses for climate, water and public health—were made by several speakers, including tribal rights attorney and Honor the Earth campaigns director Tara Houska, 350.org founder Bill McKibben (participating via Skype) and anti-fracking activist and filmmaker Josh Fox.
@joshfoxfilm picking that banjo for #BernieSanders in #Kingston #BernNY @BernieSanders @HV_CANY @CANY_NYC https://t.co/exVml72POw— CJ (@CJ)1460229787.0
I also addressed the crowd. Here is a transcript of my remarks:
Hi everybody. My name is Sandra Steingraber and I occupy the anti-fracking wing of the climate justice movement.
I bring you warm greetings from the snowy shores of Seneca Lake where an uprising of brave citizens winemakers, nurses, farmers, teachers, veterans, chefs, moms, dads, granddads and great grandmothers are peaceably standing up to a Houston-based gas company called Crestwood which seeks to turn our beloved lake shore into a massive gas station for the products of fracking.
It's a plan that threatens not only the climate but also a source of drinking water for 100,000 people. That contested lakeshore is our Greensboro lunch counter.
But I left the shores of Seneca Lake to join you on the banks of the mighty Hudson, not as a partisan of that struggle, nor as a co-founder of New Yorkers Against Fracking—which is how you may know me. Today, I am casting off those hats and speaking to you out of two even more fundamental identities—as a biologist and as a mother.
Biology and motherhood are deeply entwined for me. My own mother was also a biologist and, because I was her adopted daughter, she helped me to see that the whole living world—all flora and fauna contained therein—was my family tree.
Thus, my first memory is cracking open fossils with my mom on the front stoop of our home. That project gave me a sense of ancestry. By age six, I had straightened out all of my little friends on the question of where babies came from. By nine, I had my own microscope. With these gifts from my mother, came lessons about the interconnectivity of creation.
One of every three bites of food is brought to us by the efforts of insect pollinators. The oxygen in one in every two breaths of air we breathe is brought to us by the ocean's plankton via the miracle of photosynthesis.
In turn, we animals and humans exhale carbon dioxide, which has the ability to trap the sun's heat and so keeps us warm at night, preventing the oceans from freezing over after the sun goes down. It's a perfect balance between plants and animals that allows living organisms to sustain the conditions of life that make more life possible, which is why, as environmental attorney Joseph Guth reminds us, a functioning biosphere is worth everything we have.
Now that I have kids of my own and now that I make my living as a systems ecologist, here's what I can tell you:
By trying to run our economy by shattering the bedrock of our nation to exhume oil and methane via fracking, we are destroying and poisoning the nation's drinking water sources in the aquifers deep below our feet. And because methane is a such a powerful heat-trapping gas that cannot be wholly contained in the piles of rubble left behind, we are also exacerbating climate change in the atmosphere high above our heads—at a time when we urgently need to be coming up to the rescue with renewable energy.
Fracking is not safe and can't be made safe. That's what science shows, and those findings are a direct threat to my own two children, who are 65 percent water by weight. My children's safety depends on safe sources of water. Their future depends on functioning pollinator systems to provide them food and thriving plankton stocks to make oxygen for them to breathe.
Science shows pollinators and plankton stocks are now in trouble. Hence, it's my job as a mother to engage with the biological consequences of climate change precisely because it's my job as a mother to keep my kids from harm and plan for their future.
I can't do my job as a mother in a fractured America.
I can tell you what I saw in a Romanian village where I was invited to give a lecture on the public health impacts of fracking and where my 12 year old son and I were both pepper-sprayed by military police acting as a private security force for a fracking operation run by the U.S. company called Chevron.
An old woman said to me, “We waited 50 years for Americans to show up here, and you brought Chevron." It was she who explained to me the foreign policy objectives for opening eastern Europe to U.S. fracking operations.
I can tell you what I saw at the climate treaty negotiations in Paris last December. Renewable energy CEOs, and their would-be financiers, urged political leaders to give them a clear, strong signal that indicates the energy revolution has begun. At the same time, the world's climate scientists warned those same political leaders that we're out of time and that signal must come now.
As a biologist, I am looking for a presidential candidate who can be realistic about this science, which says that we cannot frack our way to climate stability.
As a mother, I am looking for a Presidential candidate who can recognize an emergency when they see one, who knows, as the poet Audre Lorde reminds us that “the master's tools will never dismantle the master's house."
As a citizen, I am looking for a presidential candidate who knows a government tasked with ensuring security and domestic tranquility, cannot do so when seawater is sloshing through New York's subway tunnels or when vineyards of wine grapes—the economic goose that lays the golden egg in my part of New York—have to compete with flare stacks compressor stations and pipelines. Or when we keep the lights on by shoveling fossil fuels into ovens and lighting them on fire and so threaten to tear up what Abraham Lincoln called our nation's “salubrity of climate" that makes agriculture possible.
In 1979, my mother and I became became co-cancer patients together. Her advice to me was, “Don't let them bury you before you are dead." She was dealt a very tough prognosis at age 46, and yet she went on to defy all prediction, outlived three oncologists, and is now 85 years old.
So, I offer my own mother's advice to the Sanders' campaign and to all of you.
We are not here to simply express our hope for a strong, clear signal on renewable energy from the executive office. We are here to make it so and change providence itself. That's the spirit that allowed New Yorkers, against all prediction, to evict the frackers from our state and ban fracking now and forevermore.
Against all prediction, fellow New Yorkers, let's help elect the nation's first keep-it-in-the-ground president, willing to defend our bedrock, our water and our climate from those who would thrown our own children under the bus to line their fossilized pockets.
Let's make it so.
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The civil disobedience movement of which I'm a part, We Are Seneca Lake, opposes the transformation of a beautiful upstate New York lakeshore into a giant storage depot for natural gas from out-of-state fracking operations.
To that end, whenever possible, we like to lend a hand to those who are also fighting out-of-state fracking operations, including pipelines.
So on Friday, six Seneca Lake defenders drove across the border to stand with our brothers and sisters in Susquehanna County, Pennsylvania who oppose the seizure, via eminent domain, of the Holleran-Zeffer maple grove and its transformation into a 120-foot-wide right-of-way for the proposed 128-mile-long Constitution Pipeline.
This pilgrimage is one that many others have made before us ever since Jan. 29 when the Federal Energy Regulatory Commission (FERC) issued a partial Notice to Proceed with tree-cutting along the Pennsylvania portion of the pipeline, which will carry natural gas from the fracking fields of northeastern Pennsylvania into Schoharie County, New York—and, from there, throughout New England, Canada and possibly to overseas markets.
After visiting the maple grove, we attended the court hearing where Judge Malachy Mannion of the U.S. District Court in Scranton was ruling on whether the five defendants were guilty of contempt of court for obstructing tree cutting on their property and whether his previous order allowing the tree-cutting to make way for a shale gas pipeline could be challenged in court.
Accompanying us on yesterday's road trip was our beloved videographer, Bob Nilsson.
Nilsson had a particularly dramatic day. First, en route to the maple farm, while filming a chainsaw-wielding group of tree cutters on a nearby property, he was charged by one of them and nearly punched out.
Then, later that afternoon, while Nilsson was seated in the back of the courtroom in Scranton, a witness under oath wrongly fingered him as “Jeff," an individual who was alleged to have participated in obstructing a tree-cutting crew in the Holleran-Zeffer maple grove on Feb. 10.
The witness—retired state trooper Monty Morgan who now works security for the pipeline company—claimed that he recognized the gray sweatshirt and goatee.
From up on his bench, Judge Mannion sized up our videographer's clothing and facial hair.
“Is your name Jeff? What is your name, sir?"
“My name is Bob Nilsson."
But that single case of mistaken identity may ultimately have helped to play a role in the final verdict of that hearing. The lawyer who argued the case for the defense, Mike Ewall of Energy Justice Network, went on to demonstrate that Morgan could identify none of the defendants among those who were said to have prevented workers from cutting trees in recent weeks. (Energy Justice Network is the only staffed organization in northeast Pennsylvania supporting landowners facing eminent domain).
Ruling that the lawyers for pipeline company, Oklahoma-based Williams Partners, had inadequate proof of identity, the judge dismissed the contempt of court citation against the five defendants. The five had stood accused of flaunting the judge's previous order to allow the tree cutting—which itself upheld the decision of FERC when it denied a stay on cutting the family's maple trees earlier this month. The pipeline right-of-way requires the destruction of 200 maples on this farm alone—roughly 80 percent of the family's sugaring trees.
“We consider this a victory because the judge found insufficient proof of contempt," Ewall told me after the hearing ended. “Constitution Pipeline Company is threatening this family's livelihood for a pipeline that may never be built. They still don't have FERC's permission to construct, yet they bully and intimidate landowners while offering paltry compensation for taking their land."
Megan Holleran, 29, a family spokeswoman, agreed: “This is the best outcome that we could have hoped for." She seemed visibly relieved at the ruling, noting that her mother was one of the defendants. “We still have hope that the Constitution pipeline company will wait to cut trees until they have construction permission. We will continue to ask for that."
But, for those who support maple sap lines over gas pipelines, the Holleran family's triumph over the contempt charge was the only good news of the day—and could prove a Pyrrhic victory in the end.
The maple trees themselves were put on the literal chopping block.
Judge Mannion reaffirmed his earlier decision to grant eminent domain status to the pipeline company and made clear in his ruling that, from here on out, he will direct U.S. marshals to “arrest and detain people interfering with tree cutting" and that “violations of this order may result in other penalties," including the costs of additional security and the costs to the pipeline company for delays.
Further, he warned the landowners that they have “an affirmative duty" to remove people from their land who intend to obstruct the tree cutting—or they themselves will be compelled to pay such costs.
In other words, the property owners cannot stop their trees from falling and have no right to tell the FERC-approved tree cutters to get off their land even if ...
- those trees are the basis of the family business.
- the owners do not consent to the seizing of their property by eminent domain to serve the needs of a pipeline company hellbent on fossil fuel expansion.
- the sap is already running in the sap-gathering lines, and even if the maple sugar season is heartbreakingly early this year and the emergency of fossil-fuel induced climate change hangs over us all, and any hope of survival depends on many more trees pulling carbon dioxide out of the atmosphere and much less natural gas heading to burner tips.
As the federal judge in a federal courthouse made clear yesterday, with me and an ill-treated videographer bearing witness, the rule of law dictates that the trees must fall.
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In his famous Letter from a Birmingham Jail, the Reverend Martin Luther King, Jr., wrote, "Injustice anywhere is a threat to justice everywhere."
In that spirit, and as part of the ongoing civil disobedience campaign against gas storage called We Are Seneca Lake—of which I am part—seven protesters from six different New York counties declared their support for the residents of Porter Ranch, California, where a massive leak from an underground gas storage facility has sickened and displaced thousands of families and shows no sign of abating.
Seneca Lake civil disobedients on Martin Luther King, Jr. Day express their solidarity with Porter Ranch residents while blocking traffic at the entrance of Crestwood's gas storage facility in upstate New York. The wind chill was subzero. Photo credit: Colleen Boland.
The seven formed a human chain across the north entrance of Crestwood Midstream on Route 14 at8:45 a.m. Monday morning. While blocking all traffic entering and leaving the facility, the group offered a statement of solidarity with the people of Porter Ranch before their arrest by Schuyler County deputies at 9:15 a.m.
The blockaders held banners that said, “Seneca Lake to Porter Ranch: Shut It All Down" and “Gas Storage Courts Disaster."
All those arrested were transported to the Schuyler County Sheriff's department, charged with disorderly conduct, and released. The total number of arrests in the sixteen-month-old civil disobedience campaign now stands at 467.
The uncontrolled gas leak at the Aliso Canyon gas storage facility—the single largest in the U.S.—was discovered on Oct. 23, 2015. California Gov. Brown declared a state of emergency on Jan. 6. Thus far, more than 2,500 families have fled their homes and more than 1,000 children have been relocated to other schools. Health officials now acknowledge they initially underestimated the scope of the gas leak and the possible attendant health risks. Self-reported health complaints include nausea, dizziness, vomiting, shortness of breath and headaches.
As We Are Seneca Lake protesters noted in their declaration of support, the massive gas leak at Porter Ranch is a problem with no end in sight and no obvious solution: “People of Porter Ranch, we know your lives were upended because no one replaced a safety valve at the bottom of the well. We don't believe we have bottom safety valves here either ... What affects you directly today could affect us directly tomorrow."
Elizabeth Peet, 48, of the Town of Hector in Schuyler County, said, “Today as we celebrate the birthday of Dr. Martin Luther King, Jr., I am reminded that my civic responsibility includes civil disobedience while my elected officials continue to fail to protect our lake and surrounding communities from dangerous gas storage expansion."
Michael Black, 63, of Lakemont in Yates County, said, “I was born in Schuyler County and have lived on the shores of Seneca Lake for nearly a half century. I now live seven miles from Crestwood. What happens here happens to me as well. If the gas storage facility here were to leak—as is happening in southern California—I could be in danger. If it explodes I would likely be killed."
The We Are Seneca Lake movement opposes Crestwood's plans for methane and LPG storage in lakeside salt caverns and has been ongoing since October 2014.
Crestwood's methane gas storage expansion project was approved by the Federal Energy Regulatory Commission in October 2014 in the face of broad public opposition and unresolved questions about geological instabilities, fault lines, and possible salinization of Seneca Lake, which serves as a source of drinking water for 100,000 people.
The seven arrested Monday were: Richard Battaglia, 53, Richford, Tioga County; Michael Black, 63, Lakemont, Yates County; Caroline Byrne, 39, Ithaca, Tompkins County; Angela Cannon-Crothers, 50, Naples, Ontario County; Kim Knight, 31, Covert, Seneca County; Stacey McNeill, 45, Ithaca, Tompkins County; and Elizabeth Peet, 48, Hector, Schuyler County.
Below is the full text of the message that I delivered to the people of Porter Ranch on behalf of We Are Seneca Lake. And you can watch my statement via video here:
Seneca Lake Stands with Porter Ranch: Shut It All Down!
In his famous Letter from a Birmingham Jail, Martin Luther King, Jr. declared, “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly."
Today, on the national holiday celebrating the birth of Dr. King, we gather near the shoreline of Seneca Lake in New York State, on a simple driveway to make our own declaration.
This is not just any driveway. It's contested ground. In the last 16 months, there have been 460 arrests on this strip of pavement for civil disobedience in objection to the expansion of underground gas storage in old salt mines on the banks of our beautiful lake. Some of us have gone to jail.
Today, we affirm our network of mutuality with people who live three time zones away in a California community called Porter Ranch.
The wind chill on this hillside is minus one degree, and we are cold. But we know that people of Porter Ranch are suffering magnitudes more. The leak from Aliso Canyon underground gas storage facility near Porter Ranch has been pouring 1,000 tons of climate-killing methane into the air every hour for the past three months. We all share the same atmosphere.
We know it's the biggest gas leak in U.S. history. We know it's an official state of emergency. We know there is no end in sight and there is no clear way to fix it.
We know that the fumes from this single leak have sickened people and dropped birds, dead, from the sky. We know that the risk of a massive fire is so great that planes cannot fly over the site and cellphones and watches are forbidden on the site.
We know that more than 2,500 Porter Ranch families have been forced to evacuate and children have been forced to change schools.
Meanwhile, seven different efforts to plug the faulty well that is the source of the leak, has only further destabilized the situation, expanding a crater around the wellhead that threatens the possibility of a full blow-out. And the attempts by Southern California Gas to drill a relief well will take at least six more weeks—and may not work either. These are hard truths to hear. But we hear them.
And we watched closely last Friday when people gathered in front of the Environmental Protection Agency offices and urged the EPA to entirely shut down the Aliso Canyon gas storage facility, which is not a specially engineered tank but simply a big hole in the ground left over from drilling and extracting oil. The people said, “Shut it all down!"
So, we want you to know that we are listening. And we, who stand right now, right here, on top of decrepit salt caverns that are slated to serve as storage vessels for massive amounts of pressurized gas echo your words back to you. Like your depleted oil field, our salt caverns were never engineered to hold natural gas either.
People of Porter Ranch, we know your lives were upended because no one replaced a safety valve at the bottom of the well. We don't believe we have bottom safety valves here either.
Seneca Lake and Porter Ranch are tied in a single garment of destiny. What affects you directly today could affect us directly tomorrow. We look at the myriad injustices that you are now compelled to endure, and we see our own future.
Martin Luther King urged us to confront injustice and bend the arc of history in another direction. And he gave us some tactics to use in our efforts. One of them is non-violent civil disobedience. That's what we are doing today. We do it to amplify your own message. And we do it in the fervent hope that we can change our story, that there will be no Porter Ranch at Seneca Lake.
We Are Seneca Lake and we join you in saying, “Shut it all down!"
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[Editor's note: Hundreds of climate activists and renewable energy advocates gathered for a State of the Climate rally and march outside of Gov. Cuomo's State of the State address in Albany Wednesday. Here below are the prepared remarks from Sandra Steingraber's speech. Shortly after, from the top of a stairway in the Capitol building, fracking infrastructure opponents unscrolled a 40-foot petition, bearing 1,000 signatures, that urgently calls on the governor to oppose the storage of dangerous, explosive LPG (propane and butane) in abandoned salt caverns under the shores of Seneca Lake. Like methane, propane and butane are the products of fracking. Along with the petition scroll, the group also delivered more than 500 letters to Gov. Cuomo's office.]
Hi, everyone. My name is Sandra Steingraber, and I bring warm greetings from the banks of Seneca Lake in New York's wine country. That's my home.
One year ago, we all came together at Governor Cuomo's 2015 State of the State address as New Yorkers Against Fracking to celebrate our singular, hard-won victory—the bold decision of our governor to leave in the ground, uncombusted, an immense amount of fossil fuel in the form of vaporous methane trapped in our state's bedrock.
Opponents of the proposed Constitution fracked gas pipeline rally outside the Capitol Building in Albany on Wednesday morning, demanding that Gov. Cuomo deny the FERC-approved project a state water permit. Shortly after this photo was taken, news broke that New York Attorney General Eric Schneiderman had objected to the proposed plan by the pipeline developer to immediately begin clearing trees in the pipeline's path—which runs 120+ miles from the Pennsylvania gas fields north to Schoharie County, New York—ahead of receiving all necessary approvals to commence construction. Photo credit: David Walczak
We worked, united, for years, night and day, to win a state-wide ban on fracking, and together, we made history. That methane is staying in the ground.
This year, we return to Albany wearing many different hats that represent many different campaigns. Some of us are fighting to push open the door to renewable energy. Others are fighting to slam shut the door on various fracking infrastructure projects that are menacing our health and safety as well as our climate: the Constitution Pipeline; the Northeast Direct Pipeline; the Algonquin Incremental Market Pipeline; the Cayuga Power Plant; the Greenidge Power Plant; the CPV-Valley Power Plant; the Dominion New Market Project; the Chemung County landfill expansion; and compressor stations by the dozens.
It all matters. It's all important. It's all necessary.
As we disperse from a single statewide fight against fracking to a multitude of local infrastructure fights, our activism diversifies and becomes more community focused. This trend represents a return to our activist roots. During the fracking wars, before the tribes united into a statewide coalition, we were also fighting on many local fronts and in many town halls. It's how we began.
Faith Meckley, 21, of Geneva leads Seneca Lake gas storage opponents to Gov. Cuomo's office. The group delivered more than 500 individual letters from Finger Lakes residents, along with a petition. Photo credit: Jonathan Flanders
In this return to the local, we bring with us three precious things from our statewide fight. First, we bring scientific knowledge. We can now all cite chapter and verse on the global warming potential of natural gas vis-à-vis carbon dioxide over various time frames, for example. And that knowledge emboldens us.
Second, we have newfound political skills that empower us. And third, we have trusted friends from all over the state who encourage us. We know now how to stick together, reinforce each other's work, and generate synergy. Together, we are greater than the sum of our parts.
But most critically, no matter how widely distributed our individual battles are, we still share a common goal. We want an end to New York's ruinous dependency on fracked gas, along with all of the hateful, harmful infrastructure that comes with it.
We seek to replace every burner tip—from power plants to basement furnaces—with energy systems that look up—to the sun and the wind—instead of down at the graveyards of Devonian fossils.
Governor Cuomo, we want you to tell the world that New York is so done with keeping the lights on by building more crematoria for the burning of more prehistoric plants and animals, whose extraction from the ground and transportation to the flame destroys our climate, our water and our health.
An end to fossil fuels is our united goal.
And it's a goal shared by people all over the world. I met many of them in Paris last month at the U.N. climate talks where climate activists were collectively referred to as “civil society." Its members include indigenous people from South America and the Pacific Islands, grandmothers from Ireland, the knitting nanas of Australia. All together, they pressured negotiators into adopting a strong treaty based on good science.
Nevertheless, the ability to enact it, to “make it so," depends on all of us.
Our vision for New York is that our state should serve as a shining, transformational example to the rest of the world for how to create a vigorous economy with 100 percent renewable energy.
To help make it so, here's what we are doing back home at Seneca Lake. We are engaged in a David and Goliath struggle. The Goliath is a Houston-based gas company called Crestwood that wants to store fracked gases in the abandoned salt caverns along the lakeshore. Seneca Lake serves as a source of drinking water for 100,000 people. This lake is so deep that it also operates as a thermostat for the whole region, creating a microclimate ideally suited to the growing of wine grapes.
Actor and activist James Cromwell delivers a denunciation of the proposed CPV natural gas power plant in Orange County New York, as part of a speech at Wednesday's State of the Climate rally outside the Capitol Building in Albany. Photo credit: David Walczak
The David is We Are Seneca Lake, which is made up of local members of civil society—teachers, nurses, winemakers, mothers, grandfathers, farmers, business owners, veterans—who blockade in Goliath's driveway.
If there is no other way, we will stand in the way. Our ongoing blockade has continued for 16 months and resulted in 460 arrests. Six of these arrests happened just this Monday, involving New Yorkers from five different counties.
Always peaceful and respectful, We are Seneca Lake protesters are the girl scouts of civil disobedience, but our resolve is unrelenting. We know that the Federal Energy Regulatory Commission, which approves all these natural gas infrastructure projects, is largely unresponsive to all other forms of citizen opposition.
When there are other ways, We Are Seneca Lake also engages in lawful activism to redress grievance. Crestwood proposes to store in the Seneca salt caverns not just methane but also LPG. That decision rests with Governor Cuomo's Department of Environmental Conservation and has not yet been made.
So, today, together with our partner, Gas Free Seneca, we will be delivering to the Governor's office over 500 letters and a petition with over 1,000 signatures. These represent only the most recent batch of petition and letter deliveries we've made this year.
We'd like to partner with all of you. We know that Seneca Lake sits upstream from the multitude of pipelines and gas plants and compressor stations that you are fighting. If our salt caverns are filled with gas, Seneca Lake will be filling those pipelines.
Hence, we invite you to join us. Join us for a petition and letter delivery to the governor's office. Join us on the shoreline of our beautiful home. We are all Seneca Lake.
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Just south of the Finger Lakes region in New York's Steuben County is a valley where three waterways meet to form a fourth. In the 18th century, this confluence of rivers (the Cohocton, the Tioga, the Canisteo and the Chemung) was marked with a wooden post.
According to the description of one explorer, the post's elaborately carved surfaces featured 28 figures painted in red that depicted captured enemies and 30 headless figures that depicted, well, dead guys.
The Cohocton, one of four rivers that meet in Painted Post, New York. Photo credit: Rachel Treichler
Art with a warning label.
The Village of Painted Post (pop. 1,842) now occupies that legendary spot. And, given the news that broke on the last day of 2015—a small band of citizens defeated the plans of fossil fuel behemoth Shell Oil—it might be time to carve a new post.
In a unanimous New Year's Eve ruling, the Appellate Division, Fourth Department, in Rochester ruled against the Painted Post water withdrawal project. That project, which supported hydraulic fracturing in Pennsylvania, sold up to one million gallons per day of municipal water from the drinking water aquifer that underlies this quartet of rivers to a Shell Oil subsidiary (SWEPI LP) for use in drilling and fracking operations in Tioga County, Pennsylvania.
Represented by Shell attorneys at every stage, the Village of Painted Post had classified the water, which was transported across the border by rail, as “surplus property" in an attempt to avoid an environmental review of impacts. Those sales are now halted via injunction.
In a case brought by People for a Healthy Environment—along with the Coalition to Protect New York, Sierra Club and five local residents—petitioners claimed the combined impacts of the project had not been considered, as is required under New York's State Environmental Quality Review Act (SEQRA). The appellate court ultimately upheld their argument.
Frank Potter, current acting People for a Healthy Environment president, noted that the water-filling station and the water-filled rail cars that rattled through the village late at night had created additional impacts that needed to be considered together with the impact of the water withdrawals. The court agreed.
Co-petitioners John Marvin and Mike Finneran at the water-loading site in Painted Post, New York. Photo credit: Mary Finneran
“We are very pleased that the court acknowledged what is so obvious to us—that the Village did not follow procedures under SEQRA and that the people who live near the railroad tracks have legal standing in the courts," Potter said in a phone interview. “This water grab by Shell threatens our quality of life through multiple pathways, including noise and light pollution [from train traffic], and all of these impacts need to be considered together."
Attorney Rachel Treichler of Hammondsport, along with Buffalo attorney Richard Lippes, represented the petitioners, said she anticipates further involvement in the issue: “This ruling invalidates the current water sale agreement and issues an injunction against any further water sales until an environmental review is done. We assume the village will go back to the drawing board and do a new environmental review in compliance with SEQRA. My clients plan to be deeply involved in that new review process. If so, we will ask the Village to examine the environmental impact of water withdrawal not only on the local aquifer but also where the water is used to frack in Pennsylvania."
Indeed, Treichler almost seemed to relish the teachable moments that ongoing legal battles provide. “This is a great opportunity for us to present the facts to the public about how the Corning aquifer works," she said. "This is a highly stressed aquifer. Withdrawals in one place could potentially impact the quality of drinking water to people in seven municipalities."
This Painted Post water withdrawal case, first filed in 2012, has followed a winding path.
In the beginning, in trial court, the ruling favored the petitioners both on standing and on the merits of the case. But then, on appeal, Shell's lawyers once again challenged the legal standing of the petitioners and, on this technical point, prevailed. They argued that the petitioners were not being harmed in a way that was different from the general public, including petitioner John Marvin, who lived within 500 feet of the rail-loading facility. (Under New York State environmental law—but not under federal law—a petitioner must demonstrate special injury in order to have a right, a.k.a. “standing," to bring a case to court).
The appellate court agreed with Shell's attorneys, and the lawsuit was dismissed. The petitioners asked for a rehearing. They were denied. So, they took their case to the New York Court of Appeals—the highest court in the state, which agrees to hear only 7 percent of all cases brought before it.
In a huge break for the plaintiffs, the Court of Appeals agreed. And then it went on to overturn the decision of the appellate court on the issue of whether the special harm requirement for noise effects had been met, arguing that the appellate court had applied an “overly restrictive analysis."
Suddenly, petitioner Marvin had standing once again. That reversal resurrected the case and bounced it back down to the appellate division to make a ruling on the merits. And, on Dec. 31, 2015, this is what it said:
First, the appellate court rejected the notion that the water being sold was “surplus property" not subjected to environmental review according to SEQRA protocols:
“On the merits, we agree with petitioners that the Village's determination that the Water Agreement was a Type II action and not subject to SEQRA review was arbitrary and capricious. First, we reject respondents' contention that the withdrawal and sale of surplus water from a municipal water supply is not an “action" for SEQRA purposes (see 6 NYCRR 617.2 [b] [1]). Second, we conclude that the Water Agreement constitutes either a Type I or an Unlisted action."
Second, it ruled that the review had to consider all the impacts combined:
“[S]egmentation, i.e., the division of environmental review for different sections or stages of a project (see 6 NYCRR 617.2 [ag]), is generally disfavored (see Matter of Forman v Trustees of State Univ. of N.Y., 303 AD2d 1019, 1019). We thus conclude that the court properly determined, on the merits of the first cause of action, that all of respondent Village's resolutions should be annulled and that a consolidated SEQRA review of both agreements was required."
(More details on the case can be found here).
So, what does this court victory mean for the rest of us?
At least three good things. First, here in New York State, it means that the highest court in the land has, in its ruling on standing, loosened the special harm requirement that is its basis. That more liberal framing may make it easier for New Yorkers to file suit in regards to other harmful fracking infrastructure projects.
In the Court of Appeals' own words:
“Standing is not to be denied simply because many people suffer the same injury….To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. ... That result would effectively insulate the Village's actions from any review."
Second, by rejecting the notion that drinking water can be labeled it as “surplus property" and sold off for export, like so many extra snowplows—sans environmental review—the court shines a bright light on the whole issue of water rights.
In the words of Treichler, “This court decision affirms what is, in fact, already the law: that is, you have the right to use water, but you don't own water. Water is not a property right. Water is not a surplus property of the village."
What we do have here in the eastern U.S., said Treichler, are riparian rights, which is a system, based in common law, for sharing water among those who own land along the paths that water flows.
Unlike property rights, riparian rights are correlative. If there is not enough water for everyone—as when water levels fluctuate in times of drought—then everyone has to adjust accordingly. But if one entity claims to own a set amount of water that it is entitled to use in all circumstances, then, in times of drought, there is much less for everyone else—human users and ecosystems both.
“New York law, in my view, does not provide that," said Treichler, who is an authority in water law. “But industrial entities want to interpret it that way. There are various interests at work here."
The basic hydrology of upstate New York shows why claiming outright ownership of groundwater—and then selling it—is so reckless. For all the abundant rain that falls, New York's aquifers are not capacious—the underlying bedrock on the hillsides is too close to the surface and not sufficiently porous to hold much water—and the aquifers we do possess resemble squiggly underground skeins of yarn, not round, deep pools.
In other words, in times of drought, we don't have long-term storage of water in our aquifers and our aquifers are not geographically extensive.
The Corning aquifer that lies beneath Painted Post, is shaped like a spindly X chromosome, with its four branches lying directly beneath the four riverbed valleys. The rain falling on the surrounding hillsides is funneled into it.
In times of plentiful rainfall, the groundwater bubbles up into the rivers. (Indeed, 60 to 70 percent of the flow of New York's surface water originates from upwardly mobile groundwater). But when groundwater is pumped and sold for fracking—removed entirely from the hydrologic cycle—the amount of groundwater discharging into streams is sharply reduced.
Startlingly enough, groundwater pumping can sometimes be intense enough to reverse the direction of flow—as when the water floating along the sunlight surface of a stream is sucked right back down into ground to recharge the aquifer. This backwards movement not only causes streams and rivers to dry up but can also draw chemical contaminants into the aquifer.
This effect has already been observed in the Corning aquifer, which is a drinking water source for multiple municipalities, including the city of Corning, which is just downstream from Painted Post.
So that its residents can drink, wash dishes and take showers, the Village of Painted Post pumps 220,000 to 400,000 gallons of municipal water per day. Under the sale agreement to Shell, it provided up to one million gallons a day for Pennsylvania fracking operations. That's a 2- to 5-fold increase in the rate of groundwater pumping.
“Before climate change," Treichler noted, “New York had steady sources of water [because of predictable rain], but we don't have deep aquifers. Because there is a worldwide shortage of water, and because water can be exported and taken away from the aquifer, New York's aquifers can be easily depleted. Painted Post says, 'we are poor, we need the money, our citizens need help paying taxes.' But they are selling water that belongs to everyone. Rain falls into the whole area; it happens to come to them, and they say that it is theirs to sell."
Treichler points out that bulk water sales are not unique to Painted Post. Other New York municipalities (e.g. the Town of Erwin) are also selling water for out-of-state fracking operations—including to Shell. While the appellate ruling is not retroactive, the case does affirm that, going forward, municipalities must comply with SEQRA for such sales—and that requires an assessment of the cumulative impact of water withdrawals on the aquifer and all existing users.
And the third lesson from the Shell No! victory in Painted Post, New York? Surely, it's the power of unflinching citizen activism.
When the Corning Leader—a small-town daily that is a rare beacon of excellent journalism—first reported on water sales to Shell, a handful of alert citizens began attending village meetings. One was so outraged at what she heard, she decided to become a petitioner and wrote a guest editorial that caught the attention of still others. The League of Women Voters held a forum. A legal team was assembled.
And for years upon years, even when the case was dismissed in appellate court, even when the headlines read “Stop Painted Post Water Sales? It's Not Likely," no one gave up.
Let's carve those scenes on a wooden post and plant it near the place where four rivers meet.
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