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Coal Baron and Major Ken Cuccinelli Campaign Donor Sues Blogger for Defamation, Invasion of Privacy

1:37 pm in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog

Robert Murray, owner of the Ohio-based coal giant, Murray Energy Corporationfiled a defamation lawsuit against a prominent liberal blogger and The Huffington Post.

Filed on September 25 in Belmont County’s Court of Common Pleas, Murray’s complaint accuses Mike Stark, creator of FossilAgenda.com and Stark Reports, and The Huffington Post of defamation and invasion of privacy stemming from Mr. Stark’s September 20 article, “Meet the Extremist Coal Baron Bankrolling Ken Cuccinelli’s Campaign.”

Stark, represented by the American Civil Liberties Union of Ohio and David Halperin, former Executive Director of the Center for American Progress’ Campus Progress (now Generation Progress), pushed back this week, issuing a motion to dismiss charges to the judge-of-record for the case.

Published in the midst of the heated Virginia gubernatorial race between Republican Virginia Attorney General Ken Cuccinelli and Democrat Terry McAuliffe – one of Hillary Clinton’s 2008 presidential campaign chairmen – Stark’s piece struck a nerve with Murray, one of Cuccinelli’s key campaign contributors.

In the piece published on The Huffington Post, Stark points to the $30,000 that Murray Energy has given Cuccinelli, as well as Robert Murray’s campaign work on behalf of 2012 Republican Party presidential nominee Mitt Romney. Stark also covers Murray’s call for the impeachment of President Obama at a recent speaking engagement, along with his firing of 150 workers after Obama’s 2012 victory over Mitt Romney and the prayer he offered the U.S. public after Obama’s 2012 victory.

The rationale behind the defamation suit for Murray boils down to Stark and The HuffPost referring to Murray as an “extremist” and pointing to the firing of the 150 Murray Energy workers as a potential “fulfillment of a promise” after the 2012 presidential election.

“The Defamatory Statements…were published with malice…[and] were understood and interpreted by readers of The Huffington Post to be assertions of fact, not opinion,” says Murray’s complaint. “These false and defamatory statements have severely harmed the reputation of the Murray plaintiffs [and have] caused great mental anguish and emotional distress for Plaintiff Robert E. Murray and his family members.”

Even though defamation charges generally apply exclusively to people with a prominent public profile, like Murray, his attorneys have also doled out false light invasion of privacy charges to Stark and HuffPost, as well, implying Murray is not a public figure at all.

“Murray is neither a public figure not a limited public figure in that he has neither voluntarily sought public or media attention, nor has he achieved such a status by reason of the notoriety of his achievements,” reads the complaint.

Plaintiffs: Lost Profits, Tarnished Reputation

Of the 39 paragraphs in Murray’s defamation charge count, nine of them argue Stark and The Huffington Post have damaged Murray personally and professionally and will end up hurting his company’s profit margins.

“Publication of the Defamatory Statements has caused and will continue to cause Murray and members of [his] family to suffer great mental anguish and emotional distress,” the complaint reads. “Murray Energy’s standing in the business community as a respected corporate citizen has been damaged by the publication of the Defamatory Statements.”

For Murray, it all boils down to the possibility of the loss of cold, hard cash.

“Publication of the Defamatory Statements will cause lenders to be less willing to engage in financing transactions with the Murray Plaintiffs, thereby preventing them from gainging access to capital needed to operate their businesses or making it more difficult and expensive for them to obtain such capital,” reads the complaint. ”Publication of the Defamatory Statements will cause the Murray Plaintiffs to suffer a loss of business opportunities and loss of potential and/or existing customers for their businesses.”

In all, Murray has asked Stark and HuffPost for over $75,000 in damages, plus paying the court fees and costs of Murray’s attorneys.

Murray is represented by Kevin Anderson of Fabian & Clendenin, who sits on the Utah Mining Association’s Executive Committee, as well as by two attorneys from Murray’s in-house counsel and Mark Stemm of Porter Wright Morris & Arthur.

Stark’s Attorneys Issue Motion to Dismiss

On November 1, attorneys representing Mike Stark hit back. (The HuffPost has its own set of attorneys working on its behalf who will respond soon.)

They have requested that the judge of record for the case issue a motion to dismiss the case on its face, and offer space for a date in court to hear out an oral argument between Stark and the Murray Plaintiffs.

Stark’s motion to dismiss was brought to the U.S. District Court for the Southern District of Ohio, Eastern Division, where the case has moved to from the Belmont County Court of Common Pleas. ACLU of Ohio and Halperin open up the motion to dismiss with a bang.

“Stark’s article contains no false statements of fact, nor is it misleading, nor does it place Murray in a false light,” they wrote. “More importantly, for purposes of this Motion to Dismiss, the statements in the article about which Plaintiffs complain are not assertions of fact. Rather, the Complaint takes issue only with opinions offered by Stark in the article.”

The rest of the argument tackles the distinction between a straightforward news piece and the opinion-based nature of blogs published in The Huffington Post.

Citing a litany of cases, Stark’s attorneys point to a simple fact: opinion pieces both in the state of Ohio and as enshrined by the U.S. Supreme Court are essentially legally immune from defamation suits.

“Stark is a persistent, aggressive critic of the coal industry, political conservatives, and others, and an advocate for policy reforms. Thus, the immediate context factor strongly favors viewing Stark’s statements in the article as opinion, not fact,” the attorneys argue in the motion to dismiss. “The Court may take judicial notice that the Huffington Post blog is a well-known forum for people to write opinion articles – the online equivalent of a newspaper editorial page.”

The defense also fends off Murray’s attorneys bringing a defamation suit while at the same time saying he’s not a famous individual.

“[This lacks both] factual support and it is directly contradicted by the Complaint as a whole,” argued the defense. “Murray is the well-known head of one of the country’s largest corporations, and he has, by his own admission, deliberately asserted himself into public controversies about public policy, politics, and elections.”

In order for Murray’s complaint to prevail, he must prove “actual malice” on Stark’s part, the defense argues. They don’t think Murray’s attorneys complaint passes that legal bar and therefore the case should be dismissed out of hand.

“Even if the Complaint were interpreted to allege false statements of fact, this Court should dismiss for the additional reason that Complaint does not allege any facts to support the assertion that Stark acted with actual malice, that is, with knowledge that a statement was false or with reckless disregard for whether a statement was false – the legal threshold for a defamation claim brought by a public figure,” reads the motion to dismiss.

Defamation Lawsuits as SLAPP Lawsuits

This isn’t Murray’s first time bringing a defamation lawsuit against a journalist.

Rather, it’s the continuation of a trend of using suits of this sort as a bludgeon to intimidate journalists from writing stories shedding his actions both as an individual and owner of a major coal corporation in a negative light.

TransCanada – owner of the Keystone XL tar sands export pipeline - has used similar legal tactics, utilizing the Strategic Lawsuit Against Public Participation (SLAPP) in its attempt to halt Tar Sands Blockade activists from committing acts of non-violent civil disobedience in Oklahoma and Texas in its attempt to fend off construction of Keystone XL’s southern half.

“[Murray] likely realizes that a lawsuit like this has the effect of diverting resources that a writer or activist like Mike Stark might otherwise use to expose and question the actions of Murray, Murray Energy, and the coal industry,” explained the defense. “This kind of lawsuit could also deter others from engaging in commentary and criticism about Murray and these issues.”

It’s a classic case of the “chilling effect,” with the defense noting Murray has at least two other defamation lawsuits pending in Cuyahoga County, Ohio, also filing suit in 2012 and eventually settling with prominent Charleston Gazette‎ reporter and author of the “Coal Tattoo” blogKen Ward, Jr.

“To the extent that this lawsuit may have the purpose or the effect of chilling free speech on matters of public concern, it is precisely the kind of situation the courts have sought to address,” the defense wrote in its conclusion.

Under the federal court rules, a response to a motion is due 14 days after the motion is filed, meaning Murray’s attorneys have until November 15 to rebut the defense’s motion to dismiss.

US Court: Transcanada’s Keystone XL Profits More Important than Environment

3:58 am in Uncategorized by Steve Horn

pipeline

The financial needs of the Transcanada outweigh the needs of the environment, says US court

In a major ruling that’s flown under the radar, the U.S. Court of Appeals for the Tenth Circuit – based in Denver, Colorado — decided not to grant the Sierra Club and Clean Energy Future Oklahoma a temporary injunction on the construction of the southern half of Transcanada’s Keystone XL tar sands export pipeline.

The Court’s decision hinged on an “injury” balancing test: Would Transcanada be hurt more financially from receiving an injunction? Had it lost, it would be stuck with one until Sierra Club, et al receive a U.S. District Court decision on the legality of the U.S. Army Corps of Engineers’ decision to grant Transcanada a Nationwide Permit 12 (NWP 12) for construction of what’s now called the Gulf Coast Pipeline in February 2012.

Or would ecosystems suffer even greater and potentially incalculable damage from the 485-mile, 700,000 barrels per day pipeline crossing 2,227 streams?

In a 2-1 decision, the Court sided with Transcanada, and by extension, the U.S. Army Corps of Engineers. The Court ruled, “the threatened environmental injuries were outweighed by the financial harm that the injunction would cause Transcanada.”

Commenting on the case brought by Sierra Club, et al, Judge Jerome A. Holmes and Judge Paul J. Kelly, Jr. — appointees of President George W. Bush and President George H.W. Bush, respectively – shot down the arguments sharply.

Holmes and Kelly ruled that Sierra Club, et al failed to show how the pipeline will have a significant environmental impact despite the fact it’s been deemed a “fuse to the biggest carbon bomb on the planet” by retired NASA climate scientist James Hansen.

Construction of Keystone XL’s southern half — subject of significant grassroots activism by the Tar Sands Blockade and others — is now nearly complete. Tar sands dilbit is slated to begin to flow through it in early 2014.

NWP 12: “New Normal” for Tar Sands Pipeline Approval

After protestors succeeded initially in delaying Keystone XL, Big Oil has chosen a “new normal” stealth approval method: the non-transparent NWP 12.

This avoids the more strenuous National Environmental Protection Act permitting process overseen by the Environmental Protection Agency (EPA), which requires public hearings and public comments for major federal pipeline projects. NEPA compels the EPA to take comments into account in response throughout the Environmental Impact Statement phase, allowing robust public participation in the process.

Sierra Club Staff Attorney Doug Hayes explained in an interview with DeSmogBlog that NWP 12 is for utility projects with up to a half an acre of stream or wetland impacts, and has never been used for tar sands pipelines before Keystone XL’s southern half.

The southern half of the pipeline was approved via Executive Order by President Barack Obama in March 2012, directly after Obama gave a speech in front of a Cushing, OK pipeyard.

“The Corps is abusing the nationwide permit program. Nationwide permits were intended to permit categories of projects with truly minimal impacts, not tar sands oil pipelines crossing several states,” said Hayes.

Utilizing tricky legal loopholes, Transcanada used NWP 12 to push through Keystone XL’s southern half in February 2012, calling each half acre segment of Keystone XL’s southern half a “single and complete project.” The Army Corps of Engineers agreed despite the fact that Transcanada refers to the pipeline at-large as the “Gulf Coast Pipeline project.”

“What the Corps is doing is artificially dividing up these massive pipelines, treating them as thousands of individual projects to avoid environmental review,” Hayes explained. ” In this case, there were 2,227 crossings of federal waterways, so the Corps has treated the Gulf Coast Pipeline as 2,227 ‘single and complete projects,’ each of which qualifies under NWP 12.”

Why, I asked Hayes?

“The Corps artificially treats these massive pipelines as thousands of individual projects so as to qualify under NWP 12 and avoid NEPA compliance.”

NWP 12 has also been utilized by Enbridge for the Flanagan South Pipeline, a 600-mile, 600,000 barrels per day pipeline set to shuttle tar sands crude from Flanagan, IL to Cushing, OK, crossing over 2,000 streams. That pipeline is scheduled to begin operations in mid-2014, demonstrating how NWP 12 is the “new normal” way to fast-track domestic tar sands pipelines.

Dissent: Laws Violated, Economic Harm Transcanada’s Fault

Perhaps the biggest irony of the Appeals Court decision is that Judges Holmes and Kelly barely grappled with the central issue of the legal challenge to begin with: using NWP 12 rather than going through the NEPA process.

Read the rest of this entry →

Dirty Details: Dents, Faulty Welds Found Along Keystone XL Southern Half in Texas

9:03 am in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog

If an ecologically hazardous accident happens to TransCanada’s Keystone XL (KXL) tar sands pipeline, we can’t say we weren’t forewarned. That’s the latest from a press release and YouTube video recently disseminated by the good government group, Public Citizen.

Public Citizen’s Texas office explained, “Dozens of anomalies, including dents and welds, reportedly have been identified along a 60-mile stretch of the southern segment of the Keystone XL pipeline, north of the Sabine River in Texas.”

A recent report appearing in The Houston Chronicle revealed KXL’s southern half is over 75-percent complete and will be on-line by late-2013. That half of the pipeline brings tar sands – also known as diluted bitumen, or “dilbit” – from Cushing, OK (dubbed the “pipeline cross-roads of the world“) down to Port Arthur, TX, where it ends up exported to the global market.

KXL’s northern half is still in its proposal phase. Its eventual fate sits entirely in the hands of President Barack Obama and his U.S. State Department because it’s a border-crossing pipeline. In March 2012, President Obama issued an Executive Order for expediting building of KXL’s southern half.

Earlier this year, Tar Sands Blockade - a group committed to creative non-violent direct action to stop the building of KXL’s southern half – also detected defective welding in the pipeline, akin go that discovered by Public Citizen. The group did so when one of its activists went inside of the pipeline and discovered light seeping through it.

Despite this new concrete evidence from both Public Citizen and Tar Sands Blockade, the State Dept. recently denied Friends of the Earth-U.S.‘s (FOE) request to have its key Freedom of Information Act request expedited, one which would likely expose Big Oil’s influence over State’s KXL northern half decision. State argued the request doesn’t “meet any of the established criteria” for expedition, though Public Citizen’s latest spate of findings shows otherwise.

Faulty Welding: Dirt’s in the Details, Detail’s in the Dirt

An old adage goes, “the dirt’s always in the details” one digs up. So too with this latest revelation by Public Citizen - both figuratively and literally.

“Some of the new pipeline has been in the ground on some owners’ land for almost six months,” Public Citizen’s news release reads. “Landowners are concerned that this digging is indicative of faulty pipeline along the route that could potentially leak and threaten water supplies, and have requested TransCanada and the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) to provide more information about the work.”

The “dirt” in this situation was excavated not merely through landowner speculation, but straight from TransCanada’s own contractors.

“The anomalies and other problems were reported to landowners along the line…by several TransCanada vendors, including an independent inspector and a right-of-way representative,” Public Citizen further explained, also writing that each “marked section [has] a stake that reads ‘Anomaly.’”

“Anomaly” or More of the Same?

Yet, is any of this really an “anomaly”? Again, the “dirt’s in the details.”

Read the rest of this entry →

Former Clinton and Bush Cabinet Members, Now Oil and Gas Lobbyists, Expect Keystone XL Green Light

12:18 am in Uncategorized by Steve Horn

Cross-Posted from DeSmogBlog

The Tar Sands Blockade of TransCanada Corporation’s “Keystone XL South” continues in Texas, but former members of the Clinton and George W. Bush cabinets believe the northern half will soon be green-lighted by President Barack Obama.

In a Nov. 13 conference call led by the Consumer Energy Alliance (CEA), an oil and gas industry front group, CEA Counsel John Northington said he believes a “Keystone XL North” rubber stamp is in the works by the Obama Administration.

“I think the Keystone will be approved in fairly short order by the administration,” Northington said on the call.

Northington has worn many hats during his long career:

[He] served in the Clinton Administration at the Department of the Interior as Senior Advisor to the Director of the Bureau of Land Management. Mr. Northington also served as Special Assistant to the Assistant Secretary for Land and Minerals Management with energy policy responsibility for the former Minerals Management Service and the Bureau of Land Management. Mr. Northington began his government service at the Department of Energy, where he served as White House Liaison, Chief of Staff for the Office of Fossil Energy and Senior Advisor for Oil and Natural Gas Policy.

After his tenure working for the Clinton Administration, he walked through the revolving door and became a lobbyist, representing many clients over the past decade, including the oil and gas industry. Northington has represented ExxonMobilDevon EnergyCONSOL Energy, and StatoilExxonMobilDevon and Statoil all have a major stake in the tar sands.

Northington was joined on the call by Michael Whatley, CEA’s Executive Vice President. Whatley seved as senior policy advisor for the Bush-Cheney 2000 campaign, Principal Deputy Assistant Secretary of the Department of Energy under George W. Bush and as Chief of Staff of former Sen. Elizabeth Dole (R-NC).

CEA fronts for HBW Resources, a lobbying firm run by David Holt, Andrew Browning and Whatley (hence the “HBW”), with a developed speciality of lobbying on behalf of the tar sands industry.

Whatley, above and beyond working for the Bush Administration, Sen. Dole and CEA, has also lobbied on behalf ofExxonMobil and General Electric (GE). GE, like ExxonMobil, also has a fiscal present and future interest in tar sands production.

Win, Win for Some; Lose, Lose for Most: Tar Sands With Or Without Keystone XL

Though outfits like CEA are working overtime to ensure “Keystone XL North” is built soon, there are other ways to skin the cat and bring tar sands crude to market. The most important one, covered here on DeSmogBlog and in a recent story published by the Calgary Herald, is freight rail.

Warren Buffett, the “Oracle of Obama,” has a major financial stake both in tar sands production, as well as in moving tar sands to market via the Burlington Northern Sante Fe (BNSF) freight trains he owns under the auspices of his holding company, Berkshire Hathaway.

Buffett gave over $60,000 to the Democratic National Committee during the 2012 election cycle, as well as another $70,000 to President-elect Barack Obama, according to Federal Election Commission (FEC) filings.

“Railroads too present environmental issues. Moving crude on trains produces more global warming gases than a pipeline,” explained Bloomberg in January 2012.

BNSF isn’t the only rail company eager to move tar sands crude to market. Southern Pacific also envisions a major market opening for freight rail transport. A recent Calgary Herald story explains,

While Canadian and U.S. railways are scrambling to meet demand, opening small terminals close to production in locations such as the Bakken area of southern Saskatchewan and North Dakota, the Athabasca oilsands have not been part of the rush. Until now….Unlike pipelines, that means no public hearings and no environmental protests.

The verdict is in.

Chock it up to yet another win-win for the oil and gas industry and a lose-lose for all who have to suffer the consequences of the ecological damage in Alberta, as well as the climate change amplified disasters it’s engendering around the world.