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MICHAEL H. SUSSMAN CHRISTOPHER D. WATKINS
JOSHUA H. POVILL HEATHER M. ABISSI
June 1,2016
SUSSMAN 8c WATKINS - Attorneys at Law -
1 RAILROAD .N. . SUITE 3 P.O. BOX 1005
GOSHEN, NEW YORK 10924
(845) 294-3991 Fax: (845) 294-1623
sussman l@frontier!1et.net \ Maryellen Black Albanese, Esq. Orange County District Attorney's Office 40 Matthews Street Goshen, New York 10924
OF COUNSEi. MARY JO WHATELEY
PARALEGAL JONATIIAN R. GOLDMAN
LEGAL ASSISTANT GERI PRESCOTT
Re: People v. Cromwell, Klemm, Malick, Miller, Shaw & Murphy-Smolka
Dear Counsel,
As per the direction made when we last were in court in the Town of Wawayanda,! am identifying expe1t witnesses for our trial in the above-styled matter. Our expe1ts will explicate the medical and environmental threats which made necessary the civil disobedience in which my clients engaged. Those threats are profound and relate not merely to the exacerbation of global warming, but to more localized adverse effects on public health and safety.
1. A. R. Ingraffea, Ph.D., P.E. is the Dwight C. Baum Professor of Engineering Emeritus and Weiss Presidential Teaching Fellow at Cornell University www.cfg.cornell.edu 607-351-0043; Dr. Ingraffea will explain the technology being challenged by the civil disobedience, the inputs which are required for that technology to work and the outputs or releases into the environment occasioned by that technology. He is a world class scientist and you may access his vitae through the link above.
2. Robe1t W. Howa1th is a member of Depa1iment of Ecology and Evolutionary Biology at Cornell University. His CV is attached hereto. He will testify to the environmental effects of the planned CPV power plant, including in his analysis the impacts of the productive processes required to operate such a plant, inclusive of fracking operations, pipelines, compression stations and the plant itself. He will explain the tremendously detrimental impact of these externalities on the environment and various species. His vitae sets fmih his related qualifications and publications.
3. Dr. Sheila-Bushkin-Bedient is a physician specializing in public health, preventive medicine and environmental health. She will testify about the public health hazards posed by the operation of the CPV plant, inclusive of those processes required for its operation. I attach an Affidavit she recently drafted in the A1iicle 78 proceeding. Dr. Bushkin has reviewed the medical literature concerning the impacts ofhydrofracking on human health and she explain the same to the Comt. As you know, the CPV plant will depend on this source of natural gas.
0 145 Main St. - 2"d Floor Ossining, NY 10562 (914) 236-3610 (ph) (914) 236-3608 (fax)
If checked, please respond to one of our offices
D 11 Fowler St. Port Jervis, NY 12771 (845) 294-3991
D 159 Canal St. Ellenville, NY 12428 (845) 294-3991
D 42 South Main St. Liberty, NY 12754 (845) 294-3991
4. Dr. Larys Melnyk Dyrszka is a diplomate of the National Board of Medical Examiners and a Board ce11ified pediatrician. She is also an expe11 on the health effects of the use of racked natural gas on children and will focus her testimony on that literature and its teaching. One of the major motivations for those engaged in this act of civil disobedience was their concern for the children living and to be living in now being constructed multi-family housing within Yi mile from the CPV site. I enclose a copy of Dr. Dyrszka's CV.
In sh011, the action you are prosecuting was motivated by a scientifically suppm1ed set of conclusions which, unfortunately, were not reviewed or studied by CPV. The sponsor of that development did not complete its Final Environmental Impact Study [FEIS] before the local Planning Board gave it conditional approval. To our knowledge, a principal condition of its approval was that it actually complete its FEIS. This never occmTed. And, then, in 2015, when the sponsor proposed an amended site plan, the local planning board cmtailed public comment, even though there had been profound environmental developments since 2009. These included the Governor's ban on fracking in NY because of the potential environmental and health dangers associated with that technology, new studies showing heightened risks of childhood autism through exposure to fracked natural gas and the identification of threatened or endangered species on or proximate to the CPV site. When the public demanded that the local Planning Board cause the applicant for an amended site plan approval to prepare a Supplemental Environmental Impact Statement [SEIS] to review the impact of these developments, it refused to do so. When the plaintiffs sought this relief in court, the applicant pulled back its amended site plan approval and retreated to its former site plan, which it had already abandoned.
As you know, the US Attorney's Office and the NY State Attorney General are both investigating CPV to determine whether it conupted the state approval process for its proposed plant. Perhaps your office should await the outcome of these investigations before prosecuting citizens who earnestly believe it is necessary to stop "progress" .. of the sm1 which will destroy ours and other species. /
Sin~:s<
Mli.h.EL SUSSMAN
Enc/
STATE OF NEW YORK : COUNTY OF ORANGE TOWN OF WA WA YANDA JUSTICE COURT ---------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK
Plaintiffs,
vs.
JAMES CROMWELL, TERRI KLEMM, PRAMILLA MALICK, NAOMI MILLER, MADELINE SHAW, MAUREEN MURPHY-SMOLKA,
Defendants.
----------------------------------------------------------------------)(
TRIAL MEMORANDUM OF LAW
I. INTRODUCTION
Docket Nos. 15120561 16010030 15120476 15120478 15120477 16010031
The charges in this case stem from acts of civil disobedience by six defendants at the site
of the emerging Competitive Power Ventures (CPV) power plant in Wawayanda, New York.
The Defendants have provided notice that they intend to rely upon the necessity defense and
show that the need to mitigate catastrophic climate change and its effects on public health and
the natural environment motivated them. Caused by global warming, climate change has already
radically affected the environment causing rising sea levels, volatile weather patterns and
increased drought. Scientific consensus points to a rapid increase of such phenomena unless
immediate and drastic action is taken to alter our sources and patterns of energy consumption.
The emission of CO2 from the burning of fossil fuels is a major contributor to global warming,
and the vast majority of the world's gas and oil reserves must be left in the ground to avoid
catastrophic temperature increases.
Despite the clarity of the danger, all levels of government have failed to respond
adequately to the climate crisis in the United States. Despite scientific consensus regarding the
severity of the problem, international agreements to cap warming, and persistent lobbying by
activists such as the Defendants, federal, state and local governments have remained beholden to
fossil fuel interests while paying short shrift to the climate crisis. The economic power of oil,
gas, and coal companies, exacerbated by co1Tuption and the evisceration of public participation
in policy making, have blocked governmental action on climate change, leaving no reasonable
legal alternative for individuals seeking to avert its ongoing harms.
After years of futile pursuit of legal remedies due to the corrupt and/or unlawful actions
of state and local government officials, and faced with the decision of whether to sit passively
and watch global warming ravage the planet or to take continued action to address the crisis,
defendants reasonably decided to engage in the long American tradition of civil disobedience in
an eff011 to combat climate change.
Since before the founding of the Republic, individual moral action taken in violation of
the law and in fu1therance of the public good has proven a crucial driver of social progress.
From the Boston Tea Party and woman's suffrage protests to the lunch counter sit-ins,
individuals committing civil disobedience have advanced the nation's interests and provided a
check on the abuse of power.
Through the statutory defense of justification by necessity and the common law defense
of necessity, New York provides protection for defendants, such as those in the instant case, who
have broken the law both for themselves and the greater good. For centuries, necessity has
guided comts in ensuring that the spirit of the law trumps inflexible application of criminal
statutes ignoring the greater context in which the crime was committed. As an essential aspect of
government checks and balances, such a defense provides a way for the judicial branch to weigh
defendants' conduct against profound social and environmental concerns, allowing defendants to
avail themselves of the right to be heard where no other previous methods worked. In this case,
defendants will offer proof on each element of the defense of justification by necessity.
II. FACTUAL BACKGROUND
Since at least 2013, the Defendants have been part of a concerted effort to organize
their community and raise awareness of the construction of the CPV Valley hydro-fracked
natural gas energy generating facility in the Town of Wawayanda, NY. They have fought not
only the proposed technology, but a lack of transparency and disregard for the rule of law by the
applicant and their own planning board. Defendant Pramilla Malick founded Protect Orange
County and has been a long time critic of CPV and of the growing fracked-based infrastructure
in our State. Defendants Malick and Shaw availed themselves of many legal remedies to hold
the Wawayanda Planning Board and CPV accountable to the community and the law, attending
and speaking at public hearings, writing letters, circulating petitions, holding weekly vigils at the
CPV site and meeting with govenunent officials. Their pleas were repeatedly ignored or outright
dismissed. They sought relief in the comis, and these effo1is have been unsuccessful. Finally,
when Article 78 litigation failed in September 2015, the Defendants believed they were faced
with no choice but to commit civil disobedience by attempting to block the road to construction
of the CPV facility.
For their own part, with respect to legal proceedings, CPV and the Town Planning Board
fell short of full compliance with the law multiple times. For example, CPV did not complete its
Final Environmental Impact Study before the local planning board gave it conditional approval.
Likewise, in 2015, when CPV proposed an amended site plan, the local planning board curtailed
public comment, even though there had been profound environmental developments since 2009,
such as the Governor's December 2014 ban on fracking in New York because of potential
environmental and health dangers, new studies showing heightened risks of autism through
exposure to fracked natural gas, and the identification of threatened or endangered species on or
near the CPV site. Defendants were among the members of the public who demanded that the
Town Planning Board required the applicant to submit a Supplemental Environmental Impact
Statement to properly review the impacts of these developments. CPV refused to do so. The
community then sought relief in com1 through A11icle 78 review. In response, CPV withdrew its
amended site plan approval, reverting back to its original site plan.
Since then, the US Attorney's Office and the NY State Attorney General have
investigated and filed charges of corruption against CPV and State Officials in the state approval
process for this proposed plant.
III. LEGAL STANDARD
a. Short Introduction to the Defense of Necessity
The defense of necessity excuses lawbreaking conduct performed in the public
interest. Based on the common sense premise that, in certain circumstances, adherence to the
law is more harmful to society than deliberate and thoughtful action in violation of the law, the
defense allows a defendant to escape criminal punishment upon a showing of the advisability of
their action . The defense is prudential and reflects developed judicial recognition that strict
adherence to the law must sometimes give way to practical and moral considerations. Necessity
doctrine recognizes that "the law ought to promote the achievement of higher values at the
expense of lesser values, and sometimes the greater good for society will be accomplished by
violating the literal language of the criminal law." Wayne R Lafave, Subst. Crim. L. § 10.1 (2d
2003) .
The necessity defense has a long pedigree in Anglo-American jurisprudence. As early as
1550, an English merchant was acquitted by reason of necessity for dumping passengers' cargo
to prevent a ship from capsizing. Reniger v. Fogossa, 75 Eng. Rep. 1 (K.B. 1550).
Since the 1970s, hundreds of individuals representing a variety of causes have been
acquitted by reason of necessity for civil disobedience actions across the country. The use of
"political necessity" defenses reflects not only the fact that such actions often satisfy the
elements of the general necessity defense and its emphasis on the prevention of serious harm
through less hannful lawbreaking (see discussion below passim), but also the impmiant role that
civil disobedience plays in shaping the nation's political progress.
b. The Common Law Defense of Necessity
The common law of necessity is defined somewhat differently in each jurisdiction. The '
United States Supreme Comi has never defined the precise contours of the defense, although in
United States v. Bailey, 444 U.S. 394,410 (1980), it noted that defendants must "reasonably
believe[] that criminal action was necessary to avoid a harm more serious than that sought to be
prevented by the statute defining the offense," and that "if there was a reasonable, legal
alternative to violating the law ... the defense will fail" ( citations omitted). The Ninth Circuit has
adopted the most common, four-element version of the common law defense: "To invoke the
necessity defense ... the defendants colorably must have shown that: (1) they were faced with a
choice of evils and chose the lesser evil; (2) they acted to prevent imminent harm; (3) they
reasonably anticipated a direct causal relationship between their conduct and the harm to be
averted; and ( 4) they had no legal alternatives to violating the law." United States v. Schoon, 971
F. 2d 193, 195 (9111 Cir. 1991).
c. The Statutory Amalgamation of the Defense of Justification by Necessity in New York
The defense of justification by necessity is codified in New York State by Penal Law
Section 35.05(2), which states: "Such conduct is necessary as an emergency measure to avoid an
imminent public or private injury which is about to occur by reason of a situation occasioned or
developed through no fault of the actor, and which is of such gravity that, according to ordinary
standards of intelligence and morality, the desirability and urgency of avoiding such injury
clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute
defining the offense in issue. The necessity and justifiability of such conduct may not rest upon
considerations pertaining only to the morality and advisability of the statute, either in its general
application or with respect to its application to a particular class of cases arising thereunder.
Whenever evidence relating to the defense of justification under this subdivision is offered by the
defendant, the court shall rule as a matter of law whether the claimed facts and circumstances
would, if established, constitute a defense."
Although New York has codified criminal defenses, New York courts have reviewed and
relied on common law necessity precedent from other jurisdictions in deciding upon the
availability of the defense of justification by necessity. See People v. Gray, 150 Misc. 2d 852
(Criminal Court, New York County 1991), People v. Bordowitz, 155 Misc. 2d 128 (Criminal
Comi, New York County 1991), People v. Craig, 78 N.Y.2d 616 (1991).
In People v. Gray, 150 Misc. 2d 852 (Criminal Court, New York County 1991),
involving a bicycle protest against pollution on a New York City bridge, where the Court
acquitted all defendants based on the justification defense, drawing from common law and New
York statutory law, the Court outlined the following elements of the defense of necessity:
"The common elements of the defense found in viliually all common law and statutory definitions include the following : (1) the actor has acted to avoid a grave harm, not of his
own making; (2) there are not adequate legal means to avoid the harm; and (3) the harm sought to be avoided is greater than that committed. A number of jurisdictions, New York among them, have included two additional requirements -- first, the harm must be imminent, and second, the action taken must be reasonably expected to avert the impending danger."
Given the_ statutory amalgamation of necessity and choice of evils defenses, case law
regarding the treatment of common law necessity in New York, and the facts of this case, the
Defendants must prove the following elements of necessity: 1) They faced a choice of two evils
and chose the lesser evil; 2) they acted to prevent an imminent harm; 3) they had a reasonable
belief to that their actions were necessary to avoid or minimize the harm; and 4) they had no
reasonable legal alternative to their action.
i. A Choice of Two Evils
Regarding the choice between the lesser of two evils, "A Judge must decide whether the
actor's values are so antithetical to shared social values as to bar the defense as a matter oflaw."
People v. Gray, 150 Misc. 2d 852 (1991). This is also common element of common law
necessity. The Ninth Circuit requires necessity defendants to show that "they were faced with a
choice of evils and chose the lesser evil." (Schoon, 971 F. 2d at 195.) The United States
Supreme Court has used similar language, writing that a defendant may assert the defense "if he
reasonably believed that the criminal action 'was necessary to avoid a harm more serious than
that sought to be prevented by the statute defining the offense."' United States v. Bailey, 444
U.S. 394 at 410 (1980) (quoting Bailey, 585 F. 2d 1087, 1097-98 (D.C. Cir. 1978)). The analysis
requires a simple balancing: necessity justifies criminal action 'where the social benefits of the
crime outweigh the social costs of failing to commit the crime." Schoon, 971 F.2d at 196.
As a matter of law, this is almost always an easy threshold for a civil disobedience
defendant to meet. Harms such as nuclear war, genocide, and climate change, which
significantly affect millions of people, are clearly more injurious than violations that cause the
temporary obstruction of traffic.
ii. A Threat of Imminent and Grave Harm
A court must decide whether the Defendants had "a well-founded belief in imminent
grave injury," People v. Gray, 150 Misc. 2d 852 (1991) (citations omitted). Likewise, most
common law definitions of common law necessity require that the targeted harm be "imminent."
See, e.g. Bailey, 444 US at 411, Schoon 971 F.2d at 195. The United States Supreme Court has
defined danger as imminent "if it threaten[s] to occur immediately."' Mehrig v. KFCW., Inc., 516
U.S. 479,485 (1996) (quoting Webster's New International Dictionary of English Language
1245 (2d ed. 1934)).
Imminence may also refer to harms that are certain to occur but cannot be precisely
predicted, as is the case with many environmental threats . In Burlington N & Santa Fe Ry. Co.
v. Grant, 505 F.3d 1013, 1020-21 (10111 Cir. 2007), for example, the Tenth Circuit found that a
tar-like by-product of an oil refinery was an imminent hazard even though no one had yet been
harmed by it: "[A]n 'imminent hazard' may be declared at any point in a chain of events which
may ultimately result in harm to the public .. .Imminence, thus, refers to the nature of the threat
rather than identification of the time when the endangerment initially arose" (citations omitted).
iii. Defendants' Reasonable Belief
A necessity defendant must prove thats/he believed "the action taken must be reasonably
expected to avert the impending danger." People v. Gray, 150 Misc. 2d 852 (1991). Some courts
describe this element as the defendant's reasonable anticipation that a causal nexus existed
between his actions and prevention of the harms he is attempting to avert. See e.g., United States
v. Simpson, 460 F.2d 515,518 (9111 Cir. 1972). In State v. Greenwood, 237 P. 3d 1018, 1025 (Ak.
2010), reversing a conviction for drunk driving because a necessity instruction was denied, the
Alaska Supreme Court stressed the low evidentiary bar for proving a reasonable belief regarding
the elements of necessity: "[C]ourts consider the defendant's reasonable beliefs at the time, even
if those beliefs are mistaken, rather than objectively weighing all potential alternatives. The
implausibility of a defendant's story, or any weakness in the evidence supporting that story, is
not a relevant consideration."
This element does not require defendants to prove that they reasonably believed that their
civil disobedience would be the only factor leading directly to an immediate cessation of harm.
Rather, they are required to prove that they reasonably believed that their act of civil
disobedience, as with so many in the history of this nation, would help impel change .
As Judge Edmund Spaeth wrote in his concurrence in Commonwealth v. Berrigan, 472
A.2d. 1099, 1115 (Pa. Super. 1984), rev'd, 501 A.2d. 226 (Pa. 1985), where a Pennsylvania
Superior Court found that nuclear-arms protestors had a right to present the defense:
"Appellants do not assert that their action would avoid nuclear war (what a grandiose and unlikely idea!) Instead, at least so far as I can tell from the record, their belief was that their action, in combination with the actions of others, might accelerate a political process ultimately leading to the abandonment of nuclear missiles. And that belief, I submit, should not be dismissed as 'unreasonable as a matter of law."'
Likewise, in People v. Gray, the Comi stated, "The New York Statute and most common-law
formulations use the term 'necessary' rather than 'sufficient.' In the opinion of this court, a
defendant's reasonable belief must be in the necessity of his action to avoid the injury. The law
does not require certainty of success ." (People v. Gray, 150 Misc . 2d 852 (1991)).
iv. The Efficacy of Legal Alternatives
A final requirement of the necessity defense is that there are no reasonable legal alternatives
to the defendant's conduct:
"that no reasonable legal option exists for averting the harm. Once again, the proper inquiry here is whether the defendant reasonably believed that there was no legal alternative to his actions. The defense does not legalize lawlessness; rather, it permits the comis to distinguish between necessary and unnecessary illegal acts in order to provide an essential safety valve to law enforcement in a democratic society. It has been asse1ied that because a democracy creates legal avenues of protest, alternatives must always exist. In the opinion of this court, however, to dispense with the necessity defense by assuming thatpeople always have access to effective legal means of protest circumvents the purpose of the defense." People v. Gray, 150 Misc. 2d 852 (1991).
This inquiry is necessarily fact-intensive. In a recent discussion of this element, the Supreme
Judicial Court of Massachusetts emphasized that, as with the other elements of the defense, the
inquiry into alternatives must consider the defendant's perspective and the efficacy of various
courses of action: "Our cases do not require a defendant to rebut every alternative that is
conceivable; rather, a defendant is required to rebut alternatives that likely would have been
considered by a reasonable person in a similar situation." Commonwealth v. Magadani, 474
Mass . 593, 601 (2016) . At the offer stage, the defense "does not require a showing that the
defendant has exhausted or shown to be futile all conceivable alternatives, only that a jury [ or
fact finder] _could reasonably find that no alternatives were available ... so long as the
defendant's evidence, taken as true, creates a reasonable doubt as to the availability of such
lawful alternatives, the defendant satisfies" the element. Id. at 600-01.
IV. LEGALANALYSIS
In obstructing traffic during pending construction of the CPV facility, the Defendants acted
with a well-founded belief that their actions would minimize climate change by slowing down
the construction of CPV, raise awareness of its construction and galvanize more public
opposition, compel government action to address global warming and prevent ongoing violations
of the government's duty to protect vital natural resources. This belief was based on an
understanding of the frightening realities of climate change and natural gas hydro-fracking, the
need to cease fossil fuel extraction, transportation and the development of infrastructure relating
thereto, and the efficacy of individual and collective action in creating social change as then
proven by President Obama's denial of the Keystone XL Pipeline permit due to public protest.
President Obama has described climate change as "a peril that can affect generations' and
'one of [the] most severe threats" that "will impact every country on the planet." 1 Current
patterns of fossil fuel extraction and use are predicted to cause catastrophic harm to natural and
human systems, including in the immediate vicinity of this court. Extreme weather events due to
climate change have already taken place and ravaged the region, including Hurricanes Sandy and
Irene. Ultimately, unchecked climate change will result in the collapse of conditions that make
civilization possible, substantial species extinction, and widespread destruction of ecosystems.
A. The Defendants Chose the Lesser of Two Evils
The Defendant's interference with the access road to the CPV construction site was a
much lesser evil than the dangers posed by climate change and hydro-fracking in particular.
Their conduct was intended to implement the statewide ban on fracking. The extraction and
combustion of hydro-fracked natural gas from the Marcellus Shale reserves, in combination with
all the other emerging fossil fuel infrastructure state and nationwide, forces warming in excess of
international targets and causes severe damage to human and natural health. Due to the eleventh
hour nature of the climate crisis, in which each increment of additional greenhouse gas emissions
threatens to trigger climate feedback loops and cause irreversible damage to human and natural
systems, any reduction in fossil fuel combustion or stalling of the construction of fossil fuel
burning infrastructure and energy generating facilities constitutes an aversion of serious harm.
1 Remarks by the President of the United States Coast Guard Academy Commencement, White House Briefing Room: Speeches & Remarks (May 20, 2015), https://www.whitehouse.gov/the-press-office/2015/05/20/remarkspresident-united-states-coast-guard-academy-commencement
By acting to temporarily shut down the access road and obstruct traffic to the CPV
facility, the Defendants acted to slow down the construction of the CPV facility and ultimate
combustion ofhydro-fracked natural gas.
Fmihermore, it cannot reasonably be held that defendants' objective - preventing the
harms caused by climate change and hydro-fracking - are antithetical to shared social values as
to bar the defense when the State of New York implemented a statewide fracking ban on the
basis of the harms caused thereby to people and the Eaiih.
Defendants' experts will testify about the balance of evils and they also expect to explain
the vastly different effects of their acts of civil disobedience and those of continued hydro
fracking, hydrofracked natural gas transp01iation, infrastructure development and resulting
climate change.
B. Defendants Faced a Threat of Imminent Harm
Climate change is an imminent harm. As documented by the scientific consensus
endorsed by a vast majority of world governments, including the United States, the burning of
fossil fuels and resulting emissions of carbon dioxide (CO2) cause global warming, leading to
deleterious effects on human health, the enviromnent and the economy. 2016 will go down as
the hottest year on record (2.6 degrees Fahrenheit above preindustrial levels), breaking the record
for 2015, while 16 of the 17 hottest years ever have come in this century. Global warming has
affected and continues to affect the natural environment, human health, and the economy in
negative ways, including sea level rise, more frequent bouts of extreme weather, the extinction of
plant and animal species, the melting of the polar ice caps, ocean acidification, drought, and
changing climate zones. Burning existing fossil fuel reserves could produce temperatures which
make life as we know it impossible.
In Massachusetts v. E.P.A., 549 U.S. 497, 521-23 (2007), the Supreme Court noted that
"[t]he harms associated with climate change are serious and well recognized" and held that the
EPA's refusal to regulate greenhouse gas emissions was an "imminent" harm to Massachusetts.
Furthermore, in establishing imminence as required under New York State law, with
respect to the harms of climate change, one must consider the meaning of imminence not by a
human scale of time, but rather, a geophysical scale of time. Considering that it took only a
couple of hundred years of burning fossil fuels in the industrial era to reach the precipitous
climate crisis in the 21st century, the past 15 plus years of harm to the envirom11ent and people
due to global warming is in fact beyond imminent; it is actually happening now . HmTicanes
Sandy and Irene are extreme weather events that have been exacerbated by climate change per
recent studies. 2
Defendants ' experts will testify about this imminent harm. The following scientifically
based arguments establish the imminence of the harm and the social prevalence of such beliefs at
the time of the Defendant's action.
i. Increased Levels of Atmospheric Carbon Dioxide Have Driven Global Warming Beyond Safe Levels
CO2 is a naturally occurring molecule that is a by-product of organic processes. Prior to
the development of fossil-fuel burning technologies, the average level of CO2 in the earth 's
atmosphere was 280 paiis per million (ppm) . Andrew Lacis, COi: The Thermostat that Controls
Earth 's Temperature, NASA Goddard Institute for Space Studies (Oct. 10, 2010),
http ://www .giss.nasa.gov/research/briefs/lacis _ O 1/ (last visited July 8, 2014 ).
2 https ://www. the guardian .com/environment/ c I imate-consensus-97-per-cent/2 0 15/j un/22 /new-study-l inks-globalwarm i ng-to-h un-icane-sand y-and-other-extreme-weather-events
Since the Industrial Revolution, however, this level has risen rapidly as previously buried
CO2 has been burned in the form of coal, gas, and oil. The average level of atmospheric CO2 in
June 2014 was 401.14 ppm. National Oceanic and Atmospheric Administration, Recent Monthly
Average at Mauna Loa CO2, http://www.esrl.noaa.gov/gmd/ccgg/trends/ (last visited July 10,
2014).
Higher levels of CO2 interact with water vapor and other greenhouse gases to trap warmth
in the earth's atmosphere. Lacis, supra. In this way, CO2 works as a "thermostat" for the earth,
producing higher temperatures as its prevalence increases. Id. Recent science demonstrates that
climatic "positive feedback loops" exacerbate the warming effects of CO2: for example, as
climate change causes ice to melt, the resulting water traps more heat, magnifying the effects of
global warming. James Hansen, Tipping Point: Perspective of a Climatologist (2009) in Wildlife
Conservation Society, State of the Wild 2008-2009 at 9.
Due to such feedback loops and the earth's long retention of released CO2, the warming
effects of any given emission last up to a thousand years. Environmental Protection Agency
(EPA), Technical Support Document for Endangerment and Cause or Contribute Findings for
Greenhouse Gases under Section 202(a) of the Clean Air Act 17 (December 9 2009) at 16.
A CO2 concentration of 350 ppm is widely recognized as the maximum that the eaith's
atmosphere can sustain before feedback loops trigger unprecedented and disastrous warming. See
Hansen et al., Target Atmospheric CO2: Where Should Humanity Aim? 2 Open Atmos. Sci. 217,
21 7 (2008) ("If humanity wishes to preserve a planet similar to that on which civilization
developed and to which life on Earth is adapted, Paleoclimate evidence and ongoing climate
change suggest that CO2 will need to be reduced ... to at most 350 ppm."); Lacis, supra.
At 401.14 ppm, the atmosphere is now well beyond that limit. If CO2 levels remain above
350 ppm at the end of the present century, the result would be "an environment far outside the
range that has been experienced by humanity, and there will be no return within any foreseeable
generation." Hansen, Tipping Point at 9.
According to the United Nations Intergovernmental Panel on Climate Change (IPCC), a
group of scientists tasked with assessing the science and risks of global warming and whose
work is endorsed by 195 nations, there is now 40% more CO2 in the atmosphere than in pre
industrial times, primarily due to fossil fuel emissions. IPCC, Climate Change 2013: The
Physical Science Basis: Summary for Policymakers. Contribution of Working Group I to the
Fifth Assessment Report of the IPCC (2013) at 11. Ice core sampling, a method of measuring
atmospheric makeup over time, shows current CO2 levels "unprecedented in at least the last
800,000 years." Id. As a result, global temperatures rose around 0.85 degrees Celsius from 1880
to 2012. Id. at 5.
To reduce CO2 levels to 350 ppm by 2100 and avoid rapidly accelerating wanning,
global emissions must be reduced by at least 15% annually beginning in 2020. Hansen et al., The
Scientific Case for Avoiding Dangerous Climate Change to Protect Young People and Nature
(Mar. 23, 2012), http://arxiv.org/pdf/1110.1365 (last visited July 10, 2014).
In sum, the level of CO2 in the atmosphere already exceeds the limit beyond which swift
and unprecedented wanning will occur if serious reductions in further emissions are not
introduced. However, the rate of emissions continues to increase as a result of the consumption
of fossil fuels: in both 2012 and 2013, such emissions increased about 2%. Global Carbon
Project, Global Carbon Budget 2013: Highlights (Nov. 19, 2013),
http://www.globalcarbonproject.org/carbonbudget/13/hl-full.htm (last visited July 10, 2014).
ii. Global Warming Has Already Affected Natural and Human Health
With CO2 emissions already above safe levels, global warming has affected and
continues to affect the natural environment, human health, and the economy in negative ways.
As the United States Supreme Court noted in Massachusetts v. E.P.A., 549 U.S. 497,521 (2007),
"(t]he harms associated with climate change are serious and well recognized." The EPA has
called the case for the connection between global warming and such injuries "overwhelming,"
noting that "climatic changes are already occurring that harm our health and welfare." E.P.A.,
Proposed Endangerment Cause or Contribute Findings for Greenhouse Gases Under Section
202(a) of the Clean Air Act, 74 Fed. Reg. 18886, 18904 (April 24, 2009). As a result of warming
and melting ice, global sea level has risen 8 inches since 1880. Union of Concerned Scientists,
Global Warming Science and Impacts: Sea Level Rise and Global Warming (April 30, 2014),
http://www.ucsusa.org/global_ warming/science _ and _impacts/impacts/infographic-sea-level-rise
global-warming.html (last visited July 11, 2014 ). The recent collapse of a large swath of the
West Antarctica ice sheet is directly linked to global warming and could cause fmiher sea level
rise at a more rapid pace than originally predicted. Justin Gillis and Kenneth Chang, Scientists
Warn of Rising Oceans From Polar Melt, The New York Times (May 13, 2014), Al. In Norih
America, global warming has caused higher temperatures and more frequent bouts of extreme
hot weather. IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability: Chapter 26:
North America. Contribution of Working Group 11 to the Fifth Assessment Report of the IPCC
(2014) at 46. This has resulted in increased drought, more frequent wildfires, and a rise in forest
infestations. Id.. 2011 was the driest year in Texas since 1895; 2013 was the driest year ever
recorded in California. Union of Concerned Scientists, Global Warming Science and Impacts:
Causes of Drought: What's the Climate Connection? (March 17, 2014),
http://www.ucsusa.org/global _warming/science_ and _impacts/impacts/heavy-flooding-and
global-warming.html (last visited July 11, 2014).
In the Northern Hemisphere, spring now a1Tives 10 days earlier than it did 50 years ago,
leading to earlier snowpack melt, drier forests, and more frequent fires. Union of Concerned
Scientists, Global Warming Science and Impacts: Early Spring's Domino Effect (May 12, 2010),
http://www.ucsusa.org/ global_ warming/science_ and_ impacts/impacts/ springs-domino-
eff ect.html (last visited July 11, 2014).
The United States has experienced increases in heavy precipitation and severe storms,
including more frequent hurricanes and floods. IPCC, Climate Change 2014, supra at 46. This
has caused vulnerabilities in agricultural production, water supplies, and human health. Id.. In the
western United States, temperatures have risen on average 1.9 degrees Fahrenheit since 1970,
lengthening the wildfire season from 5 months to over 7 months and causing over a 75% increase
in annual fires bigger than 1,000 acres. Union of Concerned Scientists, Global Warming Science
and Impacts: Western Wildfire and Impacts (July 23, 2013),
http://www.ucsusa.org/global_ warming/science_and_impacts/impacts/ (last visited July 11,
2014).
iii. The Burning of Fossil Fuels Drives Global Warming And Must Be Severely Curtailed To Avoid Catastrophic Consequences
The burning of fossil fuels, such as coal, oil, and gas, releases CO2 into the atmosphere
and is the primary cause of global warming. IPCC, Climate Change 2014, supra, passim;
Hansen, Tipping Point, supra; Lacis, supra. Other so-called "greenhouse gases" such as nitrous
oxide and methane contribute to global warming to a much lesser degree. IPCC, Climate Change
2013: Summary, supra at 11. Due to how CO2 interacts with the climate system, temperature
effects are felt long after the fuels are burned; if all emissions were stopped today, the climate
would still warm moderately before stabilizing for centuries. IPCC, Climate Change 2013: The
Physical Science Basis: Chapter 12: Long Term Climate Change: Projections, Commitments,
and Irreversibility: Contribution of Working Group I to the Fifth Assessment Report of the IPCC
(2013) at 1107. The inertia in the carbon cycle means that the total amount of CO2 in the
atmosphere effects warming more than does the specific timing of carbon emissions. As such,
there is a "carbon budget" that links total historical emissions to discrete temperature increases.
Id. The longer that the burning of fossil fuels continues or even increases, the more rapid and
substantial emissions reductions will have to be in the future. To avoid a temperature increase of
two degrees Celsius - wanning that would produce profound and harmful changes in the global
climate - the total amount of CO2 emissions since the Industrial Revolution would have to be
limited to at most 800 gigatons. IPCC, Climate Change 2013: Summary, supra at 27. About 550
gigatons had already been emitted by 2013. Global Carbon Project, Global Carbon Budget.
Current emissions are at least 10 gigatons per year and increasing. Id.
While it took 250 years to burn half of the carbon budget, conservative estimates predict
that the rest of the budget will be exhausted in less than three decades if current energy
consumption patterns continue. Kelly Levin, World's Carbon Budget to Be Spent in Three
Decades. World Resources Institute (Sep. 27, 2013),
http://www.wri.org/blog/20l3/09/world%E2%80%99s-carbon-budget-be-spent-three-decades
(last visited July 14, 2013).
Because of this trajectory, the United Nations Framework Convention on Climate
Change, signed by 196 countries including the United States, recognizes that "deep cuts in global
greenhouse gas emissions are required." U.N. Framework Convention on Climate Change,
Report of the Conference of the Parties on its seventeenth session : Addendum: Part Two:
Decisions adopted by the Conference of the Parties (March 15, 2012) at 8. There are about 2,800
gigatons of proven fossil fuel reserves still underground. Malte Meinshausen et al., Greenhouse
gas emissions targets for limiting global warming to 2°C, Nature 458 (April 30, 2009) at 1158.
Burning these reserves "would produce a different, practically uninhabitable, planet," with a
temperature increase of 16 degrees Celsius. James Hansen, et al., Climate Sensitivity, Sea Level,
and Atmospheric CO2, NASA Goddard Institute for Space Studies and Columbia University
Eaiih Institute (2012) at 24. Indeed, the carbon budget can accommodate only a small fraction of
the approximately 762 gigatons of publicly listed reserves, whose value is based upon the
assumption that they will be extracted and burned. Carbon Tracker Initiative, Wasted Capital:
Unburnable carbon 2013: Wasted capital and stranded assets (2014),
http://www.carbontracker.org/site/wastedcapital (last visited July 14, 2014).
Without swift action to address emissions and keep these reserves untapped, "climate
stresses will cause profound impacts on ecosystems and society - including the possibility of
species extinction or severe adverse socio-economic shocks." IPCC, Climate Change 2014,
supra at 47. The Arctic may be ice-free by 2050, causing global sea level rise of up to a meter by
2100. IPCC, Climate Change 2013: Summary, supra at 25. The climate is on track for more
extreme st01ms and weather events, id. at 23, including 40 percent greater rainfall during heavy
precipitation events in North America and municipalities experiencing increased flooding. Union
of Concerned Scientists, Global Warming Science and Impacts : Heavy Flooding and Global
Warming: Is There a Connection? (March 19, 2010)
http://www.ucsusa.org/global_wanning/science_and_impacts/impacts/heavy-flooding-and
global-warming.html (last visited July 14, 2014). By the middle of the century, over 70% of
summers are predicted to exceed record high temperatures across much of the continent. IPCC,
Climate Change 2014, supra at 14. Even with a temperature increase of around 2 degree Celsius,
daily temperature extremes will be more exaggerated: by the end of the century, maximum daily
temperatures during the summer will likely be at least 5 degrees Celsius higher than today. Id.
Water quality is expected to decrease as a result of greater rainfall, the effects of wildfires, and
changes in the chemical composition of water supplies. Id. at 16. Annual economic damage from
flooding may increase from $2 billion to $7-19 billion by the end of the century. Id. at 17. As
winters grow milder and soil temperatures rise, there will be an increase in insect and larval
infestations, especially affecting North American forests. Id. at 19. The rapidity of climate
change will make it difficult for ecosystems and species to adapt to changing conditions. Id. at
18. Wetlands will disappear, and invasive species will threaten resident populations such as
Chinook salmon in the No1ihwest. Id. at 20. Crop yields for cotton, soy, and corn range will be
reduced 30-82% by 2100, id. at 23, and warming will increase outdoor air pollution and the risk
of waterborne disease. Id. at 28.
In the instant case, experts will testify that new information surfaced as to the endangered
or threatened species leading to the Defendant's request for a Supplemental Enviromnental
Impact Statement, the dangers of hydro-fracking, including its risk of inducing autism,
establishing the imminence of the harm to the Defendants and their immediate community, in
addition to overall humanity and the Eaiih.
C. Defendants' Beliefs Were Reasonable
Defendants' belief that their actions were necessary was reasonable. To avert or
minimize the worst consequences of climate change, the extraction and combustion of fossil
fuels must be stopped as quickly as possible. The Defendants reasonably anticipated that their
acts of civil disobedience would lead to governmental action to further curb emissions and shed
light on the corruption of the siting and permitting of the CPV facility. In fact, it may very well
have-shortly after the media paid sufficient attention to the Defendants' actions and complaints,
the US Attorneys and New York State Attorney General Office am1ounced their investigation
into, and a few months later, filed charges of corruption and bribery against the energy company
and state officials involved in its permitting . Before their civil disobedience, defendants had
called upon the Town Planning Boards and the Comis to halt construction of the CPV facility
pending the issuance of a Supplemental Environmental Impact Statement given the new evidence
uncovered since its original permitting as paii of a nationwide mobilization for climate justice.
Such an outcome of governmental action was well within the realm of possibility given the then
filed Appeal to the Appellate Division of the Second Department. Using acts of civil
disobedience to galvanize media attention and raise public awareness has been known to
influence the court of public opinion, which often leads to more careful and deliberate judicial
review. And specific to this case, the lower comi's denial of an injunction on construction, as
sought, created even more futility in the legal redress available, because construction is ongoing
even to this day. Defendants were left with no choice but to commit civil disobedience as a last
ditch effort to halt construction when all their legal remedies failed them, with comi and
govermnental officials repeatedly dismissing their reasonable concerns. The Defendants
reasonably believed that their civil disobedience would compel govermnental action because
civil disobedience had proven effective in preventing climate change harms as with the public
outcry leading to then President Obama's rejection of the Keystone XL Permit in November of
2015, just prior to their actions, and, more recently, the Dakota Access Pipeline.
New York courts have accepted the necessity defense in similar circumstances: m
People v. Gray, 150 Misc. 2d 852 (Criminal Court, New York County 1991), involving a bicycle
protest against pollution on a New York City bridge, the Court acquitted all defendants based on
the justification defense, noting that the anti-pollution beliefs of the demonstrators happened to
match the official policies of the New York State legislature: "In fact, in a depaiiure from the
usual situation in citizen intervention cases, it is clear that it is the defendants' point of view
concerning air pollution and its accompanying dangers that has been confirmed and adopted by
the Legislature". The environmental harm against which the defendants acted was "imminent":
"the grave harm in this case is occurring every day". Defendants were permitted to testify that in
their personal experience, ce1iain laudable public goals may only be accomplished by peaceful
civil disobedience when other means have failed: "Each defendant testified that they believed
their actions on October 22, 1990 would have a direct effect in avoiding the perceived harms in
this case. In light of their past experiences, that belief cannot be held umeasonable as a matter of
la%:= =---
~/e v. B?ISS Misc. 2d 128 (Criminal Court, New York County 1991),
defendants were-engaged m a needle exchange program Justified by the ex1genc1es created by
the AIDS epidemic". The Comi held that "it was reasonable for the defendants to believe their
action necessary as an emergency measure to avert an imminent public injury."
Likewise, here, defendants' beliefs were reasonable and consistent with Governor
Cuomo's recently passed ban of hydro-fracking on the basis of hann to people and the
environment, galvanized by public pressure and organizing. Defendants believed that by
slowing down the construction of the CPV through traffic obstruction, they would slow down the
construction of the facility, and the ultimate burning of fossil fuels. Moreover, they believed they
would galvanize broader public suppmi leading to governmental action as happened with the
Keystone Pipeline at the time.
In People v. Gray, supra, where the defendants blocked traffic on Queensboro Bridge in
New York City to protest the opening of a lane previously reserved for bicycles and pedestrians
to vehicular traffic, Id. at 853, the harm sought to be alleviated by those defendants was the
increase in air pollution caused by more the favoring of vehicular traffic in place of non
polluting forms of traffic. Id. at 858. Setting aside the issue of whether the defendants' actions
were actually effective at alleviating the impending harm of air pollution caused by vehicular
traffic, the court held that they were entitled to bring the defense of necessity/duress because they
reasonably believed their actions would alleviate the impending harm. The court reasoned that
"[p]enalizing [the defendants] because a result reasonably expected did not actually occur
immediately following their action, would be contrary to the purposes of the necessity defense."
Id. at 870.
Here, the Defendants believe, and a scientific and legislative consensus exists, that global
climate change is more than imminent, but has already begun; that its impact is highly
destructive and becoming worse both now and within a geophysical scale of time; and that
immediate action is required to avert the worst harms from happening. As in the cited cases,
Defendants' actions did not question, but were in accordance with the goals of, federal and New
York state environmental law.
Defendants merely call for more effective enforcement, not a radical change in law, and
were obstructing traffic to the CPV facility to slow its construction, raise more public awareness
and support to incite swifter governmental or court action and demand that CPV, the target of
their protests, act in accordance with the law.
D. The Efficacy of Legal Alternatives
Defendants must also show the absence of a reasonable, legal alternative to their actions.
Bailey, supra. There was no reasonable legal alternative to the actions of the defendants which
would have alleviated the impending harm. In People v. Gray, 150 Misc.2d 852 (New York
1991 ), the defendants participated in a demonstration on Queensboro Bridge in New York City
"in opposition to the opening to vehicular traffic of the one lane that had been reserved for
bicycles and pedestrians, during evening rush hours" and were charged with disorderly conduct
when they did not comply with police orders to move from the area. Id. at 853. The court
allowed the defendants to bring the defense of necessity, explaining its decision this way:
In this case, the defendants were individuals who were thoroughly familiar with the process by which decisions concerning transpo1iation in New York are made, and who, despite their long history of an advocacy and consultative role in such matters, were completely excluded from the decision making process concerning the closing of a very important roadway for nonpolluting forms of transportation. Where, at the first oppo1iunity, every traditional method of petitioning, letter writing, phone calling, leafletting and lobbying was vigorously pursued by these defendants to no avail, it cannot be said as a matter of law tl)at they did not reasonably believe their legal alternatives to be exhausted. Id. at 868. (Emphasis added) [Exh. 8]
The facts of the present case are similar to those in Gray. With hundreds of others,
defendants had been protesting the CPV facility in Wawayanda for years before they were
arrested. Their activities took many different forms including demonstrations, attending public
hearings, weekly vigils, calls to government officials, and petitions. Some Defendants are
members of Protect Orange County which has been advocating against the CPV facility in
Wawayanda since at least early 2013. Yet they, like the defendants in Gray, have been
"completely excluded from the decision-making process" with regard to the public hearings and
the environmental permitting process. Their protests, letters, public comments and petitions had
been ignored, their attempts at litigation have been stymied, and construction was continuing
regardless of their litigation appeal to higher courts. For these reasons, they reasonably believed
they had no reasonable, legal alternative to their actions which would have effectively alleviated
the impending harm caused by CPV's construction
V. CIVIL DISOBEDIENCE IS A RADICAL ACT OF TRUST, PART OF THE DEMOCRATIC PROCESS
Most of the people found guilty in American co mis tried to achieve a personal end by
violence or fraud. By doing so, they betrayed all of us, refusing to follow the rules to which we
have consented, and to live peacefully and honestly with us in the joint enterprise of a
democracy.
Although its proponents are arrested by the same police, charged with the same paper
fonns, and handled by the same prosecutor, civil disobedience - civil resistance as its proponents
call it-- is something completely different. It is not a betrayal, but a radical act of cooperation.
The defendants in this case, as in the sit ins in Southern lunch counters in the 1960's and those
pai1icipating in Gandhi's famous salt march to the sea, are motivated by an unbearable grievance
and a burning sense of justice. But they also are believers in another set of rules which take
precedence: they do not take up the sword, they don't lie, hide, steal or run away. Their protests
are acts which are calculated to get more attention, to assert more influence, than signing a
petition or writing a letter to the newspaper. But they act peacefully and openly, in a way that,
however frustrating to authority, also proclaims their good faith and cooperation as members of a
democracy.
There is a story that Hitler once privately told Neville Chamberlain that, if he had Gandhi
to deal with, he would shoot him, and if that didn't work, a thousand of his followers, and if that
didn't work, then another thousand . As the execution of the young members of the White Rose
proved, civil disobedience , nonviolence, was in fact impossible in Hitler's Germany. In Gandhi's
case, and Dr. King's, and also in the present case, civil resistance is a radical act of trust, in the
humanity of the police and of the judicial system, that a peaceful attempt to address a burning
injustice will not result in a beating, or in an excessive sentence. A Satyagrahi, a seeker after
truth, said Gandhi, is "never afraid to trust the opponent. Even if the opponent plays him false
twenty times, the Satyagrahi is ready to trust him the twenty-first time, for an implicit trust in
human nature is the very essence of his creed." Louis Fischer, Gandhi (New York: Mentor
1982) p. 36.
George Orwell said that Gandhi assumed that "all human beings are more or less
approachable and will respond to a generous gesture". George Orwell, A Collection of Essays,
(San Diego: Harvest Books 1981) p. 172. Orwell understood that civil resistance is one ofthe
things we do to express a strongly held opinion in a democracy: "Without a free press and the
right of assembly, it is impossible not merely to appeal to outside opinion, but to bring a mass
movement into being, or even to make your intentions known to your adversary." A Collection of
Essays p. 178
The legal philosopher John Rawls devoted a section of A Theory of Justice to "The Role
of Civil Disobedience". Like Gandhi, Rawls understood that anyone engaging in civil
disobedience intends "to address the sense of justice of the majority and to serve fair notice" of
his claims. John Rawls, A Theory of Justice (Cambridge: Harvard University Press 1971), p . .
382. Civil disobedience can only occur in a democratic society conceived "as a system of
cooperation among equal persons". p. 383. In a democracy, Rawls writes, civil disobedience is
therefore "one of the stabilizing devices of a constitutional system .... used with due restraint and
sound judgment [it] helps to maintain and strengthen just institutions," Id., p. 383. Judges, Rawls
urges, "should take into account the civilly disobedient nature of the protester's act, and the fact
that it is justifiable ( or may seem so) by the political principles underlying the constitution, and
on these grounds reduce and in some cases suspend the legal sanction," Id., p. 387.
A Lexis search on "civil disobedience" reveals New York judges who appear to have
followed Rawls' recommendations, without citing him. In People v. Millhollen, 5 Misc. 3d 810
(City Comi, Ithaca 2004), involving a tree-sitting protest at Cornell, the Court recognized "that
peaceful protest is essential to academic freedom and the function of the University as an
educational institution," not very different from an understanding that peaceful protest is
essential to all freedom and the function of the United States as a democracy. In People v.
Bordowitz, 155 Misc. 2d 128 (Criminal Court, New York County 1991), the Comi noted that a
needle-exchange protest during the AIDS crisis "was not one of mere protest against a statute but
was intended to help avert a very real emergency." People v. Gray, 150 Misc. 2d 852 (Criminal
Comi, New York County 1991) involved a bicycle protest against ollution on a New York City
bridge which was "needed to ave1i the harms acted agai t". In People v. Levi, 1 9 Misc. 2d 394
(Criminal Comi, New York City 1990), involving another I-Q.8._~he court found, in
exercising its furtherance of justice powers, that given the "minimal" unlawful impact and
"laudable" objective, ce1iain defendants "should be entitled to be treated with an approach
grounded in the principles of freedom of expression, as well as with compassion".
Justice Benjamin Cardozo wrote: "There is an old legend that on one occasion God
prayed, and his prayer was 'Be it my will that my justice be ruled by my mercy'." Benjamin N.
Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press 1949) p. 66.
VI. CONCLUSION
Nothing poses a greater threat to the health of the planet and its people than climate
change. Former federal judge Alfred Goodwin has noted "[t]hat the cunent state of affairs ...
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