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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