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POST WRITTEN BY: Simon K. Kieser, Pace Law School, LLM Candidate in Global Environmental Law, 2015; Awardee of the Richard L. Ottinger Environmental Scholarship; Graduate Studies Liaison, Student Bar Association; LLM Representative, Environmental Law Society.

montaraThanks to today’s international media network, information is shared more easily than ever, putting increasing pressure on companies to do the right thing. Unfortunately, this has not always been the case and for centuries entire industries, such as the Petroleum industry, did their part to severely damage our planet, with few consequences.

Although it is refreshing to see that the media and the public at large now keep a closer eye on events, such as Deepwater Horizon, holding companies accountable for their actions, similar events outside the USA still go unnoticed and unpunished.

Focusing on inadequate oil spill litigation, this article provides an outline of Australia’s worst oil spill disaster in history, where Mother Earth had to “take one more for the team”.

On 21 August 2009 Australia faced the worst offshore oil spill in history, the Montara oil spill, lasting 74 days and releasing approximately 4.74 million liters of oil during that period. The Montara oil spill started with an uncontrolled release of oil and gas and occurred on an oil rig, operated by PTTEP Australasia (PTTEP AA), 690km west of Darwin, in the Timor Sea.

The Montara incident occurred after several uncontrolled releases of petroleum, containing oil and gas, leaked and the gas suddenly ignited due to metal sparks. Seawater then entered the casing of the well, creating a difficult situation to cap the well with a relief well.  Although PTTEP AA was the operator of the oil rig and thus, was the designated Combat Agency to stop the oil spill, PTTEP AA was incapable to handle the situation and severely prolonged disaster mitigation operations. Although Australia was lucky that no lives were lost and no oil reached the Australian coastline, Montara did have a disturbing impact on the environment, marine life and the Timor Costal area.

Both Australian and Indonesian fishermen have reported that the water around the Timor Sea area became cloudy and itchy after the Montara incident, due to the chemical dispersant sprayed on the oil slick. In addition, sightings of a dead blue whale, dead dolphins and dead fish have been reported and locals state that fish colonies and the vegetation (seaweed farms) has severely suffered.

As stated under the Commission of Inquiry Report, the root causes for Montara were a series of negligent actions and carelessness which included the failure to maintain two well barriers, the failure to verify barriers and the lack of employees’ competence, leading to deficient decision making and poor management of change control.

Adding to the unsatisfied operation standard, PTTEP AA neglected to install a blow-out preventer and ignored to change the 244mm Pressure Containing Cap (PCC) to a 320mm PCC. Once the 244mm PCC had been removed, no new PCC had been re-installed, leaving the well open to the atmosphere.

As if these inexcusable mistakes would not have been enough, incompetent operators and negligent cement workers built ineffective barriers in the shoe track, creating a “wet shoe”. As there was no isolating cement plug in the upper wellbore and no completion Brine, the casing filled with seawater, worsening the situation and triggering the well-blow-out and its associated struggles to stop oil leaking from the well.

The evidence that Montara could have been easily avoided and the fact that the root causes of Montara lead back to PTTEP AA’s ignorance and incompetence are undisputed and thus, one would assume that PTTEP AA would be held accountable, right? Unfortunately, this is not the case.

Although PTT Exploration and Production (PTTEP), the holding company of PTTEP AA, found itself in the Darwin Magistrates Court (Australia’s lowest court) three years after the oil spill, PTTEP only faced fines of up to AUD $1.7 million. Even though these fines seem shockingly low for Australia’s worst oil spill disaster in history, after PPTEP pleaded guilty to the charges, the court handed down a judgment, fining PTTEP in the amount of ONLY AUD $510, 000.

For any person with decent respect for Mother Earth, this judgment is certainly hard to swallow. As Australia has some of the most fragile ecosystems in the world, why would any Australian court make such a poor decision?

The magistrate was of the opinion that PTTEP had made every effort to transform the company’s operation practices and culture to ensure that similar incidents will not occur in the future. Furthermore, the magistrate took into consideration that PTTEP had no prior incident record and that PTTEP pleaded guilty.

One might start to wonder whether these “considerations” are appropriate and adequate for an oil spill that spewed out into the Timor Sea for 74 days at a rate of up to 500,000 liters per day and covering an area of 90,000 square kilometers. I think not!

Unfortunately, the actual environmental harm and long lasting impacts were not considered nor were impacts beyond Australia’s border considered. Yet, the argument that the long lasting environmental harm is of huge magnitude is a difficult one to make.

Unfortunately, no baseline studies had been done before in this area and thus, we know little of how effective the “clean-up” was and how badly the environment is suffering. Furthermore, due to the strong current and isolated location, it is hard to physically see the impacts from the distance and thus, studies and care have been neglected. After all, out of sight, out of mind.

Over the past weeks (five years after the oil spill), new reports have emerged that the Indonesia government is still trying to seek justice for the environment and for the 100,000 Indonesian people that live in the Timor Sea area. According to the reports, the Indonesian government has asked the Australian government to help make PTTEP AA launch an investigation and proper scientific study to determine the effects of the oil spill.

Unfortunately, up until now, the Indonesian government was powerless to seek merited justice. The reason for this ongoing battle against PTTEP AA and the Australian government is that the Montara incident occurred inside Australian territory and Australia has not yet demonstrated any interest in helping.

A statement from the Australian Department of Foreign Affairs and Trade stated: “Scientific studies were conducted in Australian territory following the oil spill. We understand that remote sensing indicated that oil did not reach the Indonesian coastline.”

In addition, a statement from PTTEP AA concluded that “PTTEP Australasia is aware of the claims that the 2009 Montara incident negatively impacted West Timorese fishing and seaweed farming communities. To date, we have not received any credible evidence that oil from Montara caused damage to the environment in West Timor.”

However, the environmental harm that Indonesia witnesses on a daily basis clearly proves otherwise – one only has to take a closer look.

Has mankind really become so arrogant and ignorant that we happily sacrifice our planet at the expense of our future generations only because….we are too lazy to care?

Perhaps one reason why the environment had to “take one more for the team” is because Australia is very easily persuaded to have its natural resources extracted, offering its extraction operations to virtually anyone who is interested, with very little government control and extraction operation regulations.

Another reason could be that, unlike the USA, Australia did not have a much needed “polluter pays principle” at the time the Montara incident occurred. Consequently, PTTEP AA did no face any severe penalties and got away easily.

A third reason might be that people just don’t care.

Whatsoever, in today’s world, with an overflow of international media networks, we do no longer have an excuse to be ignorant. For the sake of Mother Earth, it is time that we hold companies accountable for their negligent and ignorant actions that harm our planet.

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Veterans’ Day

As we celebrate Veterans’ Day on November 11, take a look at the Library of Congress’s Veterans’ History Project, a collection of audio- and video-taped interviews, written memoirs, correspondence, photographs, drawings and scrapbooks of American war veterans and civilians who were actively involved in supporting war efforts (such as war industry workers, USO workers, flight instructors, and medical volunteers. The collections cover the following wars:

  • World War I (1914-1920)
  • World War II (1939-1946)
  • Korean War (1950-1955)
  • Vietnam War (1961-1975)
  • Persian Gulf War (1990-1995)
  • Afghanistan and Iraq conflicts (2001-present).

Created in 2000 by Public Law 106-380 with unanimous support in Congress, the Project contains an individual web page for each veteran who has contributed. The significance of these collected materials is expressed by Teresa Fazio, an Operation Iraqi Freedom Veteran:

It’s important to get every veteran’s story, so future generations can learn about military life from firsthand accounts. Our individual experiences may have been different, but when compiled they form a powerful snapshot of history.

From the ABA Journal. Do you have the skills, traits and values of a good lawyer? Take this quiz to find out. The quiz will let you know what skills are needed to be a great trial lawyer. If you have them, wonderful, if not, you need to work on them.

Court Listener, founded in 2010 by Brian W. Carver and Michael Lissner, is a free legal research platform – an alternative to fee-based research databases. This project is sponsored by the Non-Profit Free Law Project and offers coverage of millions of legal opinions from federal and state courts, and most recently even oral arguments from the US Supreme Court, First, Third, Fourth, Fifth, Seventh, Eighth, Ninth, D.C., and Federal Circuit Court. We previously blogged about the availability of the recordings of Circuit Court’s oral arguments online. Court Listener currently covers 360 jurisdictions. The data available at Court Listener was provided by:

courtlistener

Court Listener offers basic and advanced searches. Advanced search option includes search by citation or docket number, search by case name or judge, ability to pre-filter by jurisdiction or date, ability to filter results by date (newest or oldest first), relevance, or by frequency of citation (least or most cited), option to set a precedential status of a case (precedential, non-precedential, errata, separate opinion, in-chambers, relating-to orders, or unknown), and the search algorithm accepts an impressive list of operators, including for example: AND, OR, NOT (where NOT may also be indicated by a dash – or exclamation point !; ”" Phrase; () Grouped Queries; *, ? Wildcard, and more.

Users may also sign up to receive daily alerts for oral arguments or opinions. Users do not have to be signed in (or create an account) to run a search. Search results can be further refined by date, case name, judge, precedential status, or citation count. A displayed opinion preserves original pagination and includes a full table of authorities, full list of subsequent citations, a link to the original opinion available from the court, and ability to share the URL of the retrieved opinion via email or social media (including FB and Twitter).

The ICTY in its weekly press briefing reported that the trial of Radovan Karadžić concluded on October 7, 2014, after 497 trial days, and according to the most recent estimate, the judgment is expected to be delivered by the Trial Chamber in October 2015.

The Office of the Prosecutor presented evidence from 336 witnesses of which 195 testified during the trial. The Defence presented evidence from 243 witnesses of which 238 testified during the trial. 6669 exhibits were tendered by OTP, whilst the Defence tendered 4806 exhibits . The Trial Chamber presented 3 exhibits.

Mr. Radovan Karadžić, a founding member of the Serbian Democratic Party (SDS), former President of SDS, Chairman of the National Security Council of Republika Srpska (RS), President of the three-member Presidency of RS and later the sole President of RS and the Supreme Commander of its armed forces, was first indicted on July 24, 1995 (IT-95-5). In this indictment, confirmed on July 25, 1995, he was charged with genocide and other crimes committed against civilians throughout the territory of Bosnia and Herzegovina. Later that year, on November 14, 1995, the OTP filed a separate indictment (IT-95-18) charging Karadžić with crimes committed during the Srebrenica events in July 1995. This separate indictment was confirmed two days later.

Thirteen years later, in September of 2008, the OTP amended the first indictment, and, among other things, removed the  original charge of complicity in genocide and lowered the number of municipalities in which the accused allegedly committed the crimes. The ICTY confirmed these amendments stating that the removed crimes “were not supported by the evidence.” Lastly, a third amended indictment was filed in February 2009 adding a previously removed incident in the Sušica camp. The third indictment was in October 2009 re-visited and marked-up removing seven additional municipalities and seven out of eight incidents in the eighth municipality. Radovan Karadžić was charged “on the basis of individual criminal responsibility under Art. 7(1) and superior criminal responsibility under Art. 7(3) with genocide, persecutions extermination, murder, deportation, inhuman acts, …, unlawful attacks on civilians, acts of violence the primary purpose of which is to spread terror among the civilian population, taking hostages….”

The accused was arrested on July 21, 2008 by the Serbian authorities and 9 days later (on July 30, 2008) transferred to the custody of ICTY in the Hague. It took eight months before a plea of not guilty was entered on the accused’s behalf. The trial commenced on October 26, 2009 and concluded nearly 5 years later, on October 7, 2014. Although trials at the international tribunals take longer, this one was prolonged by the non-compliance of the accused who failed to appear on multiple occasions, claimed inadequate time to prepare, and continued to disrupt the proceedings. The Court therefore held a hearing and on November 5, 2009 issued a decision in which the Court found that the accused had “substantially and persistently obstructed the proper and expeditious conduct of his trial,” thereby meeting the test for appointment of counsel set out by the Appeals Chamber. The Registrar was ordered to appoint a counsel for the defendant, prepare the case to represent the defendant’s interest, and the trial was ordered to resume on March 1, 2010.

A full documentation of the case can be found on the official website of the ICTY, including the case information sheet and all other related documentation (indictments, transcripts, trial chamber decisions and orders, appeals chamber decisions, orders, and judgments, and any other documents) are available on the official case website: IT-95-5/18-I.

The ICC Legal Tools Database is another platform providing access to the leading information on international criminal law, including international criminal decisions of, among others, the International Criminal Tribunal for former Yugoslavia (ICTY).

And lastly, the International Crimes Database (first premiered a year ago in November 2013), offers access to information and decisions on “international crimes adjudicated by national, as well as international and internationalised courts.” Cases can be browsed by a name, a category including the category of genocide, war crimes, crimes against humanity, crime of aggression, torture, piracy, and terrorism, or it can be searched.

In a October 13, 2014 appearance on Bob Herbert’s Op-Ed. TV program, Prof. Thomas M. McDonnell addressed the challenge posed by the rise of ISIS. He explained “what led to the situation we now face in the war torn countries, and discusse[d] how our involvement should be open to a national debate.” In the interview, he summarizes the major immediate and historical causes that gave rise to the ISIS terrorist group, outlines the role of U.S. Senate and its authority in declaring war, and addresses the use and the effectiveness of the use of drones by the U.S. military.


 

Thomas M. McDonnell is a Professor of International Law at Pace Law School where along International Law, he also teaches International Human Rights, Constitutional Law, and Criminal Law. His work related to the struggle against terrorism also includes the following:

2010 Orientation 40The following are the most recent additions to our Law in Film collection. This collection is housed on the library’s main level in the student lounge. All Pace Law Library patrons with borrowing privileges may check any of these films out at no charge for up to five days. Come by and check it out!

Environmental Law

Damnation (Patagonia’s Stoecker Ecological + Felt Soul Media production; executive producer, Yvon Chouinard; produced by Matt Stoecker and Travis Rummel; directed by Ben Knight and Travis Rummel; narration written by Ben Knight) [PN1997.2 .D36 2014 DVD] – “This film odyssey across America explores the sea change in national attitude from pride in big dams as engineering wonders to the growing awareness that our own future is bound to the life and health of our rivers.”

Pandora’s Promise (Impact Partners present in association with Robert Stone Productions, Vulcan Productions and CNN Films a Robert Stone film) [TK9145 .P36 2014 DVD] – Favorite at the Sundance Film Festival, Pandora’s Promise “asks whether the one technology we fear most could save our planet from a climate catastrophe, while providing the energy needed to lift billions of people in the developing world out of poverty.”

Criminal Law

The Wire: The Complete Series (presented by HBO Original Programming; producer, Nina Kostroff Noble et al.; directed by Clark Johnson et al.; written and created by David Simon et al.) [PN1992.77.W57 W57 2011 DVD] – All five seasons of an urban epic set in Baltimore, where police detectives investigate cases involving the illegal drug trade, the seaport system, the city government and its bureaucracy, the school system, and the print news media.

Mental Health Law

I am Sam (by New Line Cinema presents; directed by Jessie Nelson; written by Kristine Johnson & Jessie Nelson; produced by Jessie Nelson et al.; Richard Solomon, Marshall Herskovitz, Edward Zwick; in association with “Sam” productions GMBH & Co. Kg; a Bedford Falls company, Red Fish Blue Fish films production) [PN1997.2 .I165 2002 DVD] - Sam Dawson has the mental capacity of a 7-year-old. He works at a Starbucks, is obsessed with the Beatles and has a daughter with a homeless woman who abandons them. As the daughter reaches age 7, Sam’s limitations start to become a problem. When the authorities take his daughter away, Sam shames a high-priced lawyer into taking his case pro bono.

Via In Custodia Legis, the Library of Congress announced that through an agreement with William S. Hein & Co., it will now offer free online access to historical U.S. legal materials, which include the following:

These titles are available through the Guide to Law Online: U.S. Federal compiled by Library of Congress.

Check this article from the ABA Journal “Ten Tips for Better Legal Writing” to help you produce better legal papers through research, understanding, and proofreading.

The New York Board of Law Examiners (BOLE) has recommended to the New York Court of Appeals that New York adopt the Uniform Bar Exam (UBE), effective with the July 2015 bar exam. This proposal is open for comments until Nov. 7, 2014. From the request for public comment:

The UBE is prepared by the National Conference of Bar Examiners (NCBE) and passage of the test would produce a portable score that can be used to gain admission in other states that accept the UBE, provided the applicant satisfies any other jurisdiction-specific admission requirements. As the UBE is accepted by more states, the portable score will facilitate lawyer mobility across state lines, resulting in expanded employment opportunities for lawyers throughout the nation and facilitating multi-state law practices.

Persons or organizations wishing to comment on this proposal should e-mail their submissions to UniformBarExam@nycourts.gov or write to: Diane Bosse, Chair, New York State Board of Law Examiners, Corporate Plaza, Building 3, 254 Washington Avenue Extension, Albany, NY 12203-5195. Submissions will be accepted until November 7, 2014.

Anyone can comment on the proposal, but the comment period closes on Nov. 7, 2014.

New York Court of Appeals Request for Comment

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