May 10 2010

Judge Kim Gibson

Gibson’s Law Clerk from George Mason University Law School

Blogs About “Victims of Eminent Domain”

Then Deletes Comment from Victim of Eminent Domain

Penn State Grad Now Works for Judge Gibson in Johnstown, PA

Uses Smiley Faces

Why Did Law Clerk Censor Blog Comment?

Adverse Effects of Spectra Energy’s Eminent Domain

How often does one get a chance to help a law clerk for a federal judge grow in wisdom and grace on the issue of eminent domain?  In a blog yet.

Josh Blackman is a law clerk for Judge Kim R. Gibson of the US District for the Western District of Pennsylvania (Johnstown, PA).  Blackman is a graduate of Penn State University and George Mason University School of Law (Magna Cum Laude), where he was also an editor on the Law Review.

Mr. Blackman is in a position to examine first hand how judges treat the victims of eminent domain cases; and to confirm that property owners do not stand on a level playing field legally, economically or politically.

Self-Absorbed Blog

Law Clerk Blackman is the author of a breathlessly self-absorbed blog.  In a recent post on eminent domain, he was “proud to report that my most recent article [on eminent domain] has been published in the Loyola Law Review.”  Link to Blackman’s Post: http://joshblackman.com/blog/?p=4340&cpage=1#comment-3512

His post voiced sympathy for “victims of eminent domain takings,” but he quickly removed a comment from a victim of eminent domain and has declined to respond to two of my queries sent via his blog site.

Judge Kim R. Gibson

His boss, Judge Kim R. Gibson, could provide primary source material to Mr. Blackman.  And the eminent domain action took place in Bedford County, PA, not far from Johnstown where Gibson and Blackman are located.

On Sept. 19, 2008, Judge Gibson granted $5 billion Spectra Energy the right to take “immediate possession of and entry onto the [five] properties owned by the Defendants.”  Houston-based Spectra Energy came to Pennsylvania in order to seize property and/or property rights to construct a 12 billion-cubic-feet underground natural gas storage reservoir.  This project is known as Steckman Ridge.

The irony, as property owners can attest, is that Spectra Energy was already doing construction work on these properties.  Apparently, it was not afraid of offending the court prior to a decision.

“Irreparable Harm”

Attorneys have told me it is essential to establish “irreparable harm” in an eminent domain case.  In Gibson’s section on “Irreparable Harm to Steckman”- his decision appears to hinge on financial harm to Spectra Energy because the company won’t meet its commercial deadlines for making money by selling gas storage to other gas companies.1 (For a pdf file of Gibson’s 36-page memorandum, see “Links & Resources” below.  The “Irreparable Harm” section is found on pp. 30-33 of his order; pp. 32-34 of the pdf file.)

Since when is it the public’s responsibility to ensure a company’s commercial success?  Gibson’s thoughts on “harm to Steckman” run 3 pages while the “harm to defendants” – otherwise known as “victims of eminent domain takings” -  is brushed away in less than a page (p. 33 of original document; p. 35 of pdf file).

It is always easy for theorists to manage other people’s lives.  But this post will look at the adverse effects of eminent domain under the subhead, Adverse Effects for Landowners.

“Public Interest”

In his section titled, “Public Interest,” Judge Gibson emphasizes supplying gas for the “heating season,” as if there were no gas available (emphasis added):

“The Court finds that timely completion of the natural gas storage facility will assist to a reasonably significant degree in ensuring an adequate supply of natural gas for the public during the 2009-2010 heating season (November 2009-March 2010). Failure to complete this project could have an adverse effect on the supply of natural gas for the public or could adversely impact natural gas prices.” (p. 34-35 of Gibson’s order; pp. 36-37 of pdf file)

For those who like to manage by facts, this is a significant assertion, yet it offers no facts in support of it – other than to cite three platitudes from the Federal Energy Regulatory Commission, which again offer no facts to substantiate concern about an alleged heating season supply crisis or price stability.

Spectra Energy’s 12 billion-cubic-feet underground natural gas storage reservoir was said to be vital to the public interest.  Apparently, however, Gibson was unaware of the fact that Pennsylvania has more underground gas storage fields than any other state in the continental US, according to the Energy Information Administration of the Department of Energy.2 (For a link to the EIA report, see “Links & Resources” below.)

Eminent domain is an important issue that is getting a lot of attention in communities and states across the country.  Pennsylvania and New York will see more eminent domain takings because of the shale gas “boom” (Marcellus Shale — a big topic at Blackman’s undergrad alma mater, Penn State).  More drilling means more pipelines, which mean more threats of eminent domain; and perhaps even more underground gas storage reservoirs.

Surprise!  Our Blog Kept a Copy of JOSH’s Blog

Since Mr. Blackman invites comments, I twice posted essentially the above on his blog (mine was comment #6); but it was removed the same day.  Mr. Blackman has yet to reply to my queries as to why the comment was removed.

I anticipated Mr. Blackman’s action, however, and made a pdf file copy of the blog post while it still had my comment.3 Social media technology cuts both ways, Mr. Blackman.  (See “Links & Resources” below for a copy of the post with my comment — #6.)

Perhaps Mr. Blackman was concerned that Judge Gibson would chastise him for permitting one of the “victims of eminent domain takings” to have the temerity to challenge the judge’s rationale — even in such a small way as a comment on his law clerk’s blog.

This on a website that, in addition to blog posts, offers JOSHPICS, JOSHCASTS, AND JOSHVLOGS, to name only a few selections.

JOSHPICS, for example, is an album with more than 35 photos (at last count) of JOSH with legal and political celebrities.  Plus there are 25 photos of JOSH’s autograph collection with many of the same notables.

He even posts a video of his 91-year-old grandfather commenting on Chief Justice Roberts.  Then, as if to ensure grandfather doesn’t steal the show, JOSH notes:  “And you wonder where I get my opinionatedness from,” punctuated by a smiley face.  Seriously.  Here’s a pdf file copy: joshvlogs-c2ab-grandfather-smiley-face

It’s beginning to look like it’s all about JOSH!

Learning comes in two forms, it is said:  parchment (formal education) and scar tissue (life’s experience).  In an effort, to provide some of life’s wisdom and guidance to a law clerk and magna-cum-laude law school grad, here is a grown-up conversation for JOSH – with no smiley faces.

Open Letter to JOSH Blackman

From your website to your less-than-compassionate response to one of the “victims of eminent domain takings,” one infers that you are more comfortable with abstractions than real life.  (All the photos with legal and political celebrities are part of an abstract fantasy, just like the Supreme Court fantasy league on your website.)

As you tell the ABAJournal Blawgs Directory: “I am pursuing a career in legal academia, and hope to use this blog as a sandbox for my developing thoughts and ideas.”4 (See “Links & Resources” below.)

Children play in sandboxes; and trial law is not a place for children.  It has been said that trial law is the last true blood sport.  So it makes sense that you’d rather be in “legal academia.”

Stand Up for Your Principles

Part of your personal challenge as you strive to grow in wisdom and grace will be to stand up for your principles.  Unless, of course, you are merely substituting platitudes for principles because it feels good and sounds good.

If you really believe in “the victims of eminent domain takings,” don’t run from one because he critiques your boss’ decision.  (And shame on your boss IF he would be displeased with you because such a comment appeared.)

Yes, it is not easy to stand up to the boss.  I’ve gone toe-to-toe with CEOs, and it isn’t fun.  But I respected them and believed in my own point-of-view.  You can fight for your principles without being nasty or cowardly.

When your boss cited the three platitudes from the Federal Energy Regulatory Commission to justify the “public interest” taking, one of the points said in part (emphasis added):  “Based on the benefits the Steckman Ridge Project will provide to the market and the lack of any identified adverse effects on … landowners or communities….”

Adverse Effects for Landowners

Perhaps you and Judge Gibson would come to Bedford County and see what property owners now live with.  Remember the law of unintended consequences as it applied to the Supreme Court’s Kelo decision.

With its threat and power of eminent domain, granted under the badge of government, Houston-based Spectra Energy constructed its Steckman Ridge facility.  It is a 12 billion-cubic-feet underground natural gas storage reservoir, with a nearly 5,000 horsepower compressor station sitting on top, with more piping than a small city.  (See photos at bottom of blog post.)

Homes are nearby and an elementary school is 3 miles away.

Among the adverse effects, there are reports of contaminated water supplies and dead livestock.  At least one family has filed a lawsuit against Spectra Energy.

Among the adverse effects, there have been ongoing operational problems at this facility from the beginning.  This includes emergency shutdowns which result in uncontrolled release of gas (toxic volatile organic compounds) and sometimes oily contaminate into the air (and on nearby properties).

Both Spectra Energy and the Pennsylvania Department of Environmental Protection (DEP) keep repeating that such shutdowns/blowdowns are “not uncommon.”  Both use identical language, but they refuse to furnish the stats.

After months of prodding, Spectra Energy finally admitted, “Yes, we do track all of our compressor units’ performance as part of our system reliability monitoring efforts, but this is not data that we report externally.”

The company also declines to let me interview the project engineer for this facility.  Why?  Wouldn’t an engineer who led the team to build this facility be able to answer questions with fact-based responses?  Wouldn’t he be proud to verify that this facility was built to the highest engineering standards?

Unless it wasn’t.

Could Judge Gibson Help Us Get Info?

Hey, maybe the judge could issue an order requiring Spectra Energy to release its data and permit its project engineer to answer questions!  A little pro bono work to help victims of eminent domain.

One government official told me, “We are mystified at why this compressor station is having a lot of problems.  Compressor stations do not typically have lots of hiccups…. This is not new technology … it is standard technology, at least 50-60 years old.”

In the meantime, based on unofficial record keeping by nearby landowners, there have been 25 shutdowns and/or blowdowns of the Steckman Ridge compressor station between August 23, 2009 (the first, big emergency shutdown) and the end of April 2010.

Why must the victims of eminent domain assemble information on the ongoing performance problems at this facility?  Why doesn’t Spectra Energy disclose the information?  It keeps telling everyone in sight that it wants to be a good neighbor.

And gives out refrigerator magnets to prove it.

Track Record Looks Like a Rap Sheet

Our concern is significant because Spectra Energy has a track record that looks like a police rap sheet (a little legal lingo there):

  • Unlawful Conduct” – The Pennsylvania DEP has issued two Notices of Violation for the company’s “unlawful conduct.”5 (See “Links & Resources” below.)
  • Fiery inferno – Spectra Energy’s underground gas storage reservoir outside of Houston (Moss Bluff) suffered catastrophic failure in 2004 with two explosions, 6 days of fire with flames as high as 1,000 feet and two evacuations.  The company does not want to talk about it.  The project manager at FERC told me they were not aware of this when they approved Spectra Energy’s proposal for the storage reservoir in Bedford County.6 (See “Links & Resources” below.)
  • PCB Contamination – Spectra Energy acknowledges in its Form 10-K (filed with the Securities and Exchange Commission on Feb. 27, 2009) that, “some of our pipeline systems are contaminated with [toxic] PCBs.”  The EPA has concluded that PCBs cause cancer in animals and are a probable human carcinogen.7 (See “Links & Resources” below.)
  • Top Civil Penalty Ranking – Spectra Energy’s Texas Eastern pipeline division is tied for #7 on the EPA’s list of the 21 “Top Civil Penalty Cases of All Time” – the National Enforcement Trends (NETs) document which is on the EPA website.  The $15 million penalty was for massive PCB contamination along the company’s 9,000-mile pipeline.8 (See “Links & Resources” below.)

It seems reasonable to conclude that Spectra Energy is in Pennsylvania to capitalize on the so-called Marcellus Shale “boom” – about which there is much controversy on whether the risks will outweigh the benefits.

Approved for Hydraulic Fracturing & Toxic Chemicals

You see, JOSH, while this is a so-called storage reservoir, Spectra Energy has drilled and is operating 13 injection/withdrawal wells; and has permission from the Federal Energy Regulatory Commission (FERC) to drill 10 additional wells for a total of 23.

Further, according to FERC, Spectra Energy filed for the record nearly 300 pages of Material Safety Data Sheets (MSDS) “for every drilling mud and hydraulic fracturing component it could possibly use.”  Several of the chemical compounds listed in the MSDS papers are identified as cancer causing or probably carcinogenic.

FERC further acknowledged that, “If their tests show that they are not getting optimal flows, they would perform hydraulic fracturing to improve the flow of gas.  A propping agent such as sand would then be used to keep the fractures open.”  Sand, water and chemicals – hydraulic fracturing, with all of its environmental problems.

The Pennsylvania DEP Oil & Gas Inspector for Bedford County also confirmed that Spectra Energy requires no special permit for hydraulic fracturing.

So, JOSH, thanks for your less-than-compassionate response to the “victims of eminent domain takings.”  May you grow in wisdom and grace.  And may you and your family never, ever face the threat of eminent domain, and the adverse effects that follow.

Links & Resources

1 Memorandum Opinion and Order of Court – Judge Gibson’s opinion ruling against property owners and for big gas, Houston-based Spectra Energy. Note:  Because of a distribution memo on the front, there is a two-page difference in the pagination cited between Gibson’s memorandum and opinion and the pdf file. Thus page 33 of Gibson’s order is page 35 of the pdf file:  memorandum-opinion-order-of-the-court

2 The EIA report on underground gas storage fields in Pennsylvania and the US is available at this link: http://www.eia.doe.gov/pub/oil_gas/natural_gas/analysis_publications/ngpipeline/undrgrnd_storage.html

3 Josh Blackman’s original blog post with uncensored comments – see pp. 4 &5 of pdf file: kim-gibsons-law-clerk-blog-eminent-domain1

4 ABAJournal Blawgs Directory: josh-blackmans-blog-blawgs-aba-journal

5 Unlawful conduct – Details are treated in two posts on my website which include testimonials from landowners and documents such as the DEP “Notice of Violation” and Spectra Energy’s formal response.  Unfortunately, on the day before “April Fool’s” day, the DEP announced it had fined Spectra Energy a pathetic $22,000 for air and water quality violations at its Steckman Ridge compressor station.

Emergency Shutdown: http://www.spectraenergywatch.com/blog/?p=372

Spectra Promises: http://www.spectraenergywatch.com/blog/?p=466

6 Fiery Inferno – This post on this incident is detailed and offers external sources for verification.

Moss Bluff Incident:  http://www.spectraenergywatch.com/blog/?p=390

7, 8 PCB Contamination – Details and source documents (including Spectra Energy’s 10-K Form and the EPA Top 21 List) are covered in two posts.

Spectra PCBs 2: http://www.spectraenergywatch.com/blog/?p=498

Spectra PCBs?: http://www.spectraenergywatch.com/blog/?p=480

Clearville’s Blog -  For more perspective on the adverse effects of Spectra Energy’s operations in Bedford County, check out this blog and its video posts.  In particular, see these two posts:

Clearville “Big Bird Report” Spectra Energy’s Steckman Ridge Compressor Station 2010: http://clearville.wordpress.com/2010/01/27/clearville-big-bird-report-steckman-ridge-compressor-station-2010/

Spectra Energy’s Steckman Ridge Compress Station & Chemical: 1,2 Dichloroethane: http://clearville.wordpress.com/2010/01/26/352/

Spectra Energy's Steckman Ridge compressor station in Bedford County, PA.  Note how close it is to a home and a child's playset.

Spectra Energy's Steckman Ridge compressor station in Bedford County, PA, with home and child's playset nearby. It has had ongoing operational problems since its startup. (Click on photo to enlarge.)

This is a portion of the Spectra Energy facility which looks like a small city and sits on top of a 12 billion cubic feet underground gas storage reservoir.

This is a portion of the Spectra Energy facility which looks like a small city and sits on top of a 12 billion cubic feet underground gas storage reservoir. (Click on photo to enlarge.)

Welcome to the land of "adverse effects" on property owners, thank to Spectra Energy, FERC, and the court.

Welcome to the land of "adverse effects" on property owners, thanks to eminent domain brought by Spectra Energy, the Federal Energy Regulatory Commission, and the court. (Click on photo to enlarge.)

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