Tag: Michael Wells

Miami Destined to Be Under Water

Washington (GGM) Analysis | December 23, 2020 by Attorney Michael Wells, PodcastLegal Fact and Fiction

By 2100 the ocean will cover one-third of Miami. This means at least eight-hundred thousand people or one-third of the population will be displaced, making a large portion of the city uninhabitable. With this in mind, in 2019,  the State of Florida passed a law, which removed the requirement that a property owner obtain a permit before chopping down a tree. Now trees can be cut down with impunity. Miami’s sea level rose one foot from the early 1900s until 1993, and it rose five inches since 1993. It is only a matter of time before the whole city is flooded.

A September 29, 2020 article from Yale University’s School of the Environment argues Miami will eventually be swallowed by the ocean. The article attributes this to Miami’s location, the weather, climate change, and continued building and development in the Miami area.

The problem is exacerbated by Miami sitting atop a limestone aquifer, which allows sea water to seep in through the ground even before the rising sea levels overtake the city. This problem is exacerbated by the massive amount of multimillion dollar development done in Miami, primarily in the form of oceanfront highrises. Given the lack of tree planting, heavy buildings, and soft ground, it is a recipe for disaster. 

One effort to save Florida, and Miami in particular, is an initiative urging people to plant mangrove trees in their yards. Mangroves serve to hold the ground together, thus preventing erosion, but they also sop up water and other moisture. 

The world loses fifteen billion trees per year, and, since civilization began, forty-six percent of trees have been removed. To add a little context to this, Florida has seven billion trees. 

This is a complex problem, but the 2019 law removing the permitting requirement to cut down trees certainly hurt the situation in Miami. The law is called “Private Property Rights,” which is an absurd title because it makes the destruction of the environment a deprivation of liberty question. It is not, really, because the purpose of the original law was to preserve trees, and, ultimately, blunt the impact of climate change. Now, however, this will be more difficult. 

Hurricane Katrina in New Orleans in 2005 showed what happened to cities below sea level when the right kind of storm hits. Something like this will happen in Miami eventually, and Miami will be largely under water. 

From not wearing masks to cutting down trees that do not need to be removed, Americans have a self-destructive desire that likes to masquerade as “individual rights.” In a perverse way, this misguided notion of freedom will ultimately lead to the destruction of the environment in the United States with Miami being only one example in this ongoing literal and metaphorical flood. 


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Chopping Down Trees Creates Legal Liability

Washington (GGM) Analysis | December 16, 2020 by Attorney Michael Wells, PodcastLegal Fact and Fiction

Trees provide everything from oxygen to habitats for animals, yet they are chopped down with impunity. The damage to the environment is incalculable. To put it into perspective, however, half the number of trees exist now than those in existence when humans first evolved; fifteen billion trees are cut down annually; and ten percent of climate change is attributable to chopping down trees. Environmental carnage aside, legal liability and criminal liability exist for cutting down trees that do not belong to the harvester.

The legal terms most closely associated with cutting down and removing trees that do not belong to the harvester are “timber trespass” (mistakenly harvesting trees from another’s property) and “timber theft” (stealing trees from someone’s property). Timber trespass deals more with the civil end whereas timber theft can involve civil and criminal penalties. It varies from state to state. Nevertheless, lawsuits are filed for large sums of money over taking timber that does not belong to the harvester. 

In South Carolina, as of 2016 one-hundred cases per year are investigated and pursued with a value of between $500,000 and $600,000. A man in North Carolina illegally cut timber near Asheville, the value of the trees owned by a conservancy assessed at $1,000, but the mill rights to the timber of $25,000-$30,000. 

Illegal tree harvesting tends to be less of a problem in North Carolina, which has a larger population, than it is in Maine, which has a smaller population and vast swaths of uninhabited forests. Maine has over one-thousand complaints of timber theft each year.

The damage to the environment cannot be separated from the legal issues that arise from stealing trees, which are property, but they are far more than that to every living thing. In the most basic sense, illegal harvest of trees contributes to the problem of deforestation:

Over half the world’s land-based plants and animals live in forests, and three quarters of the world’s birds live in and around forests. It does not take a science PhD or intricate knowledge of environmental science or ecology to understand that the more trees that are cut, the more environmental problems that will follow.  

And it is a problem all over the world from the rainforests in South America to the United States to even Ireland:

All of it is interconnected, and every time a tree is cut down (regardless if it is replaced), the owner of the tree is impacted as is the rest of the planet. While planting new trees can certainly mitigate the problem, it cannot recapture what is lost every time a tree is cut down. Sadly, the only way to stop harvesting of trees may be filing lawsuits because people and corporations tend to respond the most when their money is on the line. 

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Single-Use Plastic Bags MUST Go

Washington (GGM) Analysis | November 19, 2020 by Attorney Michael Wells, PodcastLegal Fact and Fiction


With the world in the grip of a pandemic, everyone wants something to make life less troublesome. Plastic bags make carrying things much easier. More items can be carried, which means you can avoid going back to your car in the rain or marching through the snow to retrieve that one last item. If only it were so simple. If only we did not have to worry about the environment.

On March 1, 2020, New York state’s ban on plastic bags became law. This means any entity authorized to collect sales taxes cannot distribute plastic bags. Failure to follow this law subjects the entity to up to a fine of up to five-hundred dollars per incident. The State of New York created the ban for good reason. Prior to the ban, New York State produced on average twenty-three billion bags per year, which filled already overflowing landfills, snagged recycling sorters, and wreaked havoc with birds to name just a few problems.

New York is not the only state that passed such a ban. Eight other states (California, Connecticut, Delaware, Hawaii, Maine, Oregon and Vermont) have passed similar laws.

Of course, not all states have such rules, and these states still produce millions of plastic bags. It does raise the question: can lawsuits force other states to ban plastic bags?

Maybe. It is probably a state by state process unless Congress passes a statute under, for example, the Interstate Commerce Clause, that says plastic bags somehow affect interstate commerce. That may sound far fetched, but it is not. The Interstate Commerce Clause allowed Congress to pass much of the civil rights legislation, and it is quite a big stick to bludgeon states into submission. Whether Congress wants to take this up remains doubtful. 

In states that have the plastic bans, the bans are not absolute. New York has some restrictions. Most notably restaurants that offer takeout food, which in the age of COVID-19, can create many plastic bags, are exempt. Although it is likely not “an exception that swallows the rule,” this limitation still creates a problem when so many more people are getting takeout and likely will for the foreseeable future as virus numbers explode. 

But what about other plastic or rubber? 

Rubber glove use during the pandemic harms the environment, and there is no end in sight. While banning plastic bags everywhere will help, it will not solve all issues. It should still be done, however. 

More needs to be done because bags are not the only problem:

While plastic bags certainly make things easier to carry, their burdens to the environment certainly outweigh their benefits. The extent to which lawsuits or Congressional action will limit their use remains unknown. People should count on neither. It really is about personal choices, which must also be made with respect to other items people use. Over time it can all add up to pollution, death, and, as we have seen with COVID-19, a pandemic.

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Biden Won | Will There Be An Electoral College Coup?

Washington (GGM) Analysis | November 11, 2020 by Attorney Michael Wells, PodcastLegal Fact and Fiction

On November 7, 2020, Joe Biden unofficially became the President-Elect, and Kamala Harris unofficially became the Vice President-Elect. Normally the losing candidate, in this case Donald Trump, accepts defeat and contacts the winner to congratulate him or her. Not Donald Trump. He made unsubstantiated claims of “voter fraud,” and then he never backed down. This likely surprised very few as Trump claimed back in 2016 the election was rigged, and he claimed it was rigged again in 2020. What is troubling, however, is most of his party, led by stalwarts such as Senators Mitch McConnell and Lindsey Graham, continue to argue Trump has every right to challenge the election results. And these fears became more real when on November 9th Attorney General William Barr opened up a probe into “voter irregularities” without alleging any evidence. It all smacks of hyper partisanship, and it raises the question as to whether an Electoral College coup is afoot. 

Every four years the Electoral College meets in December. Each state’s electors then vote for the candidate who prevailed in the presidential race in their respective state. This is how it almost always happens. Different states certify their elections on different dates, but the Electoral College meets on December 14, 2020 and votes.

This year Michigan, Pennsylvania, and Nevada proved decisive. Nevada certifies its election on November 16th. Michigan and Pennsylvania certify their elections on November 23rd

All legal challenges must be filed by December 8th, the so-called “Safe Harbor” date. In other words, challenges cannot be lodged after that date. It should be noted all challenges filed by Donald Trump’s campaign have been dismissed thus far. One filing was improperly filed and therefore rejected.

This is a short summary of the legal process involved. In all likelihood, everything will run smoothly, and Joe Biden will be declared, officially at least, the President-Elect. 

This does not answer the question as to whether Trump’s supporters, both elected and otherwise, will accept the results of the election. Quite frankly, it does not matter if they accept the results. 

Recent rhetoric from supporters has sounded alarm bells such as Senator’s McConnell’s statement that Trump was “100% within his rights to challenge the results of the election.”

On November 10th, Secretary of State Mike Pompeo said:

Conservative commentator Bill Kristol responded, “Be alarmed,” in response to this troubling statement. And he is right. 

Perhaps the best quote as to the vagueness and lack of substance of “voter fraud” came from Senator Lindsey Graham, who said: “And we will continue, in spite of my democratic colleagues protestations, we’re going to find someone accountable for something, when it comes to crossfire hurricane.”

Legally, the important dates to keep in mind are:

  • December 8th “Safe Harbor” deadline (no lawsuits after this date).
  • December 14th Electoral College meets and votes (it is over after this date). 

Are there conspiracy theories out there? Yes. Could there be violence? Yes. Sadly, violence is always possible in America, but legally speaking not much will happen. The Electoral College will meet December 14th, and Joe Biden will officially become President-Elect. Again, this all assumes we do not fall into lawlessness and utter chaos. If we do, the law will not matter. 

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Fracking May Decide Pennsylvania

Washington (GGM) Analysis | November 4, 2020 by Michael Wells, Attorney @slnc01

Former Vice President Joe Biden and President Donald Trump are locked in a tight battle for the presidency, which may come down to Pennsylvania. Big coal and facking employ many people in Pennsylvania, and, understandably, fracking is a huge issue. All the votes have been cast and are being counted, but the Pennsylvania race (and possibly the presidency) may come down to the issue of fracking. The two candidates’ positions are more similar than you may think.

Hydraulic fracturing (fracking) is a technique for extracting oil and natural gas by firing pressurized liquid into the Earth’s crust. Trump has long supported the practice and has even signed an Executive Order to protect fracking. Biden’s position has been to say he will not ban fracking, but that he will look towards alternative fuel sources, perhaps in an effort to win key states such as Pennsylvania, Michigan, and Ohio (which he appears to have lost). One indication of how important this issue is in Pennsylvania can be gleaned from Vice Presidential Kamala Harris’s October 6, 2020 tweet:

While Biden and Harris must appeal to the Green New Deal part of the Democratic Party, they must also win key states such as Pennsylvania, which rely heavily on fracking. To what extent this is just politics, remains to be seen, but, given what appears to be a Repulican Senate, legislation to ban or limit fracking does not appear possible. This means this dangerous practice will continue. 

According to an article from Euronews, fracking poses a number of environmental hazards:

  • Methane leaks occur frequently to the tune of one million tons in Pennsylvania per year. The industry only reported 64,000 tons.
  • Methane and other gasses released through fracking are a problem because they trap twenty-five more times heat in the atmosphere than carbon dioxide.
  • Fracking pollutes the groundwater supply, which can cause cancer.

From a legal standpoint, the pollution issues pose millions in liability for companies that are not careful. Quite frankly, even if these companies are careful, the risk is quite high. Although not the result of fracking, Flynt, Michigan is a cautionary tale as to what happens when drinking water is contaminated. 

Fracking does supply jobs, upwards of ten million nationally, but, if Biden wins, his energy plan will likely aim to rejoin the Paris Agreement. It is unclear whether fracking as it stands in the United States would violate or otherwise cause problems with the agreement.

Biden has said he opposes fracking on public lands, but it is unclear what exactly this means. Even if Biden were to oppose fracking altogether, it is unlikely he could get a bill limiting or banning it  to pass the Senate due to the Republican majority. 

Fracking’s future remains uncertain in the United States, but it does appear it is not going anywhere anytime soon even after the votes are counted and a victor declared. 

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Amy Coney Barrett Unsure of Climate Change, a Scientific Fact

Washington (GGM) Analysis | October 16, 2020 by Michael Wells, Attorney @slnc01

On October 14, 2020, Trump Supreme Court nominee, Amy Coney Barrett, told Senator Kamala Harris (D-CA) she could not say whether climate change exists because it is a “politically contentious issue.” She also confessed to Senator John Kennedy (R-LA) she has no firm view on climate change. A skeptic might ask what her view on climate change has to do with cases that might come before her when she sits on the Supreme Court. Quite a bit, actually, especially in light of the lawsuits filed by a number of States’ Attorneys General against Exxon in the past few years.

The New York State Supreme Court in 2019 considered whether Exxon lied to investors about the company’s contribution to climate change and thus violated securities law. The Court ruled in Exxon’s favor, according to NPR, stating there was no evidence Exxon hid evidence of climate change.

This should signal alarm bells across the globe. Climate change exists, and of course the oil companies knew and know about it. It is the greatest danger any of us will face in our lifetimes.

Moreover, when juxtaposed with Barrett’s testimony, that she could not comment on climate change even to acknowledge it exists, it does not bode well for the environment. Given the lawsuits against Exxon and other energy giants, it stands to reason that climate change is a major legal issue.

Barrett claimed she is not a scientist, but one does not need to be a scientist to accept climate change as a fact. And, if it is accepted as a fact, then that certainly affects how she would consider a case.

It is entirely possible (likely even) that, if Biden prevails, the Justice Department will pursue these climate change cases, thereby forcing Barrett to rule on this issue.

Hypothetically speaking, assume the previous New York case made it to the Supreme Court, and at the heart of the case was whether an oil company was committing fraud by hiding climate change from investors. If Barrett were to believe climate change does not exist or was unsure it existed, then her view of fraud would be very different. Then she might rule in favor of the oil giant thus allowing them to continue to pollute, destroy the environment, and unleash a further parade of horribles, possibly another COVID-19 type pandemic. 

Again, this is just speculation, but is it not all speculation as to what kinds of cases Barrett will hear? It is a question or probability. She will hear cases about abortion, birth control, searches and seizures, voting rights, climate change, and myriad other issues none of us ever hear about. In all likelihood, she will hear a case on climate change and likely very soon. 

In fact, Minnesota Attorney General Keith Ellison filed a lawsuit on behalf of the citizens of Minnesota against Exxon, Koch Industries, and the American Petroleum Institute, in the Spring of 2020, alleging the fossil fuel industry knew the damage these fossil fuels would cause the environment.

The cases are coming. It is only a matter of time before a case goes before the Supreme Court. 

Climate change affects everyone on the planet, and it is a problem that everyone will need to work together to solve. We can do our part such as reducing our carbon footprint and also by planting trees. But we also need to be able to count on a nominee to the Supreme Court to accept this established science because, if she does not, what hope do any of us ever have that climate change will ever get under control?

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