Title VII of the Civil Rights Act of 1964: Protecting Employees from Race, Sex, Religion, and National Origin Discrimination

The Civil Rights Act of 1964 is a federal law enacted to prevent discrimination based on an individual’s race, color, sex, religion, or national origin. Title VII of the Civil Rights Act of the 1964 protects individuals against discrimination in employment. Under Title VII, an employer may not discriminate against employees or job applicants based on characteristics such as race, color, sex, religion, or national origin. Title VII also prohibits employers from retaliating against employees who participate in complaints or investigations of discrimination, or who otherwise oppose various kinds of discrimination. These provisions apply to all employers in both the private and public sectors, including federal, state, and local governments, that employ 15 or more individuals. In general, Title VII protects employees from discrimination or retaliation in a wide variety of employment processes and circumstances, including:

Assigning work
Measuring performance
Providing benefits

Under Title VII, covered employees or job applicants cannot cannot be treated differently based on their race, religion, sex, or national origin. Additionally, the law provides that employers cannot discriminate against other employees because of their association with co-workers who may be discriminated against based on these protected characteristics. An employer’s policies and practices may be considered discriminatory under Title VII based on disparate treatment or disparate impact. Disparate treatment typically involves an employer’s intentional discrimination against an employee based on his or her protected characteristics. Disparate impact, by contrast, does not necessarily require discriminatory intent. Rather, under a disparate impact theory, an employer’s policy or practice might run afoul of Title VII if it disproportionately harms employees of certain gender or race (for example) as compared to other employees of a different gender or race — regardless of whether the employer intended the policy or practice to have a discriminatory effect.

Title VII is one of several laws enforced by the Equal Employment Opportunity Commission (EEOC). The EEOC is a government agency responsible for enforcing and investigating potential violations of federal laws against discrimination in the workplace. These laws include not only Title VII of the Civil Rights Act, but also the Age Discrimination in Employment Act of 1967 (ADEA), the Equal Pay Act of 1963 (EPA), Sections 501 and 505 of the Rehabilitation Act of 1973, Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), and Titles I and V of the Americans with Disabilities Act of 1990 (ADA). In general, laws enforced by the EEOC make it illegal for an employer to harass or discriminate against an employee or applicant based on race, color, sex, pregnancy, religion, national origin, age, disability, or genetic information. Additionally, these laws prohibit employers from discriminating against employees who file charges of discrimination with the EEOC or who participate in a discrimination lawsuit or investigation.

An employee who believes his or her rights under Title VII have been violated must file a charge of discrimination with the EEOC in order to later pursue a Title VII claim in court. Once a charge is filed with the EEOC, the agency is authorized to investigate the complaint against the employer. As noted above, Title VII prohibits employers from retaliating against employees or applicants because they have filed a charge with the EEOC, participated in the investigation of a charge, or otherwise opposed conduct made unlawful by Title VII. If after its investigation the agency finds the employer engaged in illegal discrimination, it may attempt to settle the charge between the employee and employer. If unable to settle such a charge, the EEOC, in an effort to vindicate and protect the rights of the employee or employees, may consider filing a lawsuit in court on their behalf. However, given the agency’s large workload and limited resources, most charges of discrimination — regardless of their merit — do not result in lawsuits filed by EEOC. More frequently, after an investigation, the EEOC terminates its investigation and issues a notice giving the employee the right to pursue a lawsuit in court. After receiving the notice of suit rights, the employee has 90 days within which to file a lawsuit against his or her employer regarding the discrimination at issue in the charge. While Federal employees and job applicants have similar protections to the protections afforded private and state or local government employees, federal employees and applicants have a different complaint process.


This article was originally published on timcoffieldattorney.net 

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Encino Motorcars v. Navarro (SCOTUS, April 2, 2018)

Encino Motorcars v. Navarro (SCt. Case No. 16-1362) (Encino II) held that service advisors at car dealerships are exempt from the provisions of the Fair Labor Standards Act (FLSA) requiring employers to pay overtime to employees who work more than forty hours in a week. Enacted in 1938, the FLSA is the United States labor law that created the employee right to minimum wage, and overtime pay (generally, one and a half times the employee’s regular hourly rate) for employees who work over forty hours a week. The FLSA, however, contains numerous exemptions — categories of employees who are not entitled to receive overtime pay under the FLSA based on their job duties. These employees are referred to as “exempt” from the right to receive overtime pay.

One such provision, codified at 29 U.S.C. §213(b)(10)(A), provides an exemption to the overtime-pay requirement for “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements.” The plaintiff employee Navarro in Encino Motorcars worked for a car dealership as a service advisor. Navarro sued the dealership on behalf of himself and other service advisors, arguing that the dealership violated the FLSA by failing to pay them overtime wages. The primary question for the Supreme Court was whether the FLSA entitled service advisors to overtime pay, or whether the job of service advisor fell into the exemption for “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles[.]”

At the trial court level, the district court had dismissed the suit on the grounds that service advisors were exempt and therefore were not entitled to overtime pay. The employees appealed that decision, and the Court of Appeals for the Ninth Circuit reversed the trial court, finding that the exemption for “salesman … primarily engaged in selling or servicing automobiles” did not apply to service advisors at car dealerships. In a 5-4 decision, the Supreme Court reversed the Ninth Circuit and held that the service advisors were exempt and therefore not entitled to overtime pay. Justice Thomas wrote the majority opinion. Justice Ginsberg wrote the dissent.

The Court first determined that a service advisor is a “salesman” for the purposes of the exemption at issue, because the ordinary meaning of “salesman” is someone who sells goods or services, and service advisors “sell [customers] services for their vehicles[.]” Encino II at 6 (cite to earlier decision omitted).

Next, the Court held that service advisors are also “primarily engaged in . . . servicing automobiles.” Thomas’ reasoning here was that “servicing” can mean either “the action of maintaining or repairing a motor vehicle” or “[t]he action of providing a service,” and service advisors satisfy both definitions because they are integral to the servicing process. Encino II at 6-7. Service advisors meet customers and listen to their concerns about their cars; suggest repair and maintenance services; sell new or replacement parts; record service orders; follow up with customers as the services are performed; and explain the repair and maintenance work being performed. Encino II at 6-7 (quotes omitted). Therefore, service advisors are primarily engaged in servicing automobiles.

In reaching this conclusion, Thomas rejected the Ninth Circuit’s approach to interpreting the word “or” in the language of the exemption (“any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles”). The Ninth Circuit had applied the distributive method — matching “salesman” with “selling” and “partsman [and] mechanic” with “servicing”— and therefore determined that the exemption does not apply to “salesm[e]n . . . primarily engaged in . . . servicing automobiles.” The Supreme Court disagreed with that approach, observing that the word “or,” is “almost always disjunctive” — meaning, in this context of this language, that “salesman” could be matched with “servicing.” Encino II at 7-9 (citing United States v. Woods, 571 U. S. 31, 45.) The Court also pointed out that the distributive use of “or” worked best when one-to-one matching was possible and did not make as much sense when trying to pair three terms (“salesman, partsman, or mechanic”) with two terms (“selling” or “servicing”). Therefore, the Court applied the disjunctive meaning of “or.” By using “or” to join “selling” and “servicing”, Thomas determined that the exemption covers a salesman primarily engaged in either selling or servicing. This included service advisors, which the Court had concluded were salesmen primarily engaged in servicing automobiles. Encino II at 7-9.

Thomas also discussed the Ninth Circuit’s application of the long-standing principle in FLSA jurisprudence that exemptions should be narrowly construed. Thomas rejected that approach, reasoning that because the FLSA “gives no textual indication that its exemptions should be construed narrowly, there is no reason to give them anything other than a fair (rather than a ‘narrow’) interpretation.” Encino II at 9 (citing and quoting Scalia, Reading Law, at 363.)

In sum, this case determined that service advisors at auto dealerships are exempt from the overtime-pay requirement, and departed from the Court’s long-standing principle that FLSA exemptions should be construed narrowly.

This article was originally published on timcoffieldattorney.com

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Title I of the Americans with Disabilities Act: Protections for Employees with Disabilities

Enacted in 1990, the Americans with Disabilities Act is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life. This includes jobs, schools, transportation, and all public and private places that are open to the general public. Similar to laws that prohibit discrimination based on race, gender, or religion, the ADA’s purpose is to ensure that people with disabilities have the same rights and opportunities as those who do not. This protects disabled individuals by guaranteeing equal opportunities in public accommodations, transportation, state and local government services, telecommunications, and employment. The ADA is divided into five titles. The first four titles each address a different sphere of public life, and the fifth section contains laws that apply generally to the first four, including protections against retaliation for people who seek to exercise their rights under the ADA:

Title I: Equal Employment Opportunities for Individuals With Disabilities;
Title II: Nondiscrimination on the Basis of Disability in State and Local Government Services;
Title III: Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities;
Title IV: Telecommunications;
Title V: Miscellaneous, including protections against retaliation.

Title I of the ADA is intended to ensure disabled individuals have access to the same employment opportunities as people without disabilities. This part of the law is enforced by the Equal Employment Opportunity Commission. Among other things, this part of the law requires employers to provide reasonable accommodations to assist employees that qualify as disabled under the ADA. For example, an employer may need to provide a deaf employee with access to sign language interpreters, provide ramps for employees who use wheelchairs, or under some circumstances provide disabled employees with ergonomic desks or modified workstations. An employer should engage in an interactive process with its employees who have disabilities, to work together to identify and implement effective accommodations for their respective disabilities. The interactive process is ongoing. It may involve a series of meetings over time and oftentimes includes considering input from an employee’s physician. Employees should be able to perform the essential functions of their jobs with the required modifications or adjustments.

Title I of the ADA also prohibits employers from discharging, demoting, or denying advancement opportunities to disabled employees on the basis of their disabilities. An employee who believes they have been subjected to this form of disability discrimination may bring a lawsuit against his or her employer for not complying with the ADA (after first filing a charge of discrimination with the proper EEOC field office). Employees who seek to enforce in court their rights under the ADA to be free from disability-based employment discrimination generally must prove three elements:

The individual’s impairment must qualify as a “disability” within the meaning of the ADA. The ADA defines “disability” to include (1) any physical or mental impairment that substantially limits one or more major life activities, (2) a person who has a history or record of such an impairment, or (3) a person who is perceived by others as having such an impairment. To establish if an individual’s particular impairment substantially limits major life activities, a court will consider a variety of factors, including the nature of impairment and its severity, how long the individual has been dealing with the impairment, and the actual or expected long-term impact.

The individual is qualified and able to perform the essential functions of his or her job with or without reasonable accommodations. This simply means the individual needs to be able to do his or her job, and perform the duties that job entails, once the employer has made the necessary reasonable accommodations for the employee’s disability.

The individual has suffered an adverse employment action on the basis of his or her disability. An adverse employment action can include a termination, a demotion, the denial of a promotion, or other similar action by the employer that denies the employee advancement opportunities in the company. An adverse employment action “on the basis of disability” can mean a variety of things, depending on the circumstances. For example, it can mean the employer at least partly did not want to keep or advance the employee because of his or her disability, record of disabilities, or perceive disability. Under certain circumstances, it can also mean the employer failed to provide reasonable accommodations for an employee’s known disability, then terminated or denied opportunities to the employee because of perceived performance deficiencies that could have been avoided if the employer had reasonably accommodated the employee’s disability. For example, if an employer fails to provide a deaf employee with reasonable access to sign language interpreters, then fires the employee for not communicating effectively with others at work who do not know sign language, that might constitute a wrongful termination under the ADA.

In short, Title I of the ADA seeks to ensure that individuals with disabilities have equal access to employment opportunities as employees without disabilities. Under certain circumstances, employees who feel they have been denied reasonable accommodations at work, or otherwise mistreated by an employer due to a disability, may take legal action to address the issue and improve the equality of employment opportunities for themselves and other employees with disabilities.

This article was originally published on timcoffieldattorney.net

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.  

Epic Systems Corp v. Lewis (SCOTUS, May 21, 2018)

Epic Systems Corp v. Lewis (SCt. Case No. 16-285) highlights the tension between a pair of federal laws, The National Labor Relations Act (NLRA) and the Federal Arbitration Act (FAA), concerning whether an employment contract can legally bar employees from engaging in collective action to enforce their rights in court. The Federal Arbitration Act (“FAA”) was enacted in 1925 to allow parties to contractually agree to resolve disputes through arbitration, rather than through the judicial system. The following decade Congress enacted The National Labor Relations Act of 1935 (“NLRA”), which protects the rights of employees to, among other things, engage in collective action to protect their legal rights. Employees protected under the NLRA are able to join together and take collective action to counter unfair employment practices and improve their working conditions and wages.

In Epic Systems, the employer distributed via email a new policy requiring employees to sign an arbitration agreement. The agreement, in short, stated that employees bringing claims for alleged violations of wage-and-hour or other laws could only do so through individual arbitration. This agreement further included a provision designed to waive the employees’ “rights to participate in any class, collective, or representative proceeding.” The agreement was to be recognized and signed by its employees, including Lewis, a tech writer for the company. Lewis did acknowledge and sign the agreement.

The following year, in February of 2015, Lewis filed a suit against Epic Systems. The suit was filed as a purported collective action, involving other tech writers employed at Epic Systems. The collective action alleged Epic Systems failed to follow The Fair Labor Standards Act of 1938, in addition to a Wisconsin law related to employees’ rights to receive overtime pay. The suit was filed in the United States District Court for the Western District of Wisconsin. Epic Systems moved to dismiss the suit, arguing that the arbitration agreement signed by Lewis prevented him from bringing or participating in collective actions, and required him to address any claims through individual arbitration. The District Court denied Epic Systems’ motion, finding Lewis’ action was protected under section 7 of the NLRA, and stating that the 2014 arbitration agreement and collective action waiver violated those terms.

Epic Systems appealed the District Court’s decision to the Court of Appeals for the Seventh Circuit, arguing the District Court erred by finding that the FAA did not control and that the collective action waiver was not valid. The Seventh Circuit agreed with the District Court, however, finding that Epic Systems’ collective action waiver violated the terms of the NLRA. Epic Systems petitioned to the Supreme Court of the United States for a writ of certiorari, following a split of authority among the circuit courts of appeal relating to the tension between respective provisions of the NLRA and FAA. In January 2017, the Supreme Court consolidated Epic Systems with two other similar cases and agreed to hear the oral arguments of all three cases.

On May 21, 2018, the Supreme Court issued a 5-4 decision ruling that individual arbitration agreements and collective action waivers are enforceable under the FAA, and that neither the NLRA or the FAA’s savings clause requires a different conclusion.


This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.  

This article was originally published on timcoffieldattorney.com

Digging through NRC report on VA uranium mining

For the full report, go here.
  • Of the sites in Virginia explored so far, only the Coles Hill uranium deposit appears to have the potential to be economically viable. Extensive site-specific tests would be required to determine the most appropriate mining and processing methods for each uranium deposit. Geological exploration carried out to date indicates that underground mining or open-pit mining are the probable methods of extraction for uranium deposits in Virginia.
  • Protracted exposure of workers in uranium mining and processing facilities to radon decay products generally would be expected to represent the greatest radiation-related health risk. Exposure to radon is associated with lung cancer, a link that has been most clearly established in uranium miners exposed to radon. Cigarette smoking increases the risk.
  • Other potential health risks for mine workers apply to any type of hard rock mining or other large-scale industrial or construction activity. The inhalation of silica dust and diesel exhaust, to which miners in general can be exposed, increases the risk of lung cancer and silicosis.
  • Off-site releases of radionuclides could present some risk of radiation exposure to the general public, depending on how the release occurred and the density of the nearby population.
  • Uranium tailings, the solid or semi-solid waste left after processing, present potential sources of radioactive contamination for thousands of years. Modern tailings management facilities are designed to prevent the release of radioactive contaminants for at least 200 years, but longer-term monitoring results from modern tailings facilities are not yet available.
  • Virginia is susceptible to extreme natural events, including heavy precipitation and earthquakes, and any uranium mining and/or processing facility would need to take the possibility of such events into consideration during planning.
  • Three over-arching best practices should be guiding principles if uranium mining were to be permitted: the need to plan at the outset of the project for the complete life cycle of mining, processing, and reclamation; the need to engage and retain qualified experts familiar with internationally accepted best practices for all aspects of a project; and the need to encourage meaningful and timely public participation throughout the life cycle of a project, beginning at the earliest stages.
  • At a more specific level, there are numerous internationally accepted best practices that would contribute to operational and regulatory planning for uranium mining in Virginia. These cover the health, environmental, and regulatory impacts of uranium mining.

Parody cf. satire

In Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the Supreme Court distinguished between “parody” and “satire” as follows:

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. See, e. g.Fisher v. Deessupra, at 437; MCA, Inc. v.Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

(Footnotes omitted.) So: a parody comments on the work itself; a satire uses the work to comment on something else. The ruling in last year’s Don Henley v. Chuck DeVore copyright suit is closely on point. There, Senate candidate DeVore (R-CA) took Henley’s songs, and subbed in his own lyrics, which attacked Sen. Barbara Boxer (D) and President Obama (D). The court (again, tentatively), rejected DeVore’s argument that the use of Henley’s songs constituted parody, and concluded that the use of the entire compositions was not fair. (Campbell doesn’t exactly say, “If it’s a parody, it’s fair use; if it’s a satire, it isn’t.” But that’s how such cases usually play out.)

All the high fives money can buy

As much as the natural gas industry complains about the costs of environmental compliance, it spends a great deal of time and money fighting to keep hydraulic fracking unregulated, and its claims of safety and economic prosperity unquestioned. Their campaign to put a happy face on this harmful technology is designed to stifle the growing movement to ban fracking across the country: to date, at least 76 local and state governments have passed laws banning the practice within their borders.

As Wenonah Hauter over at Huff Post observed, the industry spent over $145 million lobbying Washington in 2010, making it one of the top five industries spending big money to buy influence — and it seems to be working: In January 2011, bipartisan congressional members of the Natural Gas Caucus opposed proposed U.S. Department of Interior rules to disclose fracking chemicals used on public lands; this caucus’ 83 members received a combined $1,742,572 in campaign contributions from the oil and gas industry between 2009 and 2010, according to a Propublica investigation.

By now, you may have seen an industry ad like this, talking up gas as a means of American energy independence and prosperity, but what they don’t say is that there are plans to export it to China and India — and profits too, as these companies are increasingly multinational or even foreign-owned.

Their hired PR guns also come out blazing when unfavorable coverage of the industry erupts, as it did in the New York Times, when reporter Ian Urbina exposed industry insider emails questioning the favorable forecasts the industry has put out on fracking — one insider going so far as calling drilling leases “Ponzi schemes.” As Politico reports, John Hanger, once secretary of the Pennsylvania Department of Environmental Protection and now an environmental consultant, compared Urbina to Judith Miller and Jayson Blair, saying “This is not their [the Times‘] first rogue reporter.”

The Marcellus Shale Coalition (whose members have a financial stake in fracking the Marcellus shale) spent a total of $1.8 million on its PR initiatives in 2009, while the Independent Petroleum Association of America (IPAA) has an $8 million budget, according to the Pittsburgh Tribune-Review. One of IPAA’s initiatives is Energy in Depth, a web site devoted to debunking the documentaryGasland.

Now, the American Petroleum Institute (API) is poised to spend $20 million on an “advocacy campaign”. We don’t know for sure, but given the industry’s difficulties in defending fracking over recent months, we bet this money will go towards a campaign that will continue to spin fracking as a safe means of achieving prosperity and energy security.

How does the industry keep contamination under wraps? It pays settlement fees to families whose water has been contaminated by shale gas drilling — fees that hinge on the landowner signing a confidentiality agreement to keep details about the case from government agencies, the media and the public.

As highlighted in a recent New York Times article, the industry pays to keep details of the public safety problems associated with gas drilling hidden from government agencies that could do something to regulate it. This has been happening for decades, and it allows the industry to continue using one of its most disingenuous talking points: that there have been no documented cases of contamination from gas drilling.

In May, New York Attorney General Eric T. Schneiderman sued federal agencies to provide a full environmental review of fracking in the Delaware River Basin since it could affect the drinking water of nine million New Yorkers.

API, IPAA and the US Oil & Gas Association intervened in the case, arguing that its members would be adversely affected. But two of the 10 federal agencies sued by Schneiderman have actually supported further review of fracking — the National Park Service and the U.S. Fish and Wildlife Service.

Recently, Wellsburg, West Virginia rescinded a ban on shale gas drilling. It appears that one reason for this might be that Chesapeake Energy recently rescinded its funding for the community’s school music program in direct response to the ban. $30,000 might not seem like a lot, but for a struggling rural school system, it certainly is no small potatoes.

A more straightforward example of how the industry buys influence beyond Washington is in New York State, where the oil and gas industry spent $1,204,567 lobbying against fracking moratorium bills in 2010, outspending groups supporting the bills 4 to 1.

Spending big money to influence policy in New York paid off for the industry. The New York Department of Environmental Conservation released a report early last month suggesting that 85 percent of the Marcellus Shale be opened up to fracking, and Governor Andrew Cuomo appears to be on board.

The industry hires academic shills who prepare reports that shine a rosy light on the industry — while glossing over serious concerns. In June, an MIT report titled, “The Future of Natural Gas” was funded by the oil and gas industry. As they write on their site:

In FY 2010, MIT’s industry-sponsored research totaled $111 million. More than 800 firms now work with MIT, both in Institute-wide programs such as the Industrial Liaison Program and the MIT Energy Initiative and in smaller collaborations… More than 180 companies partner with the program to improve their access to MIT and advance their research agendas [emphasis added].

Penn State also recently released a pro-fracking report funded by the Marcellus Shale Coalition. Media Matters for America recently took the New York Post to task for citing the report in an editorial supporting fracking, without mentioning the industry group that actually paid for it.

This happens all too often, and is a way for the industry to launder credibility for its position through third-party academic institutions.

At a June hearing in Washington, Pennsylvania, numerous landowners who had leased their land to gas drillers appeared at a hearing to talk about the benefits of fracking. But it’s what got them there that’s the interesting story: they were offered Pirates tickets, in addition to hotel rooms and travel expenses. That was one way the industry assured that the spaces at the hearing would be filled with pro-drilling voices.

It’s not much better in Washington, D.C. At the July 13 meeting of the Natural Gas Subcommittee of the Secretary of Energy, Advisory Board Safety on Shale Gas Development, the industry overwhelmed the proceedings (click here to see testimony.)

Giant Goldfish Threaten Michigan

In a new phase of the decades-long feud over the degradation of the Great Lakes, Michigan has sued Illinois again, this time over Michigan’s worries about “the threatened invasion of the Great Lakes by injurious fish species — resulting from the Lake Michigan diversion project created and as now maintained by Illinois, the [Metropolitan Water Reclamation District of Greater Chicago] District, and the [U.S. Army] Corps [of Engineers].” As an Original lawsuit, the case will be tried directly in the Supreme Court, if the Justices agree to allow it.

A fact sheet describing the background of the new fish controversy is here. A news release from the Michigan attorney general’s office is here.  The text of a motion for a preliminary injunction is here.  The lawsuit itself — technically, a motion to reopen a 1967  Supreme Court decree (amended in 1980) and to issue a new ruling on the fish migration question – can be found here. A 142-page appendix is here.

Michigan is one of several upper Midwest states that have returned to the Court several times to challenge the state of Illinois’ and Chicago’s dealings with sewage problems in waterways in and around the city. Michigan’s lawsuit in 1922 was designated No. 2 Original.  It has kept that number through reopenings in later years.  Whether it retains that number with its new challenge has not yet been determined by the Court.  (The Court has a new numbering system now for Original cases, with the numbers running serially rather than by Term.)

Beginning with the construction in the 1890s of a diversion canal, designed to keep Chicago’s sewage from flowing into Lake Michigan and contaminating the city’s water supply, the controversy over water flows in the upper Midwest has led to decrees by the Supreme Court in 1930, 1933, 1956, 1967 and 1980.  Illinois’ neighbors have complained that the diversion efforts have reduced their own water supplies, and have led to pollution of their waterways.

After the Court restricted the amounts of diverted water, it has allowed Illinois’ neighboring states to return if they had new or additional complaints.  Michigan is relying upon that continuing jurisdiction as a basis for its new lawsuit.  That is why its case is styled a plea for reopening an existing decree, with supplemental relief focused entirely on creating temporary and longer-term barriers to the migration of Asian carp species into Lake Michigan through connecting waterways.

The state’s basic new plea is that the Court declare Illinois and its partners in the diversion project to be creating a “public nuisance” by raising the risk that bighead and silver carp will make their way into the Great Lakes.  The state wants a permanent Court order requiring Illinois, Chicago’s sanitary district, and the Corps of Engineers to modify control facilities to ensure that the carp do not migrate into Lake Michigan, in particular.

Michigan’s lawsuit notes that federal wildlife officials have concluded that Asian carp, imported in the 1960s to control plant growth in fish farms along the Mississippi River, reproduce rapidly and have huge appetites that consume aquatic food that would normally be eaten by local species of fish.  They thus pose a significant risk, according to Michigan, to its fishing industry and to sport fishing.

Under the Court’s Rules, Illinois, the Chicago sanitary district, and the Corps of Engineers have 60 days to file opposition to the new challenge.

Monkey self-portrait copyright monkey

Techdirt asks: Can A Monkey License Its Copyrights To A News Agency? and David Post explains why the answer must be yes.   Apparently, David Slater, a well-known nature photographer, left his camera on the ground in an Indonesian national park, and a macaque monkey walked over and snapped a bunch of photos, including this (remarkable!) self-portrait:


Nice bokeh.  Two of the photos in the set of monkey self-portraits bear a copyright notice: “Copyright Caters News Service.” Raising the odd but critical question: who assigned the copyright to the News Service? Slater? Maybe, but that can’t be a valid assignment, for the simple reason that he doesn’t own the copyright just because his camera was used to snap the photo.

That leaves the monkey.

The question is not an entirely ridiculous one — well, OK, it is a ridiculous one, but it is at least closely related to some very difficult and interesting copyright questions about the requirement (if there is one) that human creativity is a requirement for copyright to exist in a work of authorship — questions that come up in contexts ranging from the ridiculous (creations by psychics ostensibly “channeling” voices from beyond the grave, animal creations — monkey photos, elephant drawings, chimpanzee-created music) to the sublime (the copyright status of works “authored” by computer programs or Artifical Intelligence engines). Post’s friend and colleague Annemarie Bridy recently completed a very interesting draft of an article exploring these issues, soon to be published, entitled “Coding Creativity: Copyright and the Artificially Intelligent Author”).


Don’t Need No Roads

Chest bump to the Tenth Circuit, chest bump to the 2001 roadless rule.  The biggest remaining swath of unprotected wild America is now, finally, protected.

The appeals court reinstated the rule, which blocks logging and road construction on 49 million acres of public forests. In a mammoth 120 page opinion, the court overturned a Wyoming federal court’s decision in 2008 that the rule illegally usurped congressional power to designate wilderness.The decision resolves a federal court split, but raises questions about Colorado’s proposed state-specific approach to managing national forests.

Clinton famously passed the rule in final hours of his administration, and the Bush administration spent eight years trying to unpass it. Hundreds of communities around the country get their water from roadless areas. Roadless forests are a source of clean water. They are often where our imperiled wildlife clings for survival. And, they are where millions of people go to recreate and experience wild country.

Colorado officials, you can be sure, are reviewing the decision carefully. Nothing in the decision appears to prohibit state-specific rules for protecting national forests. And Colorado natural resources officials have developed their own, nuanced, tiered-protection plan for protecting 4.2 million acres of roadless national forest in the state.

It would protect only about 13 percent of the 4.4 million acres of national forest in Colorado protected by the national rule. The Colorado proposal would make exceptions for mining, logging and ski-area expansion.

Today’s federal appeals court decision “does not preclude further litigation, which could continue to create uncertainty,” King said.

State officials, he said, will keep working to finalize the state-specific rule.

If the Tenth Circuit Court of Appeals had backed the 2008 Wyoming federal court’s ruling, federal land managers’ power to prevent logging and road-building would have been limited.

Attorneys for Wyoming and Colorado Mining Association argued that the Forest Service was trying to create de facto wilderness areas. The Wyoming court agreed with them, saying the roadless rule violated the 1964 Wilderness Act that requires congressional actions to create wilderness.

But the federal appeals judges reversed that, finding that the Wyoming court abused judicial discretion.

Colorado Mining Association President Stuart Sanderson said the industry is “disappointed with the ruling” and is “carefully evaluating next steps.” The decision “does not reflect a practical understanding of the impact that the Clinton Rule will have upon mining jobs in Colorado and the United States,” Sanderson said.

Practically speaking, without the roadless rule, protection of these national forests would be left to a patchwork management system that in the past resulted in millions of acres lost to logging, drilling and other industrial development. When Clinton officials in 2001 issued the Roadless Area Conservation Rule, it was designed to protect nearly 60 million acres, or about a third of the undeveloped U.S. Forest Service lands.

Bush administration officials in 2005 tried to replace that rule with a state-based approach to managing forests.

In 2009, the Ninth Circuit Court of Appeals in California upheld a lower court decision to reinstate the roadless rule for the majority of roadless areas. Obama administration officials then expressed support for a national rule and asked the Tenth Circuit Court of Appeals to uphold the national rule.