Will fracking be banned?

The following post was written by John Stodder, The Dolan Company National Affairs Correspondent. Dolan is the parent company of Michigan Lawyers Weekly.

The spectacle of protesters descending on New York’s capitol to pressure Gov. Andrew Cuomo to support a ban on fracking earlier this week has prompted various interested parties to revisit the question of what lies ahead for the controversial natural gas drilling technique.

The stakes are high. If fracking – the process of injecting a mixture of water, sand and chemicals to fracture deep deposits of shale, allowing trapped gases to be released and drilled – is an acceptable way to extract natural gas, then the U.S. and much of the world will have a bounty of fuel for generating electricity, heating and perhaps transportation, for generations.

But environmentalists fear that precious groundwater aquifers could be destroyed by fracking fluids and collateral releases of methane. In response, industry leaders say such fears are based on misinformation.

New York Times environmental blogger Andrew Revkin sees the “quieter corners” of what the environmental community is seeking. Instead of a ban on fracking, they say they are looking for regulations that will “give the greatest social and economic benefits with the least risk of environmental regrets.”  However, rhetoric at the rally suggests that people at the grassroots don’t want compromise.

Fracking has significance far beyond the borders of New YorkState. According to the U.S. Energy Information Administration, there are 5,760 trillion cubic feet of “technically recoverable” shale gas resources in 32 foreign countries, about 15 percent of which is in the U.S. There are immense deposits in a Northeastern belt running fromOhio throughPennsylvania to upstateNew York, inTexas,Oklahoma,Arkansas andLouisiana, inMichigan and in theRocky Mountains.

The reason many environmental organizations stop short of calling for a fracking ban is the nature of the end product, natural gas. Per BTU, the Environmental Protection Agency says natural gas has just over half the carbon dioxide emissions of coal, which it is increasingly displacing to produce electricity. With the stubbornly high costs of renewable power, some environmental leaders embrace natural gas as a transitional fuel to reduce CO2 emissions and slow the effects on climate.

But such concessions tend to be abandoned in the immediate vicinity of proposed fracking projects, as demonstrated by Monday’s rally, during which New York State Sen. Tony Avella, author of the fracking ban, shouted “Shame on you!” to environment groups that didn’t support him on the issue.

In the U.S., there are temporary fracking bans in New Jerseyand New York, but no permanent prohibitions. Bulgariahas voted to ban fracking and revoked a fracking permit it had granted to Chevron.France has also banned fracking despite its wealth of shale gas deposits.

In his account of a recent Duke University workshop on fracking, “the Green Grok,” a.k.a. Bill Chameides, dean of Duke’sNicholasSchool of the Environment, posed the key question for environmentalists: “Does fracking undermine drinking water?” His answer: “This is a huge question with only a tiny bit of data – enough to raise some questions, but not enough to provide definitive answers.”  

Meanwhile, the EPA began a study of the impact of fracking on drinking water in 2010. That study is still underway. The agency’s final word won’t necessarily be definitive and certainly won’t persuade everyone, but the matter will likely remain in a holding pattern until the study is finished.

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Michigan Lawyers Weekly wins three awards

 Michigan lawyers Weekly has won two first-place awards and one second-place award in its category in the 2011 Michigan Press Association (MPA) Better Newspaper Awards.

The paper won first place in the design category; with acknowledgment to production manager Maria Trejo and graphic designer Dawn Davis who design and build the paper.

First and second place were awarded in the Special Sections category for the 2010 Leaders in the Law and 2010 Up & Coming Lawyers sections, respectively. The entire staff was recognized for their various contributions to the sections.

“We at Michigan Lawyers Weekly are elated that the MPA has recognized our work in both graphic design and special sections,” said publisher Don Stemmermann. “This is the result of a combination of teamwork and the efforts of some very talented people. It is also part of a larger commitment to our readers to make sure they enjoy a top-quality product each and every week. “

Members of Colorado Newspaper Association reviewed 2,542 entries submitted by 102 Michigan newspapers.

COA reverses itself, allows videographer

After much wrangling and apparent confusion, the Michigan Court of Appeals has reversed itself and will allow a journalist to videotape oral arguments in a pot case.

After initially denying Eric VanDussen’s request to tape the proceedings in People v. Anderson, the COA finally came to the realzation that he actually IS a journalist.

Or maybe it was the State Supreme Court telling the COA that its excuse explanation that “fair administration of justice requires such action,” wasn’t good enough.

Or maybe it was Justice Markman’s comments on a different COA denial questioning that  same rationale — noting that every single Supreme Court oral argument is “accessible to the public on Michigan Government Television.”

Or maybe it ‘s the fact that an administrative file has been opened concerning the continued workability of Administrative Order 1989-1 — which allows courts to use excuses  give explanations like “fair administration of justice requires such action,” to deny access.

A big question is why the COA would deny media access in such a hotly debated issue as the medical marijuana law, which is in great need of scruitny and closely followed by all quarters.

Well, the smoke has been cleared from the room — at least for now.

Shirvell hits the big time: “The Daily Show”

Assistant Attorney General Andrew Shirvell, currently on a leave of absence, took time to visit with the good folks over at “The Daily Show” on Comedy Central.

And a good time was had by all.

Shirvell had yet another platform to spew his nasty rhetoric, while “The Daily Show” did what it does best, made Shirvell a parody of himself, and getting laughs in the process.

One does not get the sense that Shirvell is aware of the joke, but make your own decisions. See the video on Comedy Central.

Autopsy shouldn’t take two tries

Macomb County’s medical examiner has some explaining to do.

After Macomb County Medical Examiner Dr. Daniel Spitz reported that an autopsy of banker David Widlak showed an apparent cause of death as drowning, the Oakland County Medical Examiner then, at the request of Widlak’s family, took a look and found a gunshot wound at the base of the neck.

Initially, Spitz said Oakland found the wound because of digital X-rays, but no, it was a visual examination that found the wound, said Oakland County Medical Examiner L.J. Dragovic.

The X-rays were used after the exam found the wound and pinpointed bullet fragments in the body.

So, what’s the explanation? You almost expect foul play in a scenario like this and would expect that a thorough — very thorough — exam would be done to rule out any eventuality.

Isn’t that what autopsies are for, after all?

Now, any autopsy in Macomb County that may have affected someone badly is subject to scrutiny. Shades of the Detroit crime lab all over again.

OK, so there won’t be many exhumations to perform new autopsies, but had the family not paid for a second autopsy, the police might still be befuddled about the cause of death, and may not now be investigating this as a homicide.

This is yet another shining example of why the public’s view of government has eroded to cynical and skeptical at best.

For the latest, read The Detroit News story.

BofA loosening moratorium, continuing review

Bank of America will lift its self-imposed foreclosure moratorium in those states that require judicial review of foreclosures (Michigan is not one of those states).

The company said it will review its processes in the other 27 states (including Michigan), and has said it expects to have the issue resolved by the end of October.

In their own words, here is a statement by Dan Frahm, Bank of America spokesman:

We have reviewed our process for resubmission of foreclosure affidavits in the 23 judicial states with key stakeholders, including our largest investors. Accordingly, Bank of America today began the process of preparing foreclosure affidavits for submission in 102,000 foreclosure actions in which judgment is pending.

We anticipate that by Monday, Oct. 25, the first foreclosure affidavits will be resubmitted to the courts. Upon judgment, foreclosure dates will be set and Bank of America will resume foreclosure sales in such proceedings in the 23 judicial states.

We will continue to delay foreclosure sales in the remaining 27 states until our review is complete on a state by state basis. We anticipate over the course of this pause, less than 30,000 foreclosure sales will have been delayed. As was the case for our judicial state review, our initial assessment findings show the basis for our foreclosure decisions is accurate.

Our decision to review our process and later, to extend our review to all 50 states, has been an important step to give customers confidence they are being treated fairly.

Mortgage processes scrutinized, outcome uncertain

The investigation into the possible fraud by lender employees continues, but the question of whether it was outright fraud or simply shoddy paperwork has yet to be answered definitively.

Here is the latest update by reporter Ben Mook of The Daily Record in Maryland. The Daily Record is a sister paper to Michigan Lawyers Weekly, both part of The Dolan Company. 

As prosecutors and class-action attorneys grapple with the extent to which “robo-signed” affidavits were filed in foreclosure cases across the country, the nation’s judiciary will have to decide whether to handle them merely as instances of shoddy paperwork – or as frauds perpetrated on the court.
 Courts, state financial regulators and attorneys general in every state and the District of Columbia are looking into whether employees at banks and foreclosure processing firms signed court documents that had unverified or false information in an attempt to speed up the process. But, it is uncertain what the impact and response from the country’s judiciary will be.
 “If you’re in the process of litigating a case right now, it certainly could be a big deal,” Greg Hurly, an analyst with the National Center for State Courts, in Williamsburg, Va., said. “But, it’s hard to say what the course of action will be. It’s not something the courts saw coming down the pike.”
 All of the nation’s state attorneys general and 40 states’ banking regulators banded together last week to open an investigation into how widespread the robo-signing issue is. The banks being looked at have said the information in the affidavits is accurate and that it is a procedural mistake as opposed to fraud.
 “I think it is somewhere between a glitch and fraud,” said Kendall Coffey, a former U.S. Attorney for the Southern District of Florida who is now in private practice in Miami. “It is more than a paperwork glitch, but the standard for what a court would consider to be fraud is high. Without a factual discrepancy, many courts probably wouldn’t see it as a fraud on the court.”
 But Ohio Attorney General Richard Cordray is convinced at least one lender has acted fraudulently. He filed a lawsuit against GMAC Mortgage this month seeking $25,000 for each inaccurate file, claiming the bank was committing fraud under the state’s Consumer Sales Practices Act.
 “In this country, the courts have derived very specific rules for dealing with the process of removing someone from their home,” Cordray said. “Frankly, these financial institutions don’t seem to think they have to play by the same rules. I think it’s fraud, and it’s indefensible.”
 Bank of America said this month it was halting foreclosures and foreclosure sales nationwide. And last week, JPMorganChase and GMAC, which had already halted foreclosures in 23 states, agreed to expand their review of documents to all 50 states. But the banks are still only halting foreclosures in the original 23 states. Wells Fargo & Co. and PNC have said they would not halt foreclosures but would review documents.
 Bank of America, JPMorganChase and GMAC are the three institutions being targeted initially by the attorneys general investigation.
 In Maryland, the state judiciary’s Standing Committee on Rules of Practice and Procedure is set to adopt a proposed rule letting judges reject an affidavit if he or she has reason to suspect it was not personally signed by the attorney. Judges will also be able to ask the attorney to explain why the foreclosure proceeding should not be dismissed. The rule, which could be adopted Tuesday by the Court of Appeals, would also call for disciplinary action for an attorney who willfully lets someone else sign their name to an affidavit.
 “The judges are alarmed at this development, which is an assault on the integrity of the judicial process,” retired Judge Alan M. Wilner, who chairs the committee, wrote in an introduction to the proposal.
 Whether courts find evidence of fraud, many agree that the instances of robo-signing have dealt a blow to the integrity of the judiciary system. Patrick B. Bauer, a professor at the University of Iowa College of Law, said the wide scale filing of false affidavits is sure to have major repercussions.
 “If people don’t tell the truth, especially in these court filings, it can really undermine the integrity of the whole system,” Bauer said. “It is a question of accuracy, or correctness, in a matter as consequential as someone possibly losing their home.”
 In states like Ohio, Pennsylvania and Florida, where courts hear foreclosure cases, the person signs an affidavit swearing under oath that all of the contents had been reviewed and are accurate. With the robo-signing scandal, the accusations are that the affidavits were signed with little attention, if any, paid to the contents, or were signed by others.
 “Effectively the affidavit, in judicial review states, is the equivalent of eyewitness testimony and, with robo-signing; it’s tantamount to having an imposter witness,” Coffey said. “It is very much an integrity issue and integrity is indispensable to the process.”