Friday, August 27, 2010
Joseph Schaeffer, Pitt Law '12, recently attended a Coal Law Short Course sponsored by the Energy & Mineral Law Foundation and hosted at the West Virginia University College of Law...
The Coal Law Short Course covered all of these issues and more, and while the speakers uniformly represented coal companies and their interests, the emphasis was on diligent representation of the client. This often takes the form of strict adherence to legal and regulatory requirements, since the coal industry, as J. Thomas Lane (Bowles, Rice, McDavid, Graff & Love) pointed out, is the most regulated industry in America. Compliance with safety, employment, and environmental regulations can be costly, but it's good business, particularly when repeated violations can lead to the loss of crucial permits. For the coal industry, however, the most basic legal issue is securing the property right to mine the coal.
Almost universally, first year law students learn in property law that cuius est solum, eius est usque caelum et ad inferos (for whoever owns the soil, it is theirs up to Heaven and down to Hell). This Latin phrase describes the principle of complete ownership in fee simple, but in reality, property rights are often severed between two or more owners. In the context of coal, a single piece of property might be split between the owner of the surface rights and the owner of the mineral rights. In more complex cases, one party might own the surface rights, another the oil and gas rights, and yet another the coal rights. Property law in the coal industry can be labyrinthine. Mining operations extend across hundreds of properties, property owners might have severed property rights decades prior, and deeds can be wrong or go missing.
Consequently, a company that wants to develop a coal seam must ensure that it owns the mineral rights for the property it wishes to mine. Where the property is owned in fee simple, ascertaining ownership is easy, but it becomes more difficult where property rights are severed. Researching deeds can be such an extensive undertaking that lawyers often prioritize, ensuring property rights in the area where mining will begin before turning to those sections to be mined later.
Once a coal company has confirmed ownership of mineral rights, it must ensure the right of access to the coal. Generally, mineral rights include the right of access, whether explicitly defined in the lease or deed or implied. The West Virginia Supreme Court of Appeals held in Squires v. Lafferty, 95 W.Va. 307, 121 S.E. 90 (W. Va. 1924), that the mineral owner may act in a way that places a "reasonable burden" on the surface owner and is "fairly necessary" for the extraction of the mineral. In practice, this means that the mineral owner may take reasonable measures necessary for extracting the mineral, such as the construction of mine shafts. There are limits on these rights, however. If a mine operator constructs a coal cleaning facility on the property, its right to use the facility is implied only for coal mined from that property, not for coal transported from other mines. Also, surface mining rights are almost never implied. As Lane pointed out, absent explicit provisions for surface mining in the lease, surface mining will almost never pass the "reasonable burden" test, even where it is "fairly necessary" to access the minerals. As with every aspect of the law, though, there are exceptions. In Large v. Clinchfield Coal Co., the court implied surface mining rights where the land was rough and undeveloped, and reclamation processes would leave the land virtually undistinguishable from its prior condition. Courts have also been more willing to imply surface mining rights to leases signed when the parties could have "reasonably contemplated" the use of surface mining to extract the minerals.
While Surface Mining often receives the most attention from regulators, the press, and environmental groups, emerging technologies in carbon capture and storage (alternatively, carbon capture and sequestration) promise to keep property lawyers busy for years to come. Carbon capture and storage (CCS) is the injection of carbon dioxide, captured from coal-burning power plants, among other sources, into geological formations. This is analogous to the storage of oil and gas reserves, but is particularly attractive because of its environmental benefits (reduction in CO2 emissions) and potential for facilitating additional oil and gas extraction. On the property side, however, there are important questions as to who owns underground geological formations. Coal, oil, and gas companies would like to use empty mineral beds to sequester carbon, but there is an argument that mineral rights end when mining has ceased. Therefore, once mineral owners have extracted the coal, oil, or gas, they no longer have a right to the porous spaces for purposes of CCS.
CCS is still an emerging technology, and it is possible for the law to go either way on this issue. Previous cases involving the use of empty spaces have generally held that the mineral owner has a reasonable right of use. For instance, in Ross Coal Co. v. Cole, the US District Court held that a mine owner had the right to bring coal from one underground tract to another through underground passageways. However, it further held that the mine owner did not have the right to bring that coal to the surface through a mine shaft on property owned by the defendant Cole. With respect to CCS, the courts could either find use of porous spaces as attendant to the mineral owner's rights or as an interest which reverts back to the surface owner upon removal of mineral deposits.
Environmental groups and the coal industry have a mutual interest in resolving this uncertainty. The simple fact is that coal is still King in Appalachia, and it will continue to play a major role in America's energy future. CCS not only reduces the amount of greenhouse gases released into the atmosphere, but it can assist in extracting oil and gas reserves. When one considers that only 20% of all available oil is removed using current drilling technologies, this could be an environmentally sound method of increasing energy production in America. Environmentalists might argue that CCS technologies continue to rely on "dirty" rather than "clean" energy, and that money should be spent on renewable energy technologies. There's also the argument that sequestered carbon will be stored for hundreds or thousands of years, outlasting any company or regulatory scheme. These are all valid concerns, but they miss the forest for the trees. The shift to clean technology will not take place overnight, and even then, coal will remain an energy source so long as it's commercially viable. Until America has completely transitioned to renewable energy sources, it simply makes sense to mitigate the environmental impact of coal-fired power plants. Carbon sequestration does this, and it can provide good jobs to Americans at a cost that's spread across consumers (estimates place the cost of carbon sequestration at 17 cents per kW/h). However, companies won't invest in CCS facilities if the legal right to carbon sequestration is unknown. Congress and state governments need to take action and provide for a clear property right to porous spaces before decisions in the federal and state courts result in inconsistent laws across jurisdictions. While the coal industry would prefer to retain the right to porous spaces for purposes of carbon sequestration, nothing kills innovation like uncertainty, and any consistent standard would be an improvement.
It's important to act quickly. According to recent estimates, China is building two power stations every week, including one "clean" coal-fired plant each month. In contrast, the United States has only one integrated plant (power plant and CCS plant on same site), and it just opened in 2009. This is progress, but the United States needs to make a commitment to CCS technology. The knowledgebase is here, and American research centers, like the Natural Resource Analysis Center at WVU (full disclosure: former employer), have worked closely with Chinese companies on CCS technologies.
Coal is still a major part of America's energy supply and will continue to be so for the foreseeable future. It is good sense, both for business and the environment, to invest in coal capture technologies that mitigate environmental damage, create new jobs, and potentially aid in extraction of current oil and gas reserves. However, this won't happen until Congress and state legislatures resolve property law issues so as to resolve uncertainty and encourage investment.
Photos: Peter Schaeffer
Friday, August 13, 2010
Zana Berisha and Kutjesa Nezaj, both 2010 graduates of the Pitt Law LL.M. program, are Kosovar citizens and write about the International Court of Justice's recent decision on their country's Declaration of Independence...
To give context to the ICJ's July 22 opinion, we must discuss the events that led up to it. On February 17, 2008, the Kosovo Assembly approved the Declaration of Independence [PDF], which declared Kosovo an independent and sovereign state. The Declaration of Independence reflects the will of Kosovo's people for an independent, sovereign, democratic, secular, and multi-ethnic republic, guided by the principles of non-discrimination and equal protection under the law. Notably, it is also in full accord with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement [PDF].
In response to Kosovo's Declaration of Independence, Serbia filed a request [PDF] for an ICJ advisory opinion at the United Nations on August 15, 2008 on the question: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" On September 30, 2008, the United Nations General Assembly granted the Serbian request. All UN member states then had the right to submit written statements to the ICJ in which they provided their position on the legality of the approval of the Unilateral Declaration of Independence (UDI) by the Kosovo Assembly. By the submission deadline of April 17, 2009, 35 UN member states had submitted written statements. Public hearings in the ICJ began on December 1, 2009, and those states that had submitted written statements were permitted to orally present their positions. Kosovo and Serbia also submitted their statements and presented their oral arguments.
Oral proceedings ended on December 11, 2009, and until the issuance of the ICJ advisory opinion on July 22, 2010, no one was sure of what the court's opinion would be. Naturally, each involved party, particularly Kosovo and Serbia, hoped that the ICJ opinion would be in its favor. Based on previous ICJ rulings, however, most observers believed that this particular question would be decided neutrally, with the ICJ trying to satisfy the interests of both parties.
As a result, when ICJ President, Justice Hisashi Owada, read the Court's opinion [PDF] holding that the UDI does not violate international law, the involved parties were surprised that the Court ruled firmly in favor of Kosovo. For Kosovo, the ICJ opinion acknowledges that its declaration of independence is in accord with international norms. It is also symbolic of what Kosovo's people believe is a just and proper world opinion regarding their long struggle for freedom and independence. States that had already recognized Kosovo's independence welcomed the decision and called on other states to recognize her, as well. States that have withheld recognition now have legal justification to recognize Kosovo as an independent and sovereign state. After achieving the necessary number of recognitions, Kosovo will become a UN member state, and be eligible to join the European Union. To Kosovars, it was particularly important that the Justices upheld the UDI with 10 votes in favor and 4 against, representing more than a simple majority of the justices. The 10-4 decision represents a strong endorsement of Kosovo's legal right to independence from the highest international court.
Not all reactions to the ICJ's opinion were positive. States that had opposed Kosovo's independence maintained their position on non-recognition, arguing that the opinion is narrowly drawn and speaks only to the legality of the UDI rather than to its legal consequences, such as the creation of the new state. Serbian representatives at the ICJ appeared to be disappointed with the opinion's support of Kosovo's position, particularly given its specificity, and declared that Serbia will continue its current policy of treating Kosovo as Serbian territory.
For states that have not yet recognized Kosovo's independence, the ICJ's decision raises the troubling question of whether the case of Kosovo can be used as precedent for other regions seeking independence. However, the drafters of Kosovo's Declaration of Independence foresaw this concern, and the preamble of the UDI contains a provision stating that, due to the circumstances in which it found itself during the dissolution of Yugoslavia, Kosovo is a special case and should not serve as precedent for other peoples. Furthermore, Kosovo has been treated differently by the rest of the international community since the beginning of Yugoslavia's collapse and especially during the Kosovo conflict in 1998-1999.
As part of the former Yugoslav Federation (until 1989), Kosovo was a constituent part of Yugoslavia and had the right to self-determination and declaration of independence. In 1990, Serbia adopted a new constitution that fully abolished the autonomy of two Yugoslav provinces, Kosovo and Vojvodina, and as early as 1992, the Organization for Security and Cooperation in Europe (OSCE) verification mission in Kosovo voiced deep concern about escalating violence and human rights violations in that province. After the Federal Republic of Yugoslavia (SFRY) declined to give its consent to an extension of the OSCE mission's mandate, the United Nations Security Council expressed deep concern in Resolution 855 (1993) about the SFRY's position and called upon it to reconsider. Finally in March 1999, NATO became actively involved in attacking Serbian military targets in order to end the ongoing humanitarian crisis in Kosovo. We believe that these actions by the international community, and particularly NATO's involvement, give Kosovo the status of a special case. Moreover, it is our opinion that the ICJ will decide the legality of future declarations of indepence by taking into consideration the entire body of facts particular to each case.
We are of a similar opinion to Marko Attila Hoare, the Section Director for the European Neighborhood of the Henry Jackson Society, who argued that democratic societies should not fear "separatism," and that only those states aware of their non-democratic nature should fear that people living under their rule may wish to separate. For now we can only wait to observe how the world will react to future declarations of independence elsewhere. It is simply unpredictable.
As for Kosovo and its citizens, the day of the ICJ ruling will remain the day when Kosovo's people made a mark on international history. On July 22, 2010, the right of Kosovo's people to independence became internationally validated. Next to the Declaration of Independence on February 17, 2008, Kosovars will celebrate the day of the ICJ's ruling as the second most important day in Kosovo's history.
Friday, August 06, 2010
Emma Founds, Pitt Law '11, traveled to the International Criminal Tribunal for Rwanda (ICTR) through Pitt's Center for International Legal Education and reports on the ICTR's difficulty in prosecuting gender-based crimes, such as rape and sexual assault...
While the Tribunal failed to address the pervasive use of rape as a weapon of the Rwandan genocide during its first four years of existence, the indictment of a former bougmestre, or mayor, in Prosecutor v. Akayesu for inciting sexual violence drew praise from the international community. Akayesu was a groundbreaking decision that defined rape under international law and declared sexual violence and rape to be crimes against humanity. Additionally, Akayesu was the first decision to include rape and sexual violence in the definition of genocide. Despite being a major victory for women, the subsequent paucity of indictments for gendered crimes weakened Akeyasu's impact on the ICTR's prosecutions of sexual violence.
After Akayesu, the ICTR missed opportunities to obtain indictments for rape. In Prosecutor v. Kajelijeli the defendant was a bougmestre who allegedly conspired with subordinates to commit genocide, including the rape and assault of Tutsi women. Kajelijeli was convicted of genocide, but acquitted of the rape charges. Despite the likelihood that the rape charges would have been reinstated, the Prosecutor's Office missed the deadline for appeal.
A number of problems hindered the ICTR's prosecution of gender crimes. The Tribunal's location in Arusha, Tanzania, as well as the absence of widespread community outreach and education in Rwanda, meant that many Rwandan women were unaware of its existence and their right to redress. Further, stigmatization of rape in Rwanda meant that most women stated that they would report an incidence of sexual violence to a female investigator, but not to a male. However, until 1998, the ICTR employed only male investigators. Cultural nuances also hindered investigators, who had not been trained to recognize euphemisms and specific phrases used by Rwandan women to express sexual violence. For example, "he sat down with me" or "he married me," were used as euphemisms for rape. In some instances, words did not even exist in Kinyarwanda, one of Rwanda's official languages, to explain the sexual acts that had occurred.
Recent efforts by the Prosecutor's Office have led to an increase in the number of indictments that include rape allegations. As a result of Prosecutor Jallow's efforts, including motions to amend indictments to add rape charges, there have been 17 cases that include allegations of sexual violence. It remains to be seen how many of these indictments will prove successful, as they are currently in progress. However, a recent success came in the Muhimana [PDF] case, where the defendant was convicted of rape as an act of genocide and as a crime against humanity. The accused was found guilty of raping Tutsi women with the intent of degrading the entire Tutsi population. Most significantly, in charging Muhimana with rape as a crime against humanity, the court expanded the definition of rape as "non-consensual sexual intercourse," paying particular attention to the element of consent.
The court recognized that coercion was implicit when rape was prosecuted under theories of genocide, war crimes, and crimes against humanity. It held that the mechanical definition of rape, in which coercion was an element, did not reflect the realities of rape during times of conflict. The Muhimana court determined that the prosecution did not have to prove coercion, and that coercion would henceforth be presumed in cases of rape under international law. Although Muhimana is a victory for women's rights and enhances the ICTR's legacy, the repeated failure to prosecute rape and sexual assault limits the positive effects that these cases may have otherwise had. Further, the ICTR's impending closure limits opportunities to provide the actual victims with justice and redress.
To ensure that the recent changes in the ICTR positively impact victims, it is necessary to conduct community outreach and educate citizens about the ICTR's activities. By providing victims and witnesses with information about the outcomes of ICTR trials, citizens can share in the accomplishment of convicting perpetrators of genocide. Emphasizing the victim's role in achieving convictions would help to achieve redress for the wrongs committed.
Additionally, culturally-sensitive community education about rape, sexual violence, and associated stigma should be conducted. Such programs would inform communities that rape is not the victim's fault and could help change societal attitudes towards sexual violence. While it is likely that the success of community education programs will be limited due to the Tribunal's impending closure, at a minimum, these programs would provide victims of sexual violence with a source of comfort and reinforce that they were not at fault for the atrocities that they experienced.
It would be a tragedy if the ICTR were to fail to conduct community outreach and education about sexual violence in the final stages of its existence. While Prosecutor Jallow's measures to reinvigorate attention to gender crimes are laudable, the actual effect of such efforts will likely be limited due to the Tribunal's bleak track record in prosecuting sexual crimes. In addition, the ICTR's imminent closure may limit the effect of the Tribunal's renewed focus on crimes of sexual violence. While Muhimana is important for recognizing gendered crimes as violating international law, it will be of little meaning to Rwandan women unless community outreach is conducted. Despite the ICTR's poor track record in prosecuting gender crimes, it still has time to refocus its efforts and make a difference for victims of sexual violence in Rwanda. By educating Rwandans about sexual violence and informing communities about the ICTR's successes, the Tribunal will have reached its ultimate goal - providing justice and redress to the victims of the Rwandan genocide.
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