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Sunday, January 25, 2015

Green groups can't sue US Export Import Bank over coal loans. DC Fed. judge says they lack standing. ExIm Bank Chair is Obama appointee-Courthouse News

Export Import Bank Chairman Hochberg is an Obama appointee.
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1/23/2015, "Greens Can't Sue ExIm Bank for Coal Loan," Rebekah Kearn, courthousenews.com


"The U.S. Export-Import Bank need not face claims that a $90 million loan guarantee to a coal company will damage the environment and threaten public health, a federal judge ruled Wednesday.
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Chesapeake Climate Action Network, the Center for International Environmental Law and four other environmental groups sued in July 2013 , claiming that the bank and its Chairman Fred P. Hochbert authorized a 3-year, $100 million loan to Xcoal Energy and Resources from PNC Bank without conducting environmental analysis required under the National Environmental Policy Act.

The loan enabled Xcoal to mine $1 billion worth of coal from mines in Appalachia, transport it by rail to ports in Baltimore and Hampton Roads, Va., and sell it to overseas customers.
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The plaintiffs claimed that the loan deal would pollute the air and water with toxic coal dust, aggravating respiratory conditions such as bronchitis and asthma, and that toxic metals in coal dust from the mines would increase people's risk of cancer and kidney damage.
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They also claimed that small dust particles contribute to haze, alter the nutrient balance in water bodies, and diminish ecological diversity. .
In response, ExIm Bank claimed the plaintiffs lacked standing and that it was not necessary to conduct a NEPA-compliant environmental study for a loan guarantee.
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On Wednesday, District of Columbia Federal Judge Rudolph Contreras agreed with the ExIm Bank, and found that the plaintiffs lacked standing to challenge the loan guarantee.
. To establish standing in cases alleging violation of procedural rights, such as NEPA lawsuits, the plaintiff must demonstrate a specific rather than general interest in the matter, show that the government's failure to conform to the procedure at issue will harm the plaintiff's interests, that the government's failure to act is the cause of the plaintiff's alleged injuries, and that the court can provide actual rather than speculative relief, the ruling states. .
The defendants acknowledged that members of the four environmental groups suing on behalf of their members would likely be harmed by pollution from coal exportation, but argued that the groups lacked standing because they did not prove that the loan would cause Xcoal to export more coal or that vacating the guarantee would force Xcoal to export less coal.

  In rebuttal, the groups asserted that ExIm's loan enabled Xcoal to export more coal than it could without the guarantee, and that canceling the guarantee until the bank completes NEPA analysis would force Xcoal to decrease coal exports and thus reduce pollution.
     Contreras was not persuaded. He found that the administrative record and declarations from the parties demonstrate no link between ExIm Bank's authorization of the loan guarantee and the amount of Xcoal's coal exports.

     Though the groups' members believed NEPA compliance could better protect them from the effects of coal pollution, their "hopes or beliefs than an order rescinding the guarantee would redress their injuries, however genuine, do not constitute 'specific facts' showing redressability," Contreras wrote.

. In contrast, the defendants supported their position with specific facts, such as Xcoal's using other lines of credit to boost its coal exports, to prove that rescinding the guarantee will accomplish little to protect the plaintiffs' members from pollution, the ruling states. .
     "The proposition that Xcoal would export less coal if the court orders the bank to rescind its guarantee is, at best, entirely conjectural in light of the availability of alternative funds and Xcoal's stated commitment to exporting the same volume of coal regardless of whether the loan guarantee is rescinded," Contreras wrote.
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     Since the four groups cannot refute the defendants' assertions that the European banking crises is easing up and that Xcoal is using only 30 percent of its available $535 million in credit, they lack standing for failure to establish redressabillity, Contreras added.
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     The Center for International Environmental Law's and Pacific Environment's claims for organizational standing based on suffering "injuries to their organizations' missions, activities, and resources" due to ExIm's guarantee also failed to impress the court because neither could not show that they suffered actual harm.
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     Both groups contended that the guarantee interferes with their express missions to protect the environment, and forced them to expend resources on environmental advocacy and public education, but neither could back up those claims with specific facts or explain how allocating additional funds for advocacy differed from their typical program activities and costs, according to the ruling.
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     An action that merely frustrates an organization's goals is not enough to prove actual injury, and without proof of such injury, the plaintiffs thus lack standing, Contreras wrote.
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     The court granted the defendants' motion for summary judgment and denied as moot the plaintiffs' motion to include extra-record evidence.
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     The plaintiffs were Chesapeake Climate Action Network, the Center for International Environmental Law, Friends of the Earth, the Sierra Club, the West Virginia Highlands Conservancy, and Pacific Environment."


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In 2013 Obama ExIm Bank Pres. appointee Hochberg was approved for a second four year term:
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6/6/13, "Senate panel backs Hochberg for second term at Ex-Im Bank," Reuters
 
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"The Senate Banking Committee voted 20-2 on Thursday to back Fred Hochberg for a second term as president of the U.S. Export-Import Bank, which provides financial assistance to support U.S. exports."... .
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 Export Import Bank Board of Directors are also Obama appointees, exim.gov
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Sierra Club doesn't understand Hochberg is only carrying out Obama's wishes: 

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5/6/13, "U.S. Export-Import Bank Shady Coal Scheme in Mongolia," Daily Kos, nicoleghio
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"Once again, U.S. Export-Import Bank (Exim) Chairman Fred Hochberg is using our taxpayer dollars to finance a dangerous fossil fuel project. This time it’s Rio Tinto’s Oyu Tolgoi gold and copper mine and the associated coal-fired power plant in Mongolia. What’s even more galling is that Hochberg and the Exim board of directors approved the project in April despite what amounted to a vote of no confidence in the very same project by the U.S. Treasury, which abstained from a decision on funding from World Bank Group’s International Financial Corporation (IFC).
When explaining their abstention, Treasury officials stated, "The ESIA does not provide a sufficiently detailed analysis of associated facilities and cumulative impacts, notably concerning a coal-fired power plant that will likely be needed to provide reliable power for the project." Clearly these were trivial matters for Mr. Hochberg and Exim that should not come between them and a new destructive coal plant.
The sad part is we now know that the situation is much worse. At the time of the World Bank vote, Rio Tinto was telling officials that a final decision had not been made on whether or not they would construct a coal-fired power plant. But in Mongolia, they were already making preparations on the ground for the plant. In other words, Rio Tinto was lying in order to get funding from the IFC and the U.S. Government -- and it worked because neither the World Bank nor Exim did the necessary due diligence to check Rio Tinto’s claims. Did I mention this is your tax payer dollars at work?
Our partners at Accountability Counsel did check, and it wasn’t that hard. They traveled to Mongolia and took a tour of the mine with a Rio Tinto official. Not only did he tell Accountability Counsel that he had not heard any talk of reconsidering the decision to build the coal-fired power plant, he pointed out where the worker housing was already under construction. It is the white line in the distance of this photo provided by Accountability Counsel.
Of course, Hochberg has a long history of supporting controversial coal projects backed by unscrupulous companies, so we’re hardly be surprised. But we can’t let him, or the US Government off the hook for decisions like these. It’s clear that abstention votes are not enough. Going forward Exim and Treasury must vote “no” on fossil fuel projects, especially dirty coal projects. It’s way past time for the World Bank and the U.S. Export-Import Bank to get out of the coal business." . -- Nicole Ghio, Sierra Club's International Campaign

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Obama's Export Import Bank gave out $9.6 billion in fossil fuel financing in 2012: 
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Jan. 14, 2014, "U.S. spending bill aims to dilute curbs on overseas coal financing," Reuters, Valerie Volcovici
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"The Ex-Im Bank's fossil fuel financing reached a peak of $9.6 billion in the 2012 fiscal year, according to environmental group Pacific Environment."... . .  
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Sierra Club's concern about the Great Barrier Reef should've been directed to Obama though clearly he doesn't agree that Hochberg is "damaging the reputation" of his administration. In 2013 Obama re-appointed him to a second four year term:

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9/28/2012, "US Ex-Im Bank President Fred Hochberg Underwriting Destruction of The Great Barrier Reef, Again?" sierraclub.typepad.com
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"The US Export-Import Bank (Ex-Im), and its president Fred Hochberg, have never met a coal project they don’t like. At times it’s so bad we don’t know what century the institution thinks it is operating in. Now despite a worldwide uproar over their interest in one of the world’s largest coal ‘mega-mines’ in Australia they have been linked to another Australian mega mine (http://reut.rs/NRb26S). Underwriting the havoc this would wreak on the Great Barrier Reef is an unacceptable use of US tax payer dollars and it’s time Ex-Im Bank came clean on its involvement. 


It’s not surprising to hear over-eager developers link the Ex-Im Bank to these projects because the institution has a long history of supporting fossil fuel projectsand that track record is getting worse. It got so bad that the Sierra Club wrote an open letter to President Fred Hochberg because we have witnessed first hand the destruction these projects are wreaking on communities and livelihoods (check out our blog on the Sasan coal project in India).

But our pleas were callously ignored as President Hochberg ok’d a massive expansion of coal finance in every corner of the globe. From Kusile in South Africa, to Sasan in India, to Xcoal in the US, to these proposed mines in Australia, it appears that Ex-Im Bank cares little for the damage the institution is causing to communities around the world not to mention the reputation of this administration.

The problem however is that the public does. And that public stretches from Australia where the mining would take place, to India where the coal would be burned, to the US where the financing would come from. This global outcry was captured in part by Avaaz’s petition to #savethereef (consider taking a minute to tell Fred Hochberg personally via twitter: @fredhochberg), but also by media scrutiny in India, the US, the UK, and Australia. It appears that while President Hochberg may consider designations like ‘World Heritage Site’ pesky obstacles, the global public considers them treasures.

Which is why Greenpeace Australia’s recent report on massive coal export expansion plans that would trample the Great Barrier Reef, and the global climate, was so damning. They found that if underwritten by institutions like Ex-Im Bank the world would add emissions the size of the country of Canada while increasing traffic through one of the world’s greatest natural wonders. For an excellent visual representation of this lunacy check out Greenpeace’s short video:....
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So how did President Hochberg react? By quietly talking with another Indian company to finance another mega mine - this time with Adani group, whose record of violations (PDF) would give most institutions pause. Not Ex-Im though. After all, it makes sense that being linked to a scandal plagued Indian coal sector beset by ‘coal-gate’ investigations would be of little consequence if you are willing to finance the destruction of a global treasure like the reef.

But at the end of the day these may be over eager developers looking to increase the perception in the financial community that their projects have legs. The truth is with prices at near 2 year lows the Australian mining community is understandably worried that these projects are no longer viable. That is why the vociferous claims from Adani and GVK may be making their way into the press at this opportune moment.

But if that’s true, it’s easy enough for President Hochberg to condemn these public statements, and publicly dissociate the bank from this scandal. Instead he has been silent which leaves a huge question mark over US involvement. But let’s not put words in anyone’s mouth. Let’s let President Hochberg speak for himself.

So Mr. Hochberg, where do you stand? The world is waiting for your answer."

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- "Justin Guay, Sierra Club International Program"
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Comment: Obama's "answer" to the Sierra Club and "the world" was to re-appoint Hochberg in 2013 to a second four year term

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Ed. note: Please pardon messy appearance of this post, text either jammed together or separated by unnatural gaps. Google wasn't happy about this post.



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