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EPA May Face a Lawsuit Over Approving Unlimited Dumping of Fracking Waste in Gulf of Mexico

The Environmental Protection Agency (EPA) was created back in 1970 with the goal of–lo and behold–protecting human health and the environment. It does this in a number of ways, by enforcing pollution regulations, running voluntary pollution reduction programs, researching the impact of pollution and publishing studies on everything from air pollution to fuel economy to pesticides to oil spill prevention and more. The agency has been at the forefront of an enormous amount of steps taken to improve our impact on the environment, pursue clean energy, and more. However, exactly how much the EPA has done has depended on who is in charge and it has often undergone a process of building regulations to see them removed a few years later.

The current Trump Administration appointment as head of the EPA is Scott Pruitt, a climate change denier who dissolved the Environmental Protection Unit of Oklahoma’s Attorney General’s Office during his time as Attorney General there. He also sued the EPA over their Clean Power Plan and Waters of the United States Rules and more–in all suing the EPA 14 different times. He’s described himself as the “leading advocate” against the EPA. Not necessarily surprising based on these facts, his Attorney General campaigns were largely funded by fossil fuel interests.

As you might also imagine based on these facts, the power of the EPA is currently waning under Pruitt’s watch–for example back in June he announced the Clean Water Rule would be rescinded. It’s against this backdrop that the EPA granted a Clean Water Act permit last September allowing offshore oil and gas platforms off the coast of Texas to dump unlimited amounts of waste fluid–fracking chemicals included–into the Gulf of Mexico.

EPAThe Center for Biological Diversity has taken issue with this unlimited permit and has filed a 60-day notice of their intent to sue the EPA. The lawsuit primarily revolves around the permit grant violating the Endangered Species Act (ESA). The Center is arguing that the EPA did not do sufficient research prior to granting the permit as required by the ESA. They argue this is especially true in light of all the endangered and threatened species in the Gulf of Mexico such as sea turtles, whales, manatees, corals, and more. Let’s take a look at how the ESA works and the lawsuit itself.

The Endangered Species Act

The permit granted by the EPA is legally known as a National Pollutant Discharge Elimination System General Permit for New and Existing Dischargers in the Offshore Subcategory of the Oil and Gas Extraction Point Source Category for the Western Portion of the Outer Continental Shelf of the Gulf of Mexico. This is obviously a bit of a mouthful, but suffice it say these types of permits are subject to the requirements of the ESA.

The ESA has quite a few elements to it. However, section 7 of the ESA requires the EPA, and other agencies, to do studies before granting any given permit. These studies must establish whether the actions the permit allows jeopardize the continued existence of a species listed as threatened or endangered under the ESA. The ESA also requires these studies if the permitted actions might but a critical habitat in danger. This makes sense, the goal of the ESA is to provide legal protection to endangered and threatened species and their ecosystems–hopefully preventing their extinction. Section 9 if the ESA forbids any person, company, or agency from doing something that harasses harms, pursues, hunts, shoots, wounds, kills, traps, captures, collects, or an similar acts to a species listed in the ESA. Courts have ruled that this includes situations where an agency like the EPA authorizes an act which results in the killing or harming of a species listed in the ESA. This includes destroying such a species habitat or making it harder for them to breed of feed.

In order to avoid this, the section 7 reporting we discussed requires agencies to perform research ensuring that their permits or other actions won’t result in ESA violations. Agencies must request a biological assessment to see if their action will impact ESA species. If that assessment shows that they are unlikely to have a negative impact on an ESA species, they are in the clear and need no particularly formal research before they move forward. If they may affect an ESA species, and affect here is a very low requirement requiring only minimal negative impact, the agency needs to make a more formal study.

After this more serious study, there is a determination of whether it is likely the action will jeopardize an ESA species. If this is the case, there must be suggested modifications to avoid this likelihood. Alternatively, if the study shows that the action will not jeopardize an ESA species but will still harm it may issue a statement of requirements that must be followed to minimize the damage. Even after all this, further studies and changes can be required should the situation damage a species or habitat, new ESA species are added and the actions impact them, the damage is more than expected, or new information comes to light. Agencies may not take action that would prevent implementation of alternatives prior to completion of these studies. This is to avoid, for instance, a permit being granted and the grantee quickly pushing though its project before the studies are complete.

The EPA Granted Permits With Basically No Study

All this is in place to protect the environment, the apparent goal of the EPA. However, in granting this unlimited dumping license the EPA did next to no studies. It didn’t consult with any experts on the potential damages, it didn’t even consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service. They certainly didn’t do so regarding the specific impact of their dumping permit on the endangered species in the Gulf of Mexico. The lawsuit that will brought against the EPA argues that, not only did they utterly fail in following through with the ESA requirements, their permit will cause serious danger to the whales, turtles, manatees, and dozens of other ESA species in the Gulf of Mexico.

The permits, as granted, allow tens of thousands of offshore oil and gas platforms and wells to dump fracking chemicals, drill cuttings and fluids, well treatment fluids, and other waste products into the Gulf. This waste water contains a number of chemicals, such as arsenic, cadmium , radioactive materials, mercury, sulfur, and many many more, which have been found in studies to be harmful to marine life.

The Lawsuit Moving Forward and the Importance of the EPA

As of now, the notice of lawsuit will end in a federal court filing if the EPA does not address the issues the Center for Biological Diversity has claimed are inherent to their dumping permits in the next month or so. However, the situation also highlights a larger legal issue of the importance of the EPA following through on its goals.

These permits represent a pattern of behavior on the part of the EPA, under the watch of Scott Pruitt, that raise serious concerns. The waxing and waning powers of the EPA is nothing new. However, it is disappointing to see such blatant disregard for environmental policy from the agency ostensibly designed to enforce, promote, and protect that policy. This is a world we all share and protecting our water (especially looking at situations like the one Flint), our air, our soil, and the plants and animals who populate it, is crucial to passing on a healthy world to our children and our children’s children.

Who is to Blame When a Child Commits Suicide?

Ashawnty Davis, age 10, died December 1, 2017 after being taken off life support at a children’s hospital. She died two weeks after she was found hanging in a closet at home.

Her parents claim their daughter was bullied after a video of a fight she was in at school in Aurora, CO, in October was posted online. Ashawnty confronted a girl who had bullied her and the fight was recorded and posted on an app called Musical.ly. Ashawnty is allegedly the latest victim of “bullycide,” suicide by bullying.

Who is Liable?

Ashawnty’s parents are obviously in pain and blaming multiple parties. Liability for such a tragic death would be difficult to prove though. In personal injury cases, the defendant’s actions must have at least a causal link to the alleged injury. If the defendant’s acted intentionally, the petitioner only has to show proximate causation. If the defendant acted neglectedly, the lawsuit must prove that the defendant’s negligence was a direct cause of the injury.

childrenMoreover, they must be foreseeable. A reasonable person should be able to look at the circumstances and conclude that a person in this condition would kill him/herself.

School Officials

Ashawnty’s parents claim that Cherry Creek School District should have done more to stop the bullying that drove their daughter to hang herself. The Cherry Creek School District says that the students were talked to about the fight, the parents were called and the cellphone video was sent to the Aurora Police Department. The School District also claims that the school didn’t know about the bullying because the fight took place after school hours.

Ashawnty’s parents believe those steps weren’t enough: “There was nothing done about it. When I got the call telling me that my daughter had been in a fight, they never gave me the opportunity to meet with the other parents to come to the bottom of the line.”

The School is arguing about school hours because they are trying to argue they did not have the legal duty to prevent such harm. This strategy is flawed from the start because case law has put the burden on school officials and those with a special relationship to the child to prevent a death if possible. Even if the fight had taken place after school hours, the contributing bullying likely took place during school hours.

Cherry Creek’s defenses are contradictory. Assuming that the fight itself was considering bullying, and then the school took steps to prevent further bullying, including talking to the students, calling parents, and contacting local police. It cannot turn around and claim they didn’t know there was bullying occurring.

Suing the school would be tough since there would be too many superseding events to hold the school accountable. It’s not clear that the school didn’t do everything possible to protect the children.

Musical.ly

The parents might also consider suing Musical.ly. After all, it was their platform that drove the publicity which caused the girl to commit suicide.

The issues of causation are present with Musical.ly as well. Musical.ly is merely one file-sharing company among many. Third parties used Musical.ly to cause pain to a little girl. The company would be held liable for the actions of two third parties: the bullies who uploaded their video to their website and the girl who killed herself. Blaming Musical.ly for the girl’s death would be like blaming the rope maker for providing the fabric that Ashawnty used to take her life. Ashawnty‘s death is tragic, but entirely unforeseeable by the music company.

The Bullies

Obviously, the party most guilty here would be the bullies themselves. Their actions were intentional and ultimately drove the girl to kill herself. Normally, a person is not responsible for the actions, thoughts, or emotions of another person. This wasn’t a case where a person was negligent and didn’t realize that the other person was contemplating suicide. The bullies were intentionally causing Ashawnty pain. Even if a child doesn’t fully understand the consequences of his or her actions, they should know that causing another person pain is wrong.

As said above though, holding someone liable for the suicide of another is difficult, even when there are explicit texts of the defendant encouraging the victim to kill himself.

Parents of the Bullying Children

Since the children are legally unable to understand the consequences of their actions, liability would fall on the parents. Parents can be held liable if their child commits a murder or other felony. If bullying another child to kill herself is a crime, then the parents should be liable for that as well. Financially, it’s not desirable since parents are unlikely to have the money to pay for a wrongful death suit; the school and the music company would be better targets if the goal is to collect a money judgment. For a bereaved parent though, justice might be all that is required.

Senate Introduces Bills to Protect Your Personal Data

This year has seen data breach after data breach on unprecedented levels–Yahoo, Uber, Equifax, and more. We’ve seen multiple breaches in one year which have each broken previous records set for sheer size of a breach. This has to serious concerns about privacy as people scramble to secure their online information and protect against credit card fraud through credit freezes and the like. Congress has responded to this heightened concern with two recent bills on the topic known as the Consumer Privacy Protection Act of 2017 and the Data Security and Breach Notification Act.

These two acts, taken together, represent a substantial step forward in terms of data protection requirements on corporations. The Consumer Privacy Protection Act focuses on improving the data security required by larger companies, almost certainly a direct reaction to the Equifax breach and, to a smaller degree, the Uber breach. This is especially true given how lackluster Equifax’s security was, drawing substantial criticism in the wake of their breach. Uber outright had administrators publish code including private usernames and passwords to the software repository website Github.

The Data Security and Breach Notification Act deals more with requiring faster and more thorough reporting of a substantial data breaches. This is likely a response to the Yahoo and, once again, Uber breach. Yahoo kept a breach of then-record-breaking size–around 500M people affected–from the public for years. Uber didn’t report it’s breach for at least a year after it became aware of the security issue. We are seeing continuously larger and more dangerous data breaches, and Congress finally is acting on this. Let’s a look at these two acts and the steps they take to protect your data and your privacy.

personal dataThe Consumer Privacy Protection Act of 2017

To put it simply if a company holds data on 10,000 or more U.S. citizens they are required under this act to put into place a comprehensive privacy and data security program that is scaled appropriately to the size of the company, the nature of their business (for example a company holding more crucial information such as bank records or social security numbers would require more security than one that did not), the amount of information they hold, and what they do with that information.

The legislation specifically targets personally identifiable information for protection. This is a common legal phrase, although its definition varies depending on where you are. However, it can thought of as information that could be used to link you to data. This is an important distinction as it does not require the same protections for things like metadata.

Under the act, there are a number of categories of data that are specifically highlighted for protection requirements: driver’s license numbers, social security numbers, passport numbers, financial account numbers, debit card or credit card numbers when in combination with a PIN or security code, online usernames and passwords, fingerprints, retina or iris scans, physical and mental health data, private digital photographs and videos, and geolocation data. Under the act a security a breach occurs when there is a reasonable basis to believe compromised security or privacy of data has resulted in unauthorized access or acquisition of sensitive personally identifiable information (often abbreviated as PII) such as the things listed above.

The act will require these security policies to be implemented as quickly as possible and require notification of the discovery without unreasonable delay. Where a breach occurs, the law requires the breached company to give five years of free identity theft prevention services to those affected to anybody who asks for it. It also forbids automatic enrollment in such services without specific consent, so it will be more important for you to make the effort to ensure you get such services if the law passes. The bill does not allow for you to sue under it, but includes fines from the FTC for reported violations. The penalties start at $16,500 and scale up based on the size of a breach. This is fairly small based on the sheer scope of some of these breaches, but remember they are a minimum.

The Data Security and Breach Notification Act

We’ve seen that the Consumer Privacy Protection Act has some elements requiring swift reporting. However, the recent Data Security and Breach Notification Act takes this even further. It has some similar elements, requiring heightened security measures. However, if passed, it would also require nationwide notice if a security breach occurs.

The bill will require the Federal Trade Commission (FTC)  to take steps to provide in depth requirements for security policies within a year of the act passing. These requirements would be fairly in depth, covering how data can be collected, used, sold, disseminated and maintained, the appointment of a specific data security and management officer, a process for finding, monitoring, and dealing with security weaknesses, a process for quickly addressing any weaknesses, a process for disposing of data in a permanent, irretrievable form, and destruction of paper forms.

The notification requirements of the act would require quick notification–within 30 days of learning of the beach–of all those who reasonably could be believed to have been affected by the breach nationwide. It also generally requires notification to the FTC. These are pretty standard in most data breach reporting statutes around the nation, however there are a few additional elements that expand reporting requirements beyond the norm. First, where there is a breach of security of a system maintained by a third party contractor, the third party security company must notify the company contracting it who must then follow the usual reporting requirements. The second big change is that any breach affecting over 5,000 people will have to coordinate with the major credit reporting agencies in providing through notifications. Concealing a breach can lead to up to five years in prison.

There are a few exceptions, if the Secret Service of the FBI thinks notification would impede a criminal investigation or impact national security they may act to delay the normal notifications via a written communication to the company that would normally need to disclose the breach. This exception doesn’t seem to have a limitation on duration, the FBI or Secret service just have to say how long they want the delay to be.

There is also no reporting requirement under this act where the breached company “reasonably concludes” that there is no reasonable risk of identity theft, fraud, or other unlawful conduct based on the breach. The act also creates a presumption that such a risk doesn’t exist if the security measures render the breached data unusable, unreadable, or indecipherable and this fact is generally accepted by data security experts. This is a rebuttable presumption, if there are facts to the contrary reporting may still be required and penalties levied against those who fail to do so.

Protecting Your Data is Incredibly Important

You should take steps on your own to make sure your data is secure. However, the information age requires sharing of an unprecedented amount of private information online. The last few years have seen data breach after data breach breaking records for the largest of all time. Several of the breaches in just the last two years have affected more people than the entire population of the U.S. These laws are necessary and hopefully they’ll be passed soon. However, even these laws may not go far enough.

They expand federal data breach protections to the level of many state statutes. However, their exceptions may leave many companies credibly arguing that they delayed reporting breaches based on a belief nobody was really in danger. At the very least, requiring thorough security is a good first step. Hopefully, it is a first step of many.

New Jersey Might Require Equal Parenting Time in Child Custody Cases

One of the most controversial aspects of child custody is who has physical custody. Schedules can differ wildly from 90/10 (where one parent has custody 90% of the time and the other parent 10%) to 50/50 (50% time for each parent). Most judges and mediators will suggest an equal time split and then adjust the time allocated based on the case.

What is New Jersey’s Approach?

New Jersey state legislators have proposed bills that would make 50/50 custody the default child custody arrangement. The bills, S3479 and A5189, would make equal time between parents the default child custody arrangement, unless a parent can show that equal time would be harmful to the children. Currently, New Jersey courts do not presume equal parenting time. Instead, family law judges look to the best interests of the child. The “best interest” test involves a wide variety of factors, including but not limited to: stable environment, preference of the child, parents’ ability to agree and cooperate, and who had custody of the child(ren) prior to parental separation.

child custodyAt first glance, a law requiring equal time between parents doesn’t sound like a bad idea. If both parents have equal time with the children, there would be one less thing that parents fight over during a divorce. More importantly, the children would get to spend time with both parents and they wouldn’t feel cut out of one parent’s life.

Are There Any Downsides?

However, there are very real downsides to this approach. Making “equal time” the default prevents judges from making real decisions in cases where judicial discretion is most needed. In some cases, a parent cannot afford equal time. A parent with a busy work schedule needs to work more hours to pay for the child (and spousal) support. In other cases, a parent might be closer to a better school or have more options in education. Since the bill only allows parents to argue against equal time if there would be harm to the children, an automatic equal time schedule might actually cause more hardship on the family.

Mandatory equal time also puts domestic abuse victims at a significant disadvantage. The court would have to assume that equal time is best unless the victim can show that equal time would be harmful. Similarly, a parent with drug or alcohol problems would benefit from a default 50/50 custody schedule. Although the bill allows parents to argue against equal time if it would be harmful to the children, requiring a parent to overcome a legislative presumption creates an unnecessary uphill battle that shouldn’t exist in the first place.

Replacing child’s best interest with equal time for both parents also distorts the priorities family courts should have when determining child custody. The goal of child custody and child support is to ensure that the children are taken care of. Proponents of default equal time claim that changing the law will be a good thing because it will cut down on litigation and parental fighting. Child custody hearings should not consider these goals because it puts the parents’ money and feelings over the wellbeing of the children.

Making child custody automatically 50/50 between parents might sound like a good idea, but the plan is filled with hidden dangers. Default equal time puts greater emphasis on the parents’ needs over the children’s well-being. It would continue to victimize domestic violence victims. And it would standardize an area of law that often turns on individual circumstances and facts of the case.

GOP Tax Plan: How Will the New Tax Plan Affect You?

With the GOP tax plan jelling into a final form–reaching a compromise between the Republican majority in the House and Senate–we will likely see a vote on a plan before the end of the year. When that vote happens, it’s good odds that we’ll see this plan become your reality. The plan itself has seen its share of critics, both Republicans (who have criticized the bill for both going too far and not far enough) and Democrats (who have been displeased with both the fact that they have had nearly zero input on the plan and the impact it will have on social welfare plans as well as low to middle income households) have weighed in for and against the plan.

There’s still some ongoing debate over elements of the bill, and especially over exactly how deep to make the cuts to the corporate taxation rate. The bill may still be unable to reach a form that is agreeable to enough Republicans–the majority is narrow enough that it only takes a few dissenters to block the bill. It also is a possibility that this situation might leave Republican leaders too uncomfortable with the plan’s chances to bring a vote before the session ends. However, realistically we’re going to see this tax plan pass. The GOP is looking for a policy win after their failures to deliver on their promises regarding healthcare. With that in mind, it’s important that you understand the impact that this tax plan will have–both on you personally and in general.

The Basics of the Plan

As it is, the more general impact of the plan depends partially on who you ask. In their original pitch, Republicans said that the extremely optimistically named Tax Cuts and Jobs Act would cut taxes for around three-quarters of U.S. citizens. However, these calculations left out some crucial elements such as how these cuts would be paid for. The procedural rules surrounding how the tax plan is being passed requires them to offset any cuts they make with revenues elsewhere in the plan–something known as keeping the bill revenue neutral. Once paying for the bill is considered, experts have indicated that the numbers essentially reverse with about three-quarters of U.S. citizens paying more overall. According to the Tax Policy Center, a non-partisan organization, those making less than around $86,000 a year will not benefit from the plan.

These calculations are based on the most recent version of the bill. Without a finalized plan, any calculations are approximations but it’s likely the final bill will be quite like this one. The primary topic the House and Senate are debating at this point is how to pay for the cuts. This debate has encompassed retirement plans, welfare programs, state and federal tax write-offs, and-most recently-reducing the cuts to the tax rate in the program. The original–and current plan–cut the corporate tax rate from 35% to 20%. There has been substantial debate over changing that number to 22% to help cover costs for the cuts–a change that has seen fierce opposition from many Republicans in the House and Senate.

GOP Tax PlanOther substantial changes include changing the number of tax brackets from seven to five and changes in how employees and independent contractors are taxed. Let’s look at any potential worries you might have about the tax plan and the impact it is likely to have on you and your business.

Your Retirement Plan

While those drafting the tax plan originally looked at 401(k) plans as a potential target for changes in making the plan revenue neutral. However, fortunately, retirement plans are currently off the chopping block. The main concerns were over the potential that 401(k) plans may have ended up taxed like Roth IRAs. 401(k) are currently made pre-tax with taxes paid as income when you start making withdrawals. Roth IRAs on the other hand are taxed when you make the original contribution.

As of now, the way retirement plans are taxed does not look like it will change substantially. The tax-free contribution limit for 401(k) will still be $18k ($18.5k next year) for those age 49 and below and $24k for those 50 and up.

Wages v. Other Forms of Income

One substantial change from the bill is that wage based income will be taxed at a substantially higher rate than independent contractors, sole proprietors (people who own a business by themselves), partnerships, and closely held corporations (basically corporations owned by a small number of people with no public stock). More than ever before, how high your taxes are will be linked to the organizational structure of your business or your occupation.

This means a couple of things. For most U.S. citizens who earn a wage as an employee, it likely means at least a small tax increase. It also means that forming a business entity has more tax advantages than ever before, a lot of people will–for good reason–make efforts to identify themselves as a business of some sort for tax purposes. This obviously has advantages for people running their own business (even a single person can form an LLC or closely held corporation in many or most situations) or larger corporations. However, it can pose a disadvantage for many. Two people doing substantially the same job will have different tax treatment based on how they are classified.

This is particularly problematic as defining what is wage income and what is business income can be a tricky proposition. Regardless, if you run a business and have not yet formed a business entity to better define income, now would be a particularly advantageous time to do so. Pass-through businesses such as partnerships are receiving a 23% deduction rate, a strong motivation for promotions for highly paid employees and restructuring. However, it is worth noting that the current bill does not allow households with a $500,00 or higher joint income and single payers with a $250,000 or higher income to qualify for the pass-through rules. These are obviously people who are better prepared to pay more in taxes. However, as written the law creates an odd situation for those making between around $530k and $624k–requiring them to pay as much as 85% of their income as taxes. While these are again people capable of paying more in taxes, this still seems unintentionally high.

Pass-throughs, which range from an ice cream stand to multibillion-dollar operations like Georgia-Pacific (a Koch Industries subsidiary) and Fidelity Investments, don’t pay corporate taxes. Instead they pass through income to their owners or shareholders, who pay taxes at the ordinary rate on their individual returns.

To summarize, the tax plan has many potential advantages unless you are classified as an employee–as most people are. If the tax plan goes through as is, expect to see shifts in how income is classified to take advantage of the new provisions.

How Will This Impact Your Mortgage and Your Estate?

One of the most substantial differences between the Senate and House approaches to the new plan revolves around your estate (what you leave behind when you pass) and your mortgage. The House plan completely repealed the estate tax, the Senate bill does not go this far. The House plan also has a lower cap on the amount you can deduct from your taxes based on what is paid on mortgage interest–$500k versus the House’s $1M cap.

Federal Deductions for State Taxes

Another change the tax plan has seen since its introduction is its approach to the deductions you can take for the taxes you pay on a state or local level. Initially, the plan would have just completely removed your ability to deduct taxes paid to your state, county or municipality.

This led to substantial argument among Republican Representatives, threatening the small margin by which the bill would pass. Ultimately, although they reached a compromise, you’re still going to see the amount you can deduct drastically limited. State and local deductions are completely gone for both sales and income tax. However, up to $10k can be deducted for local property taxes.

An Incomplete Plan

The tax plan is incomplete both in the sense that it is currently being debated and has not reached its final form and also in that it has some serious potential holes in it. The advantages of incorporation under the bill are such that putting investment profits into a corporation or making your private business a pass through are going to be a more attractive possibility than ever. This isn’t bad in and of itself, but it will lead to many classification nightmares as people scramble to avoid the higher taxes on employee wages. What’s more, with the majority of U.S. citizens earning on a wage basis, the changes are unlikely to be beneficial to these people.

As mentioned several times, the margins by which this plan is passing are slim but very few Republican Senators have held out much in the way of opposition to their party’s plan. A vote needs to happen fairly soon if the tax plan is going to be implemented in a timely fashion, so what we have now is likely very close to the final version of the plan.  There could still be some changes, and consulting a tax professional as to how this overhaul will impact you and how you should react is a very good idea.