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S. 209 (1977). 86 Brown v. S. 87 (1982); Democratic Party v. S. 107 (1981); Buckley v. S. 1 (1976); Cousins v. S. 477 (1975); American Party v. S. 767 (1974); NAACP v. S. 415 (1963); Shelton v. Tucker, 364 U. S. 486 (1960); NAACP v. S. 449 (1958). 87 Roberts v. S. 609 (1984). 88 Id. at 622–29. 4 STATISTICAL PROFILE OF CHARITABLE SECTOR The charitable sector and the federal tax law with respect to it have a common feature: enormous and incessant growth. This expansion is reflected in all of the principal indicators pertaining to this sector, including the number of organizations, the sector’s asset base, the amount of charitable giving and granting, its annual expenditures, its share of the gross national product, and the size of its workforce.
One reason is that church organizations (of which there are an estimated 350,000105) are not required to file annual information returns with the IRS,106 so data concerning them is difficult to amass. Also, hundreds of organizations fall under a group exemption107 and thus are not separately identified. 108 Small organizations are not required to file annual information returns 98 Indeed, there is little uniformity as to this term. See text accompanied by supra note 7. That is, organizations that are tax-exempt pursuant to IRC § 501(a) because they are described in IRC § 501 (c)(3) (see Tax-Exempt Organizations, pt.
2(b)(i). 6. 108 These are organizations that normally do not generate more than $5,000 in revenue. 2(b)(ii). 109 The number of tax-exempt organizations that are formally recognized in the federal tax law context is approaching 2 million. 28 billion; this level of giving constituted an estimated 75 percent of all charitable giving for the year. 3. The IRS has not, as of mid-2009, published any data resulting from this notification requirement. 110 Nonprofit Almanac at 3, 140. 111 Id. at 3. 112 Id.


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Justia › US Law › US Case Law › US Supreme Court › Volume 260 › Heisler v. Thomas Colliery Co.
In 1913, the Commonwealth of Pennsylvania, by an act of its General Assembly [P.L. 639, p. 639], imposed a tax of 2 1/2 percent upon anthracite coal, and provided for the distribution of the tax.
The act was adjudged a violation of the Constitution of the commonwealth, which required uniformity of taxation. Commonwealth v. Alden Coal Co., 251 Pa. 134, and Commonwealth v. St. Clair, 251 Pa. 159.
In 1921, the commonwealth passed the act here involved. [P.L. 1921, p.479]. It provided that, from and after its passage, each ton of anthracite coal mined, "washed or screened, or otherwise prepared for market" in the commonwealth should be "subject to a tax of one and one-half percentum (1 1/2) of the value thereof when prepared for market." It was provided that the tax should be assessed at the time when the coal has been subjected to the indicated preparation "and is ready for shipment or market."
Plaintiff in error, alleging himself to be a stockholder of the Thomas Colliery Company, brought this suit to have the act adjudged and decreed to be unconstitutional and void, and to enjoin that company and its directors from complying with the act, and to enjoin defendant in error, Samuel L. Lewis, Auditor General of the Commonwealth, and the defendant in error, Charles A. Snyder, Treasurer of the Commonwealth, from enforcing the act.
by the supreme court of the state. The case is here on writ of error to that action.
The bill in the case, as far as we are concerned with it, assails the Act of 1921 as offensive to the Fourteenth Amendment of the Constitution of the United States in that it denies to the Thomas Colliery Company and other owners and operators of anthracite mines the equal protection of the laws because it taxes such owners and anthracite coal, and does not tax the owners of bituminous mines and bituminous coal. The ultimate foundation of the contention is that anthracite coal and bituminous coal are fuels, and necessarily therefore must be associated in the same class for taxation, in disregard or in diminution of whatever other differences may exist between them in composition, qualities, or uses, and that not to so associate them is arbitrary and unreasonable, having the consequences of inequality and illegality, and therefore within the ban of the Constitution of the United States.
The contention therefore concentrates attention upon the consideration of what resemblances or differences in objects justify their inclusion in, or their exclusion from, a particular class.
It would be commonplace and wearisome to enlarge much upon the principle that presides in and determines the classification of objects. It is too necessary and too familiar in the affairs of life. We cannot go far in thought or practice without its exercise. It is the process of considering objects together or in separation as determined by their properties, or some of them, and the purpose we have in hand. If the properties and purpose have relation, the process is logically justified.
Illustrations readily occur. A farmer will classify plants differently from a botanist, but the classification of both may, notwithstanding the difference, be logically proper.
And so classification has uses in government -- indeed, we may say, necessities in government -- for government as well as persons has purposes, varied and at times, exigent, and its legislation must be accommodated to them either in convenience or necessity. That government has the power to do so we have often pronounced, not, however, omitting to recognize the restraints upon the power while expressing its range and adaptation. In its exercise in taxation, we have said, it is competent for a state to exempt certain kinds of property and tax others, the restraints upon its only being against "clear and hostile discriminations against particular persons and classes." Discriminations merely are not inhibited, for it was recognized that there are "discriminations which the best interests of society require." Bell's Gap Railroad Co. v. Pennsylvania, 134 U. S. 232, 134 U. S. 237.
"Any classification is permissible which has a reasonable relation to some permitted end of governmental action. . . . It is enough, for instance, if the classification is reasonably founded in 'the purposes and policy of taxation.'"
"it makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety."
definite evil, but may be only to remove "obstacles to a greater public welfare." See also, as to classification by legislation and its consonance to the requirements of the Fourteenth Amendment, District of Columbia v. Brooke, 214 U. S. 138, 214 U. S. 150.
Is there a guide in these cases to decision, or is it to be found in the cases cited by the plaintiff in error which express the admonition and restraint that a classification to be justified must not be unreasonable or arbitrary? To answer, a comparison of the coals becomes necessary. In making it, the first fact we encounter is a difference in their names, and, as names of things are considered significant of their attributes, the names, it may be assumed, announce a difference in attributes, and as dependent upon it, a difference in uses. Resemblances, however, are alleged in the bill and not denied in the answer, which, it is alleged, essentially assimilate the coals and make arbitrary the selection of one for taxation and not the other.
The detail is interesting. It includes the description of the processes of nature in the formation of the coals, their particular properties, composition and appearances, and the localities of their production. Anthracite coal, it is said, is found only in nine counties out of sixty-seven in the State of Pennsylvania; bituminous coal in twenty-four counties. Both are sold, is the allegation, to places outside of the state and in competition for fuel purposes, and that the anthracite in certain sizes, termed steam sizes, competes with bituminous coal, and certain subgrades (intermediate grades) of the latter with certain subgrades of anthracite.
a choice between them even as fuels. By disregarding that difference and the greater ones which exist, and by dwelling on competition alone, it is easy to erect an argument of strength against the taxation of one and not of the other. But this may not be done. The differences between them are a just basis for their different classification, and the differences are great and important. They differ even as fuels; they differ fundamentally in other particulars. Anthracite coal has no substantial use beyond a fuel; bituminous coal has other uses. Products of utility are obtained from it. The fact is not denied, and the products are enumerated, and the extent of their use. * They are therefore incentives to industries that the state in natural policy might well hesitate to obstruct or burden, and to yield to the policy or consider it is well within the concession of the power of the state expressed in the cases we have cited. The distinction in the treatment of the respective coals being within the power conceded by the cases to the state, it has logical and legal justification and is necessarily not unreasonable or arbitrary. We concur, therefore, in the decision of the supreme court of the state sustaining the Act of 1921.
Anthracite coal, as we have observed, is asserted to be found in only nine counties in the state, and practically nowhere else in the United States. The fact, it is further said, gives the state a monopoly of it, and that a tax upon it is levying a tribute upon the consumption of other states, and nine of them have appeared by their Attorneys General to assail it as illegal and denounce it as an attempt to regulate interstate commerce. In emphasis of the contention, the governor of the state is quoted as urging the tax because of that effect. The fact, tribute upon the consumers of the coal in other states, is pronounced inevitable, as, it is the assertion, 80% of the total production is shipped to other states, and that this constitutes its "major market." And the dependency upon Pennsylvania is represented as impossible of evasion or relief. Anthracite coal, is the assertion, has become a prime necessity of those states, "particularly for domestic purposes," and even "municipal laws and ordinances have been passed forbidding the use of other coal for heating purposes."
The representation is graphic, but the first impression it makes is that it is in contradiction of the contention of the plaintiff in error that the tax discriminates against anthracite coal, for certainly there cannot be that complete competition and identity of use as a fuel between that coal and bituminous coal when there is such a difference between them as fuels that the use of one is enjoined by law and the other, in effect, prohibited.
This however, only in passing. We will consider the contentions of the attorneys general independently of the contentions of plaintiff in error and assume that the antagonism, if existing, between the contentions may in some way not now appearing have reconciliation.
in other states. We are unable to discern in the fact any materiality or pertinency, nor in the fact that Pennsylvania has a monopoly (if we may use the word) of the coal. Whether any statute or action of a state impinges upon interstate commerce depends upon the statute or action, not upon what is said about it or the motive which impelled it, and a tax upon articles in one state that are destined for use in another state cannot be called a regulation of interstate commerce, whether imposed in the certainty of a return from a monopoly existing or in the doubt and chances because of competition. The action of the state as a regulation of interstate commerce does not depend upon the degree of interference; it is illegal in any degree.
We may therefore disregard the adventitious considerations referred to and their confusion, and, by doing so, we can estimate the contention made. It is that the products of a state that have, or are destined to have, a market in other states are subjects of interstate commerce, though they have not moved from the place of their production or preparation.
growth -- that is, the fruits unpicked, the cotton and wheat ungathered, hides and flesh of cattle yet "on the hoof," wool yet unshorn, and coal yet unmined because they are in varying percentages destined for and surely to be exported to states other than those of their production.
However, we need not proceed further in speculation and argument. Ingenuity and imagination have been exercised heretofore upon a like contention. There is temptation to it in the relation of the states to the federal government, being yet superior to the states in instances or, rather, having spheres of action exclusive of them. The instances cannot in all cases be precisely defined. And the uncertainty attracts disputes, and is availed of to assert or suppose collisions which in fact do not exist. There is illustration in the cases. In Coe v. Errol, 116 U. S. 517, the precise contention here made was passed upon and rejected. It involved the taxing power of a state, and the property subject to it (timber cut in its forests) was intended for exportation and had progressed nearer to exportation than the coal in the present case.
"whether the products of a state (in this case, timber cut in its forests) are liable to be taxed like other property within the state, though intended for exportation to another state, and partially prepared for that purpose by being deposited at a place of shipment, such products being owned by persons residing in another state."
"Do the owner's state of mind in relation to the goods -- that is, his intent to export them and his partial preparation to do so -- exempt them from taxation."
begin to be governed and protected by the national law of commercial regulation, and that moment seems to us to be a legitimate one for this purpose, in which they commence their final movement for transportation from the state of their origin to that of their destination."
"nor is exportation begun until they are committed to the common carrier for transportation out of the state to the state of their destination, or have started on their ultimate passage to that state."
Until then, it was said, they were a part of the general mass of property of the state, and subject to its jurisdiction.
Other cases have decided the same and afford illustrations of it. Cornell v. Coyne, 192 U. S. 418; Susquehanna Coal Co. v. South Amboy, 228 U. S. 665; Bacon v. Illinois, 227 U. S. 504; General Oil Co. v. Crain, 209 U. S. 211; United Mine Workers v. Coronado Coal Co., 259 U. S. 344.
The effect of these cases is attempted to be evaded by the assertion that the statute, in imposing the tax when the coal "is ready for shipment or market,' is a plain and intentional fraud upon the commerce clause." We cannot accept the accusation as justified, or that the situation of the coal can be changed by it and as moving in interstate commerce when it is plainly not so moving. The coal therefore is too definitely situated to be misunderstood, and the cases cited to establish a different character and subjection need not be reviewed.
"We find that anthracite coal differs from bituminous coal in its physical properties, namely, the amount of fixed carbon, the amount of volatile matter, color, luster, and structural character. The percentage of fixed carbon in anthracite is much higher, and the percentage of volatile matter much lower than in bituminous coal. Anthracite coal is hard, compact, and comparatively clean and free from dust, while bituminous coal is softer, dusty and dirty."
The court also observed that it was persuasive of the difference between the coals that the Congress of the United States and the Canadian Parliament in levying import taxes put the coals in different classes, and that the railroads of Pennsylvania so separated them, and that therefore, quoting another, the classification was "one which actually exists in the business world."

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School is from Nursery/Preschool upto Primary School (I-V) . The School is a Coed Day School, with classes from Playgroup to V. It is an English Medium school.
Know about Akshara Abhayasa School, Shaikpet, Hyderabad: Board & Curriculum, Admission Procedure, Fees & Fee Structure, Contact Details, Facilities and Ranking, Rating and Reviews.
Akshara Abhayasa School, Shaikpet Hyderabad, is a Primary School (I-V). The School is a Coed Day School, with classes from Playgroup, Nursery/Preschool/Kindergarten to V. It is an English Medium school. The school is located in Shaikpet area of Hyderabad. Akshara Abhayasa School, Shaikpet was established in . It is a Private School and is managed by .
Akshara Abhayasa School Shaikpet is a Coed Day School, which services the educational need of over students from Playgroup through V. The classes in Akshara Abhayasa School for every academic year starts from April.
Checkout everything about Akshara Abhayasa School, Shaikpet, Hyderabad Telangana. The best gift you can give to your child is a right school for his/her academic, co-curricular and overall development. Read about Akshara Abhayasa School Admission Procedure & Policy, Important Dates for Admission, Akshara Abhayasa School Fee Structure, School Curriculum & affiliation, medium of instruction, level, Extracurricular Activities, Facilities, Alumni, Faculty, Contact Details and other important information. You can also explore list of best schools in Hyderabad or checkout Best Schools in Shaikpet Hyderabad.
The School has students enrolled from Playgroup to V. Find below the admission schedule, procedure, Contact Details, documents required and instructions for parents for Akshara Abhayasa School Admission.
In this section, we will answer the common questions like What is the admission process like and what are the key dates? Is their any admission test? Will School also hold an interview or an interaction? What is the age criterion for admission to Akshara Abhayasa School, Shaikpet for the upcoming academic year?
Refer below for Akshara Abhayasa School, Shaikpet fee structure and current fees.
The Academic session at Akshara Abhayasa School starts from April. The School provides education to students from Playgroup to V.
Akshara Abhayasa School, Shaikpet is a coed English medium Day School which offers curriculum, from Playgroup to V.
In this section, we will answer What board of education does Akshara Abhayasa School, Shaikpet intend to follow over the years?
Studied or worked here? Share Your Experience, Review Akshara Abhayasa School, Shaikpet Now.
We had terrible experience in this school. my son a toddler was admitted in play group in Jan - Feb 2018 and we were totally disappointed and had actually changed the school in less than 3 months. The challenges we faced were the school management lied to us. my kid is fast learner and whatever we teach him he learn quickly but in school he was not learning rather even forgetting what we thought him. He never enjoyed and every day when we picked him he was very dirty (no hygiene), hungry and also thirst always. they lie you by introducing some other teacher and class teacher. Will strictly recommend to avoid this school.
Nice school. Very good teachers. Good activities for kids. Very few schools interact with parents these days and Akshara abhyasa is one such school. Will definitely recommend this school.

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If a car crash happens in Paris, it is not exactly rocket science to conclude that the damage to the car has occurred in Paris. But establishing the location of the place where damage occurred is more difficult in cases that involve financial losses. Yet in litigation, this is critical for the determination of the competent court and the applicable law. In Kolassa/Barclays Bank, the CJEU has given a preliminary ruling on the location of financial losses.
Harald Kolassa (domiciled in Austria) invested in certificates issued by Barclays Bank plc (registered in the United Kingdom) through his online bank direktanlage.at (established in Austria). When the certificates transpired to be worthless, Kolassa brought proceedings against Barclays Bank in Austria claiming damages for his losses. The question arose whether the Austrian courts had jurisdiction under the Brussels I Regulation (establishing grounds for special jurisdiction in matters relating to tort). Accordingly, Kolassa’s financial losses needed to be located. The CJEU held that ‘the courts where the applicant is domiciled’ (i.e. the Austrian courts) have jurisdiction as the loss occurred ‘directly in the applicant’s bank account held with a bank established within the area of jurisdiction of those courts.’ The CJEU argued that this rule would strengthen the legal protection of both applicant and defendant.
In our opinion, Kolassa/Barclays Bank achieved the opposite: the CJEU failed to clarify and might have even exacerbated the existing uncertainties regarding the location of financial losses. First, the CJEU refers to the vague term ‘bank account’ and fails to specify whether it meant to refer to Kolassa’s cash account or to Kolassa’s securities account (we believe in the current case losses have been suffered in Kolassa’s securities rather than his cash account). In Kolassa/Barclays Bank, these accounts were held in the same place. However, it is conceivable that these accounts are separate and held with different entities. Therefore, it is problematic that the CJEU omits to indicate which connecting factor is of overriding importance. Second, the decision is at odds with the rationale of the Brussels I Regulation and with the traditionally reluctant stance of the CJEU to accept jurisdiction of the court of the claimant’s domicile. In that vein, any derogation from the principle that defendants should be sued in the courts of their own domicile should be based on a close connection between the court seised and the action. Such connection should avoid the defendant being sued in a place he could not have reasonably foreseen. In contrast, the location of a ‘bank account’ could be accidental, as it would depend on incidental factual circumstances (such as the place of the relevant financial institution’s back office), on the applicable (private international) law (which still differs from country to country), and could be influenced by the holder of the account. Therefore, the CJEU’s choice to use the relevant ‘bank account’ as connecting factor does not necessarily entail a close connection between the court seised and the action, while the defendant cannot reasonably foresee in which place he might be sued.
In the meanwhile, the Dutch Supreme Court has referred to the CJEU for another preliminary ruling on the location of financial losses in Universal Music International Holding BV/X. In light of the current state of affairs, one can only hope that the CJEU sees reason to reconsider or, at least, to clarify the decision on the location of financial losses that it rendered in Kolassa/Barclays Bank. This would be to the benefit of issuers and investors alike.
Finance: inspiration for private international lawyers?
Will EU copyright law lose all of its public?

matches: CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU


(1) A bona fide encumbrance taken for purposes of security.
(2) Agricultural land when acquired as a gift, either by grant or devise, by a bona fide educational, religious or charitable nonprofit corporation.
(3) Agricultural land acquired by a corporation or a limited liability company in such acreage as is necessary for the operation of a nonfarming business. Such land may not be used for farming except under lease to one or more natural persons, a family farm corporation, authorized farm corporation, family trust, authorized trust or testamentary trust. The corporation shall not engage, either directly or indirectly, in the farming operation and shall not receive any financial benefit, other than rent, from the farming operation.
(4) Agricultural land acquired by a corporation or a limited liability company by process of law in the collection of debts, or pursuant to a contract for deed executed prior to the effective date of this act, or by any procedure for the enforcement of a lien or claim thereon, whether created by mortgage or otherwise, if such corporation divests itself of any such agricultural land within 10 years after such process of law, contract or procedure, except that provisions of K.S.A. 9-1102, and amendments thereto, shall apply to any bank which acquires agricultural land.
(6) Agricultural land which is acquired by a trust company or bank in a fiduciary capacity or as a trustee for a nonprofit corporation.
(7) Agricultural land owned or leased or held under a lease purchase agreement as described in K.S.A. 12-1741, and amendments thereto, by a corporation, corporate partnership, limited corporate partnership or trust on the effective date of this act if: (A) Any such entity owned or leased such agricultural land prior to July 1, 1965, provided such entity shall not own or lease any greater acreage of agricultural land than it owned or leased prior to the effective date of this act unless it is in compliance with the provisions of this act; (B) any such entity was in compliance with the provisions of K.S.A. 17-5901, prior to its repeal by this act, provided such entity shall not own or lease any greater acreage of agricultural land than it owned or leased prior to the effective date of this act unless it is in compliance with the provisions of this act, and absence of evidence in the records of the county where such land is located of a judicial determination that such entity violated the provisions of K.S.A. 17-5901, prior to its repeal, shall constitute proof that the provisions of this act do not apply to such agricultural land, and that such entity was in compliance with the provisions of K.S.A. 17-5901, prior to its repeal; or (C) any such entity was not in compliance with the provisions of K.S.A. 17-5901, prior to its repeal by this act, but is in compliance with the provisions of this act by July 1, 1991.
(8) Agricultural land held or leased by a corporation or a limited liability company for use as a feedlot, a poultry confinement facility or rabbit confinement facility.
(9) Agricultural land held or leased by a corporation for the purpose of the production of timber, forest products, nursery products or sod.
(10) Agricultural land used for bona fide educational research or scientific or experimental farming.
(11) Agricultural land used for the commercial production and conditioning of seed for sale or resale as seed or for the growing of alfalfa by an alfalfa processing entity if such land is located within 30 miles of such entity's plant site.
(12) Agricultural land owned or leased by a corporate partnership or limited corporate partnership in which the partners associated therein are either natural persons, family farm corporations, authorized farm corporations, limited liability agricultural companies, family trusts, authorized trusts or testamentary trusts.
(13) Any corporation, either domestic or foreign, or any limited liability company, organized for coal mining purposes which engages in farming on any tract of land owned by it which has been strip mined for coal.
(14) Agricultural land owned or leased by a limited partnership prior to the effective date of this act.
(15) Except as provided by K.S.A. 17-5908, as it existed before the effective date of this act, and K.S.A. 1998 Supp. 17-5909, agricultural land held or leased by a corporation or a limited liability company for use as a swine production facility in any county which, before the effective date of this act, has voted favorably pursuant to K.S.A. 17-5908, as it existed before the effective date of this act, either by county resolution or by the electorate.
(16) Agricultural land held or leased by a corporation, trust, limited liability company, limited partnership or corporate partnership for use as a swine production facility in any county where the voters, after the effective date of this act, have voted pursuant to K.S.A. 17-5908, and amendments thereto, to allow establishment of swine production facilities within the county.
(17) Agricultural land held or leased by a corporation, trust, limited liability company, limited partnership or corporate partnership for use as a dairy production facility in any county which has voted favorably pursuant to K.S.A. 17-5907, and amendments thereto, either by county resolution or by the electorate.
(18) Agricultural land held or leased by a corporation or a limited liability company used in a hydroponics setting.
(b) Production contracts entered into by a corporation, trust, limited liability company, limited partnership or corporate partnership and a person engaged in farming for the production of agricultural products shall not be construed to mean the ownership, acquisition, obtainment or lease, either directly or indirectly, of any agricultural land in this state.
(c) Any corporation, trust, limited liability company, limited partnership or corporate partnership, other than a family farm corporation, authorized farm corporation, limited liability agricultural company, family farm limited liability agricultural company, limited agricultural partnership, family trust, authorized trust or testamentary trust, violating the provisions of this section shall be subject to a civil penalty of not more than $50,000 and shall divest itself of any land acquired in violation of this section within one year after judgment is entered in the action. The district courts of this state may prevent and restrain violations of this section through the issuance of an injunction. The attorney general or district or county attorney shall institute suits on behalf of the state to enforce the provisions of this section.
(d) Civil penalties sued for and recovered by the attorney general shall be paid into the state general fund. Civil penalties sued for and recovered by the county attorney or district attorney shall be paid into the general fund of the county where the proceedings were instigated.
History: L. 1981, ch. 106, § 2; L. 1986, ch. 96, § 3; L. 1987, ch. 368, § 2; L. 1988, ch. 99, § 56; L. 1991, ch. 76, § 10; L. 1994, ch. 130, § 4; L. 1994, ch. 331, § 2; L. 1996, ch. 225, § 2; L. 1998, ch. 143, § 44; L. 2012, ch. 141, § 2; July 1.
Section was amended twice in 1986 session, for second amendment, see 17-5904a.


TROY RAYNARD ALEXANDER, Plaintiff, v. GEORGE KENWORTHY, MARK BARNHILL, and MS. BECK, Defendants.
This matter comes before the court on the motion for summary judgment (DE 35) pursuant to Federal Rule of Civil Procedure 56 filed by defendants Tabor Correctional Institution ("Tabor") Unit Manager Mark Barnhill ("Barnhill"), Nurse Beck ("Beck"), and Correctional Administrator George Kenworthy ("Kenworthy"). Plaintiff responded to defendants' motion. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants defendants' motion.
On January 19, 2011, plaintiff, a former state inmate, was assigned to cell KE42A at Tabor. Beck Aff. ¶ 6. At the time plaintiff was transferred to cell KE42A, the cell had been vacant for a period of approximately twenty-nine (29) days. Id. 7.
Plaintiff notified the court on January 31, 2014, that he no longer was in North Carolina Department of Public Safety custody. See (DE 42).
On April 30, 2011, plaintiff declared a medical emergency complaining of a possible spider bite or "boil" on his elbow. Id. ¶ 10 and Attach. p. 32. That same day, plaintiff was evaluated by nurse Theresa Gore ("nurse Gore") who noted that the wound was not draining. Id. ¶ 10 and Attach. p. 34. After examining plaintiff, nurse Gore provided him with antibiotics, and instructed him to apply a warm compress to the infected area and to change the dressing on the area daily. Id.
Nurse Gore again saw plaintiff on May 3, 2011. Id. ¶ 12 and Attach. p. 33. Gore noted that the infected area was hot, swollen, and reddened. Id. Gore then changed plaintiff's wound dressing and contacted the unit physician who authorized plaintiff to be transported to the local emergency department at Columbus Regional Hospital for treatment. Id. At the hospital, plaintiff's wound was cultured and a physician drained the wound. Id. ¶ 2 and Attach. pp. 15, 18. Upon plaintiff's discharge from the hospital, medical professionals instructed him to elevate his arm and to continue to take his prescribed medication. Id. and Attach. p. 19.
On May 12, 2011, Tabor medical staff was informed that plaintiff's infection tested positive as a methicillin-resistant staphylococcus aureus ("MRSA") infection. Id. ¶ 15 and Attach. p. 26. Subsequent to plaintiff's MRSA diagnosis, Tabor medical staff continued to treat plaintiff's infection with antibiotics and regular dressing changes. Id. ¶ 16 and Attach. pp. 27-31. Medical staff considered plaintiff's MRSA infection healed as of May 21, 2011. Id. ¶ 17, and Attach. p. 28.
On August 3, 2011, plaintiff filed this action pursuant to 42 U.S.C. § 1983, against defendants alleging that defendants acted with deliberate indifference to his prison conditions in violation of the Eighth Amendment to the United States Constitution. Specifically, plaintiff asserted that defendants did not properly clean cell KE42A prior to assigning the cell to plaintiff. Plaintiff contends that the cell previously was occupied by another inmate, Roy Gibson, who was battling a staphylococcal ("staph") infection, which ultimately lead to the amputation of Gibson's leg. Plaintiff alleged that Kenworthy, Barnhill, and Beck were aware that inmate Gibson had a serious staph infection, but refused to clean or disinfect cell KE42A or to take any other precaution to prevent the spread of the infection. Plaintiff further alleged that defendants conspired to hide the MRSA infection outbreak. In addition to the cell-related claim, plaintiff contends that Beck acted with deliberate indifference to his serious medical needs after plaintiff contracted his MRSA infection. As relief, plaintiff requested monetary damages, including compensatory and punitive damages. Plaintiff also requested a declaratory judgment and injunctive relief.
Plaintiff also refers to this inmate as Roy Simpsons and Roy Simpson. For the purposes of this order, the court will refer to this inmate as Roy Gibson.
Barnhill and Beck, as well as Kenworthy, subsequently filed respective motions to dismiss arguing that plaintiff failed to state a claim upon which relief may be granted. On February 13, 2013, the court entered an order denying defendants' motions to dismiss. As part of that order, the court conducted a frivolity review of a new First Amendment access to courts claim plaintiff raised in response to defendants' motions to dismiss. The court dismissed as frivolous plaintiff's newly asserted claim.
On August 12, 2013, defendants filed a motion for summary judgment arguing that plaintiff cannot establish a constitutional violation. Alternatively, defendants assert the affirmative defense of qualified immunity. The motion was fully briefed.
Defendants assert the defense of qualified immunity. Government officials are entitled to qualified immunity from civil damages so long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In other words, a government official is entitled to qualified immunity when (1) the plaintiff has not demonstrated a violation of a constitutional right, or (2) the court concludes that the right at issue was not clearly established at the time of the official's alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Plaintiff alleges that defendants acted with deliberate indifference to the condition of his cell at Tabor. "In order to make out a prima facie case that prison conditions violate the Eighth Amendment, a plaintiff must show both '(1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.' " Strickler v. Waters,989 F.2d 1375, 1379 (4th Cir. 1993) (quoting Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991)). The Supreme Court has explained that the first prong is an objective one-the prisoner must show that "the deprivation of [a] basic human need was objectively 'sufficiently serious' "-and the second prong is subjective-the prisoner must show that "subjectively 'the officials act[ed] with a sufficiently culpable state of mind.' " See Strickler, 989 F.2d at 1379 (quotations omitted).
Assuming without deciding that plaintiff can satisfy the objective prong of the Eighth Amendment test, the court focuses on the subjective prong of the Eighth Amendment test-whether defendants acted with deliberate indifference to plaintiff's serious medical needs. "Deliberate indifference entails something more than mere negligence, . . . [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." See Farmer v. Brennan, 511 U.S. 825, 835 (1994). It requires that a prison official actually know of and disregard an objectively serious condition, medical need, or risk of harm. See Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995); Hall v. Williams, No. 91-6007, 1992 WL 71566 *4 (4th Cir. Apr. 13, 1992) ("In Eighth Amendment cases involving conditions of confinement, deliberate indifference may be shown when prison authorities were aware of the objectively cruel conditions and failed to remedy them.").
Although the parties present conflicting evidence as to whether cell KE42A was cleaned prior to plaintiff's assignment to the cell, there is no evidence suggesting that defendants knew plaintiff's cell had not been cleaned prior to plaintiff's transfer to the cell or that defendants disregarded any risk of the transmission of MRSA. Notably, plaintiff did not complain to prison officials about the condition of his cell until after he contracted the MRSA infection. (See DE 25, Ex. 5, p. 4). Moreover, defendant Barnhill's response to plaintiff's cell sanitation complaint indicates that prison officials believed plaintiff's cell had been sanitized prior to plaintiff's arrival. See id. The record additionally reflects that inmates are responsible for cleaning their own cell. Beck Aff. ¶ 7. Plaintiff does not dispute that he was provided cleaning supplies while in cell KE42A or allege that he made any request for cleaning supplies that was denied. Cf. Williams v. Griffin, 952 F.2d 820, 826 (4th Cir. 1991) (prisoner sufficiently raised factual dispute as to deliberate indifference as to conditions of confinement where reports in the record showed that prison officials were made aware of need for critical repairs to prisoner cells but did not take corrective action); see also Myrick v. Anglin, 496 F. App'x 670, 675-76 (7th Cir. 2012) (finding inmate failed to state a claim where inmate alleged he did not receive the specific cleaning supplies he requested, but did not allege that he was unable to clean his cell with supplies available to him). Based upon the foregoing, the court finds that plaintiff failed to set forth sufficient facts to create a genuine issue of material fact as to whether a constitutional violation occurred.
The court notes that the parties also dispute whether plaintiff was provided with a new mattress, pillow, and bed linens prior to being transferred to KE42A.
The court next addresses whether there is any causal link between the alleged unsanitary condition of plaintiff's cell and plaintiff's contraction of MRSA. The parties present conflicting evidence as to whether the prior occupant of cell KE42A actually had MRSA. However, even if the prior occupant of cell KE42A did have MRSA, the record reflects that cell KE42A was vacant for twenty-nine (29) days prior to plaintiff's occupancy. Beck Aff. ¶ 7. The record further reflects that plaintiff resided in cell KE42A from January 9, 2011, through April 20, 2011, without any medical complaints pertaining to a skin infection. Id. ¶ 9. As a result, the court finds that the evidence in the record is insufficient to establish a causal link between plaintiff's MRSA infection and the alleged unsanitary condition of his cell. See, e.g., Gambrell v. Preston, No.2:06-2943-CMC-RSC, 2007 WL 2302579, at *5 (D.S.C. Aug. 9, 2007) ("[T]o the extent that the plaintiff claims that he contracted his infection because the ACDC is not clean, he did not indicate that any defendant caused the unsanitary conditions, or presented any proof that his infection was causally linked to the alleged conditions.") Because plaintiff cannot establish that any defendants' action or inaction resulted in plaintiff contracting MRSA, he fails to establish a constitutional violation.
Beck testified that she has knowledge of the medical condition of the inmate previously housed in cell KE42A and that the inmate did not have MRSA and/or suffer a leg amputation. Beck Aff. ¶ 8. Plaintiff, however, has submitted conclusory affidavits from other inmates stating that the prior occupant of cell KE42A had MRSA and suffered a leg amputation. Compl. Attach. Plaintiff states that he has been unable to locate inmate Roy Gibson to prove that this inmate did in fact suffer from a MRSA infection. Pl.'s Resp. p. 2.
Finally, plaintiff alleges that defendants' failure to clean cell KE42A violated North Carolina Department of Public Safety ("DPS") policy. However, the mere violation of a prison regulation does not automatically rise to the level of a constitutional violation cognizable under § 1983. Sandin v. Conner, 515 U.S. 472, 481-82 (1995) (stating that prison regulations are primarily designed to guide correctional officials in the administration of a prison and not designed to confer rights on inmates); Williams v. Benjamin, 77 F.3d 756, 766 n.5 (4th Cir. 1996) (finding that even if the guards were found to have violated the prison's four-point-restraint policy, the plaintiff would not automatically prevail on his Eighth Amendment claim). Thus, the alleged policy violation is insufficient to establish a constitutional violation.
Based upon the foregoing, the court finds that plaintiff is unable to establish that defendants acted with deliberate indifference to his prison conditions because there is no evidence establishing that defendants knew that cell KE42A was not sufficiently cleaned prior to plaintiff's transfer to the cell. Nor is there evidence linking a prior case of MRSA in cell KE42A with plaintiff's contraction of the infection almost five months later. Thus, plaintiff failed to establish the subjective prong of the Eighth Amendment test, and defendants are entitled to qualified immunity for this claim.
To the extent plaintiff alleges that defendants conspired to hide a MRSA infection outbreak at Tabor, plaintiff has provided no evidence to support such a claim. Instead, plaintiff relies upon the conclusory allegations of conspiracy set forth in his complaint, which are not sufficient to state a conspiracy claim. See Wiggins v. 11Kew Garden Court,497 Fed. Appx. 262, 264 (4th Cir. 2012) ("To properly plead an unconstitutional conspiracy, a plaintiff must assert facts from which a conspiratorial agreement can be inferred."); Miller v. DeMarino, No. 1:01CV183, 2002 WL 32096597, at *1 (N.D.W. Va. Apr. 24, 2002) (finding that naked assertions of a conspiracy are not sufficient to support an action pursuant to 42 U.S.C. § 1983), aff'd, 45 F. App'x 292 (4th Cir. Sep. 10, 2002). Thus, the court GRANTS defendants' motion for summary judgment for this claim.
Plaintiff contends that defendants purposefully delayed medical treatment for his MRSA infection resulting in the need for surgical intervention. To state a claim for relief under the Eighth Amendment of the United States Constitution arising out of medical care, a plaintiff must establish that a prison official was deliberately indifferent to a serious condition, medical need, or risk of harm in the context of the same two-pronged Eighth Amendment test as set forth above. See Short v. Smoot, 436 F.3d 422, 427 (4th Cir. 2006).
Plaintiff's medical records reflect that he received prompt and continuous medical care for his MRSA infection. In particular, the record reflects that plaintiff was immediately evaluated for his boil-related complaint on April 30, 2011, by nurse Gore who provided treatment. Gore followed up with plaintiff a few days later, and plaintiff ultimately was transported to the Columbus County emergency department for treatment and drainage of the boil. Back at Tabor, medical staff continued to treat plaintiff's wound as instructed by the hospital until the wound healed on May 21, 2011. The evidence in the record does not reflect, and plaintiff has not provided any evidence to suggest, that Beck, or any Tabor medical staff member, disregarded plaintiff's medical needs. At most, plaintiff alleges a disagreement regarding the appropriate form of treatment for his MRSA infection, which is insufficient to state a claim for deliberate indifference. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). Thus, the court finds that plaintiff fails to establish a constitutional violation, and defendants are entitled to qualified immunity for this claim.
Although plaintiff complains the prison officials refused to clean his cell after he contracted MRSA, there is no indication that plaintiff was exposed to MRSA after his MRSA infection healed.
The court notes that plaintiff fails to establish a supervisor liability claim against defendants Kenworthy and Barnhill because, as supervisory officials, they were entitled to rely upon the judgment of the medical staff to determine the course of treatment. Shakka, 71 F.3d at 167.
Plaintiff alleges that he was transferred from Tabor in retaliation for filing grievances. For an inmate to state a colorable claim of retaliation, the alleged retaliatory action must have been taken with regard to the exercise of some constitutionally protected right, or the retaliatory action itself must violate such a right. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Additionally, a plaintiff must allege specific facts supporting the claim of retaliation; bare assertions of retaliation do not establish a claim of constitutional dimension. Adams, 40 F.3d at 74-75. Because plaintiff does not have a constitutional right to be housed in a particular prison, Meachum v. Fano, 427 U.S. 215, 223-224 (1976), or to participate in a grievance procedure, Daye v. Rubenstein, 417 F. App'x 317, 319 (4th Cir. 2011), he fails to state a claim for retaliation.
Any claims for injunctive and declaratory relief become moot when an inmate no longer is subjected to the allegedly unconstitutional conditions of confinement. See Williams v. Griffin, 952 F.2d 820, 825 (4th Cir. 1991). Where the court's docket reflects that plaintiff no longer is incarcerated at Tabor, all claims for injunctive and declaratory relief are moot.
For the foregoing reasons, defendants' motion for summary judgment (DE 35) is GRANTED. The Clerk of Court is DIRECTED to close this case.


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sanctos ferreis collariis connexos cruentus carnifex imperat duci, Ald. 49), 489, 69. (3) hell :-- Hé héht ðæt wítehús wræcna (the fallen angels) bídan, Cd. 3, 21; Gen. 39 : 304, 11 ; Sat. 628. On wráþra wíc . . . , on wítehús, Exon. Th. 94, 7 ; Cri. 1536.
wíte-lác, es; n. Punishment, torment, pain :-- Wurdon tó axan eorðan wæstma, efne swá wíde swá ða wítelác (the burning and terror at the destruction of Sodom and Gomorrah) geræ-acute;hton, Cd. Th. 154, 12 ; Gen. 2554. Weras básnedon wíteloccas (wíteláces, Grn.) weán under weallum, 146, 5 ; Gen. 2417.
wíte-leás; adj. Not having to pay a fine :-- Gelæ-acute;ste æ-acute;lc wuduwe ða heregeata binnan twelf mónðum, búton hire æ-acute;r tó onhagige, wíteleás, L. C. S. 74; Th. i. 416, 18.
witendlíce ; adv. Surely, certainly :-- Witendlíce hé getrymde ymb&dash-uncertain;hwyrft eorðan etenim firmavit orbem terrae, Ps. Spl. 92, 2 : 40, 10 : 88, 6. Cf. witodlíce.
wíte-ræ-acute;den[n], e; f. I. punishment :-- Ðes cyning bebeád ðæt feówertiglíce fæsten healden beón æ-acute;r Eástrum be wíteræ-acute;denne jejunium quadraginta dierum observari praecepit . . . in transgressores dignas et competentes punitiones proposuit, Bd. 3, 8 ; S. 531, 11. II. fine. v. wíte, I b :-- Ut sit tuta . . . regalibus tributis majoribus et minoribus, sive taxationibus quod nos dicimus wíteréden, Cod. Dip. B. ii. 84, 7. Ego Túnburht episcopus aliquam partem terrae donabo liberam ab omnibus terrenis difficultatibus omnium gravitudinum . . . a taxationibus quod dicimus wíterédenne, Cod. Dip. Kmbl. v. 121, 25. Bíde mon mid ðære wíteræ-acute;denne óþ ðæt se wér gegolden sié, L. In. 71 ; Th. i. 148, 4. Náh hé ðæ-acute;r náne wíteræ-acute;denne he cannot exact any fines, 50; Th. i. 134, 4.
wíte-scræf, es; n. A den of torment, hell :-- Gewít ðú áwyrgda in ðæt wítescræf, Cd. Th. 308, 12 ; Sat. 691.
wíte-steng, es; m. A pole used for punishment or torture :-- Wítestengces, róde eculei, wítestenges eculei, gabuli, Hpt. Gl. 478, 70-73 : Anglia xiii. 34, 169. v. þrípel.
wíte-stów, e; f. A place of punishment or torment, hell :-- Upp cómon sume ðara ðýstra gásta of ðære neowolnesse and of ðære wítestówe (de abysso illa flammivoma), Bd. 5, 12; S. 628, 41. Nis hér (in hell) nú næ-acute;nig wóp, swá hit æ-acute;r gewunelíc wæs on ðisse wítestówe, Blickl. Homl. 85, 29.
wíte-swinge, an; f. A stroke given as a punishment, chastisement :-- Ongæt gumena aldor hwæt him Waldend wræc wíteswingum, Cd. Th. 112, 2 ; Gen. 1864.
wíte-þeów, es; m. One who had been condemned to slavery for crime, or from inability to pay the fines incurred for violation of the law. For cases which involved loss of freedom, v. þeów. (1) literal :-- Gif hwelc man biþ wíteþeów (or adj. ? v. next word) níwan geþeówad, L. In. 48 ; Th. i. 132, 7. (2) figurative, one in hell :-- Bring ús hæ-acute;lo líf wérigum wíteþeówum, Exon. Th. 10, 12; Cri. 151.
wíte-þeów; adj. In slavery as a consequence of crime :-- Be wíteðeówes monnes slege. Gif wíteþeów Englisc mon hine forstalie, hó hine mon, L. In. 24; Th. i. 118, 6. Gif ðæ-acute;r hwylc wíteðeów man sý ðe hió geðeówede, hió gelýfð tó hyre bearnon ðæt hí hine willon lýhtan for hyre sáulle, Cod. Dip. Kmbl. vi. 132, 8. Wíteþeówne monnan Wyliscne mon sceal bedrífan be twelf hídum tó swingum, L. In. 54; Th. i. 138, 3. Ic wullan ðæt man gefreógen æ-acute;lcne wíteðeówne man on æ-acute;lcum ðæra landæ ðæ ic mínon freóndon bæcwedden hæbbæ, Cod. Dip. Kmbl. iii. 128, 10. Ðæt man freóge on æ-acute;lcum túnæ æ-acute;lcne wítæþæównæ mann ðæ undær hiræ geðeówuð wæs, 360, 6. Ðis is Ælfsiges biscopes cwide. Ðæt is æ-acute;rest, ðæt ic wille ðæt man gefreóge æ-acute;lcne wíteþeówne mannan ðe on ðam biscopríce sié for hine and for his cynehláford, Cod. Dip. B. ii. 329, 17 : L. Ath. i. proem.; Th. i. 198, 9. Wéron ðæ-acute;r þreó wíteþeówe men and þreó þeówberde, Cod. Dip. Kmbl. v. 152, 8. Be wíteðeówum mannum, L. In. 48; Th. i. 132, 6. Cf. wíte-fæst, and see Kemble's Saxons in England, i. 200, Grmm. R. A. 328.
wítga-dóm, wítgian. v. wíteg-dóm, wítegian.

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On January 26 at 6 pm Literary Club of National Library of Udmurt Republic is hosting a presentation of a new book by V. Shulikovskaya “Notes of a Misanthrope. The Parade of Imperfect People”. The event will take place at Republican Library for Children and Youth (Pushkinskaya St., 200).
Valentina Valentinovna Shulikovskaya was born in Kazan to the family of mathematicians. She graduated from Izhevsk school № 30 and the Mathematical Faculty of the Udmurt State University; presently she works at the Department of Mathematical Methods in Economics (Udmurt State University). Since 1999 she has been contributing to the scientific publishing center “Regular and Chaotic Dynamics” and its publishing division “Institute of Computer Science” (Moscow : Izhevsk) translating scientific publications from English, German, French, Italian and other languages. Beside a good number of scientific-methodological papers, V. Shulikovskaya has authored a number of works in belle-lettre style.
As a researcher V. Shulikovskaya believes that “the evolution of mankind will once bring us to the reexamination and reformulation of the concept of time, to the voluntary transformation of its common perception”. How will it all turn out? What difficulties and moral problems will it cause? These issues were covered by V. Shulikovskaya at the Russian Interdisciplinary Temporology Seminar at Moscow State University (see Institute for Time Nature Explorations for more information) and in the collection of fiction “Real Time Travellers” (Izhevsk, 2008).
According to V. Shulikovskaya, the idea of modern science, originating from the Renaissance, must sooner or later leave the world scene as any other phenomenon developing in time. And if we try to understand what will take its place, we will realize that the most promising positions are held by the fields developing on the verge of science and parascience. This point of view has been expressed in a number of scientific publications and the satirical book “The Adventures of a Brave Postgraduate Student” (Izhevsk : 2012).
In 2014 V. Shulikovskaya published the third fiction book “Notes of a Misanthrope. The Parade of Imperfect People”. From the annotation: “Is it true that the European civilization with its humanism and liberal values is getting exhausted and is near to the logical conclusion? How should a person willing to remain human in the world of impoverished material values live? The author invites the reader to reflect on this and other questions”.
The presentation will be accompanied by the book exhibition displaying fiction works, scientific translations and academic papers by V. Shulikovskaya. At the meeting V. Shulikovskaya will answer the questions about her work as a scientist and a writer.

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On June 22, 2009, the Supreme Court held 6-3 that the Corps, rather than EPA, has authority to permit the discharge of a rock and water mixture called “slurry” from a mine froth flotation process to a nearby lake, reversing the Ninth Circuit’s decision that the proposed discharge would violate the EPA’s performance standard and §306(e) of the Clean Water Act. Coeur Alaska, Inc. v.. Southeast Alaska Conservation Council et al., __U.S.__ (No. No. 07–984, June 22, 2009). Section §402(a) of the Clean Water Act forbids the EPA to issue permits for fill materials falling under the Corps’ §404 authority. Because §404(a) empowers the Corps to “issue permits . . . for the discharge of . . . fill material,” and the agencies’ joint regulation defines “fill material” to include “slurry . . . or similar mining-related materials” having the “effect of . . . [c]hanging the bottom elevation” of water, 40 C.F.R. §232.2, Justice Kennedy's opinion for Court states, the slurry Coeur Alaska wishes to discharge into the lake falls within the Corps’ §404 permitting authority. The Clean Water Act is ambiguous on the question whether §306 applies to discharges of fill material regulated under §404, however EPA’s internal “Regas Memorandum” states that the performance standard applies only to the discharge of water from the lake into the downstream creek, and not to the initial discharge of slurry into the lake. The dissent , written by Justice Ginsburg, takes the view that a discharge covered by a performance standard must be authorized, if at all, by EPA.
On May 2, 2009, Secretary of the Department of the Interior, Ken Salazar held a public meeting just outside Las Vegas, in the Red Rock Canyon National Recreation Area, to announce the opening of four new BLM offices to handle renewable energy permitting. The offices will be located in Nevada, Arizona, California and Wyoming, and have been designed to address the backlog of pending renewable energy project applications. The DOI estimates that 200 solar applications and over 25 wind projects are pending with the BLM in the western states.
I was one of the 25 or so attendees lucky enough to have the honor and privilege to be invited to a meeting with Secretary Salazar prior to the public meeting where this announcement was made. This earlier meeting was attended by developers of solar, wind and geothermal projects and others in the renewable energy industry. I was impressed by Secretary Salazar’s level of knowledge about both renewable projects and the BLM permitting process, as demonstrated by his comments and questions. Secretary Salazar also announced that $305 million in American Recovery and Reinvestment Act(ARRA) monies will be used for BLM projects to restore landscapes, spur renewable energy development on public lands, and create jobs. I left the meeting with confidence in the Secretary’s commitment to renewable energy and to the implementation of changes, policies and programs that will convert renewable energy from a noble goal to a reality.
On behalf of Richard Curley (Golden, CO) and myself, I am writing to extend a personal invitation to attend the July 9 & 10 Santa Fe, New Mexico “National Advanced Conference on Natural Resource Damages Litigation.” The course will be held at the La Fonda Hotel in Santa Fe.
The course agenda is packed with vital information of high value to any attorney who is, or may someday be, involved in the expanding world of NRD litigation. Attendees will also get a chance to meet and interact with this extraordinary faculty in a selective and intimate environment, including a catered, cost-free reception on the evening of July 9.
Please take a moment to review the brochure from program sponsor Law Seminars International (see http://www.lawseminars.com/detail.php?SeminarCode=09NRDNM). If, as I hope, you are able to join us, please take advantage of the $150 discount offered to friends and clients of Farella Braun + Martel LLP. To do so, please mention the “FBM Discount” in the comments box of the registration page or when registering by phone at (800) 854-8009.
This is an exciting opportunity to see this august assemblage of environmental experts at one national program. The atmosphere of Santa Fe is an added bonus. We hope to see you there.
Buried within ACES’ cap-and-trade emissions plan are a series of provisions that detail how big banks, hedge funds, and traders can use complex securities and derivatives to profit from the new carbon allowance market. We all watched aghast as “credit default swaps” and similar financial alchemy led to the melt down of Wall Street and the credit markets. Do these types of investments have a proper role in climate change and energy legislation? In a bill that already has plenty of political and policy hurdles, why add financial regulation?
Title III, Subtitle D of ACES, entitled “Carbon Market Assurance”, amends the Federal Power Act to create a financial instrument known as a “regulated allowance derivative”, which can include a “swap agreement”, and directs the Federal Energy Regulatory Commission to establish regulations for these financial vehicles. Title III, Subtitle E of ACES, entitled "Additional Market Assurance", addresses transactions in derivatives involving energy commodities such as coal, gasoline, and natural gas. These provisions open the door for financial institutions to partake in the new market created by ACES’ emission allowances. It allows companies, funds, and traders to purchase and trade emission allowances, and to devise complex derivative instruments to sell and trade, picking up commissions and charging fees along the way. As a result, the theoretical value of the allowances and their derivatives will be determined, in large part, by the manipulation and speculation of financial parties with little or no concern for carbon emission standards or federal climate policy beyond immediate monetary gain.
Simply put, the emerging market for new carbon allowances created by the bill could be (at best) undermined or (at worst) commandeered by financial contrivances that are already partially responsible for the nation’s current financial instability. The fundamental value of the new cap-and-trade 'products' will necessarily fluctuate as the emissions market adjusts and stabilizes. If big banks and hedge funds can use puts, swaps, options and other speculative instruments, which the federal government has yet to capably regulate, the stability of emissions allowances and carbon trading could be placed at risk. The chaos visited upon the economy at large by these and other financial instruments should cause hesitation and serious consideration as to whether they belong in Congress' first attempt at comprehensive climate change legislation.