To view a pdf version of this document, click the following links: index, memo and appendix. To view a one page bullet point handout, click here.
I am an attorney in Washington State where assisted suicide is legal.  Our law is based on a similar law in Oregon. Both laws are similar to the initiated measure, which seeks to legalize assisted suicide and euthanasia in South Dakota.
The initiated measure is sold as a promotion of patient choice and control. The measure is instead stacked against the patient and a recipe for elder abuse.
If enacted, the measure will apply to people with years or decades to live. People with years or decades to live will be encouraged to throw away their lives. I urge you to reject this measure.
[T]he physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide.
Assisted suicide is a general term in which an assisting person is not necessarily a physician. Euthanasia is the administration of a lethal agent to cause another person’s death.
This year, the South Dakota Legislature passed Senate Concurrent Resolution 11, opposing physician-assisted suicide. The vote was 32 to 3 in the Senate and 67 to 1 in the House. The vote to pass was nearly unanimous.
Last year, the New Mexico Supreme Court overturned a lower court decision that had recognized a right to physician aid in dying, meaning physician assisted suicide. Physician-assisted suicide is no longer legal in New Mexico.
In the last six years, five other states have strengthened their laws against assisted suicide. These states are Arizona, Louisiana, Georgia, Idaho and Ohio.
Oregon and Washington State legalized assisted suicide via ballot measures in 1997 and 2008, respectively. Since then, just three states and the District of Columbia have passed similar laws (Vermont, California and Colorado). In the fine print, these laws also allow euthanasia.
Elder abuse is a prevalent and largely hidden problem throughout the United States, including South Dakota. Perpetrators are often family members who start out with small crimes, such as stealing jewelry and blank checks, before moving on to larger items or to coercing victims to change their wills or to liquidate their assets.
[These men] sought companionship and found instead . . . someone who siphoned their savings, slipped drugs into their food and, in the case of one man, ran him over with a car and left him dead on a dirt road.
The measure has an application process to obtain the lethal dose, which includes a written lethal request form with two required witnesses. One of the witnesses is allowed to be the patient’s heir who will financially benefit from the patient’s death.
After the lethal dose is issued by the pharmacy, there is no oversight. No doctor, not even a witness, is required to present at the death.
When signing a will, having an heir act as one of two witnesses can support a finding of undue influence. Washington State’s probate code, for example, provides that when one of two witnesses receives a gift under a will, there is a rebuttable presumption that the gift was procured “by duress, menace, fraud, or undue influence." The proposed measure, which allows an heir to act as one of two witnesses on the lethal dose request form, invites coercion.
“Terminal disease,” [means] an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.
“Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.
If the proposed measure is enacted, assisted suicide and euthanasia will be allowed for people with chronic conditions such as insulin dependent diabetes. Such persons can have years or decades to live.
If the proposed legislation is enacted, people like Jeanette Hall, with years or decades to live, will be encouraged to throw away their lives.
"Informed decision," [means] a decision . . . that is based on an appreciation of the relevant facts and after being fully informed . . . of . . .
(e) The feasible alternatives, such as, comfort care, hospice care, and pain control. (Emphasis added).
[W]here general words . . . precede the enumeration of particular classes of things, . . . ejusdem generis . . . requires that the general words . . . be construed as applying only to things of the same general kind as those enumerated. (Emphasis added).
With the initiated measure, the general words, “feasible alternatives,” precede enumerated words having to do with dying (“comfort care, hospice care, and pain control”). Per the rule, this enumeration limits the general words, “feasible alternatives” to those having to do with dying. Patients lose the right to be told about alternatives for cure.
“Competency,” in the opinion of a court or in the opinion of the patient’s attending physician or consulting physician, psychiatrist, or psychologist, a patient’s ability to make and communicate an informed decision to health care providers, including communication through persons familiar with the patient's manner of communicating if those persons are available .... (Emphasis added).
Note that the communicating person is not required to be the patient’s designated agent. Being familiar with a patient’s “manner of communicating” is, regardless, a very minimal standard. Consider, for example, a doctor’s assistant who is familiar with a patient’s “manner of communicating” in Spanish, but she, herself, does not understand Spanish. That, however, would be good enough for her to communicate for the patient during the lethal dose request process. With this situation, patient choice and control is far from guaranteed.
With assisted suicide laws in Washington and Oregon [and with the proposed measure], perpetrators can . . . take a “legal” route, by getting an elder to sign a lethal dose request. Once the prescription is filled, there is no supervision over administration. Even if a patient struggled, “who would know?” (Emphasis added).
The attending physician may sign the patient’s death certificate, which shall list the underlying terminal disease as the cause of death. (Emphasis added).
The significance of requiring a terminal disease to be listed as the cause of death is that it creates a legal inability to prosecute. The official legal cause of death is a terminal disease (not murder) as a matter of law.
More to the point, a perpetrator will be let off the hook: The measure will create the perfect crime.
The measure says that a patient may self-administer the lethal dose. There is no language, however, that administration “must” be by self-administration.
“Self-administer,” a qualified patient’s act of ingesting medication to end the patient’s life . . . (Emphasis added).
[T]o take (food, drugs, etc.) into the body, as by swallowing, inhaling, or absorbing. (Emphasis added).
With this definition, someone else putting the lethal dose in the patient’s mouth will qualify as self-administration because the patient will be “swallowing” the lethal dose, i.e., “ingesting” it. Someone else placing a medication patch on the patient’s arm will qualify because the patient will be “absorbing” the lethal dose, i.e., “ingesting” it. Gas administration, similarly, will qualify because the patient will be “inhaling” the lethal dose, i.e., “ingesting” it. With self-administer defined as mere ingesting, someone else is allowed to administer the lethal dose to the patient.
Euthanasia is the administration of a lethal agent by another person to a patient . . . (Emphasis added).
The proposed measure allows euthanasia as traditionally defined.
Nothing in this Act authorizes a physician or any other person to end a patient's life by lethal injection, mercy killing, or active euthanasia.
[T]he patient’s death certificate ... shall list the underlying terminal disease as the cause of death. (Emphasis added).
Any action taken in accordance with this Act does not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law. (Emphasis added).
1. The underlying terminal disease must be listed as the cause of death.
If South Dakota enacts the proposed measure and follows Washington State, death certificates will not even hint that the actual cause of death was assisted suicide or euthanasia. This will happen simply because the measure was “used.” There will be an official legal cover up.
Oregon is not a valid case study due to a near complete lack of transparency regarding its law. Even law enforcement does not have access to the information collected and source documentation is destroyed. The bottom line, Oregon’s official data cannot be verified.
experienced full or sub-threshold PTSD (Post Traumatic Stress Disorder) related to the loss of a close person through assisted suicide.
In Washington State and Oregon, I have had two cases where my clients suffered trauma due to legal assisted suicide. In the first case, one side of the family wanted the father to take the lethal dose, while the other side did not. The father spent the last months of his life caught in the middle and torn over whether or not he should kill himself. My client, his adult daughter, was severely traumatized.
The father did not take the lethal dose and died a natural death.
In the other case, it’s not clear that administration of the lethal dose was voluntary. A man who was present told my client that his (my client's) father had refused to take the lethal dose when it was delivered, stating, "You're not killing me. I'm going to bed," but then he (the father) took it the next night when he was intoxicated on alcohol. The man who told this to my client subsequently changed his story.
My client, although he was not present, was traumatized over the incident, and also by the sudden loss of his father.
A person who coerces or exerts undue influence on a patient to request medication to end the patient’s life, or to destroy a rescission of a request, is guilty of a class A felony. (Emphasis added).
The measure also allows a patient’s heir to be one of two witnesses on the lethal dose request form, which is used to prove undue influence.
How do you prove that undue influence occurred when the measure does not define it and the measure also allows conduct used to prove it in another context? You can’t. The felony for undue influence is illusory and unenforceable.
Passing the proposed measure will encourage people with years or decades to live to throw away their lives.
Administration of the lethal dose is allowed to occur in private without a doctor or witness present. If the patient objected, or even struggled, who would know?
The death certificate will list a terminal disease as the cause of death. This will prevent prosecution for murder, no matter what the facts. The measure, if enacted, will create the perfect crime. Don’t make Oregon and Washington’s mistake. I urge you to reject the proposed measure.
 I am an elder law and appellate attorney licensed to practice law in Washington State since 1986. I am also a former Law Clerk to the Washington State Supreme Court. I am president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia. My CV is attached in the appendix at A-1 to A-4. See also www.margaretdore.com, www.choiceillusion.org.
 The measure is attached hereto in the appendix at A-101 through A-111.
 The AMA Code of Medical Ethics, Opinion 5.7.
 Id, Opinion 5.8, “Euthanasia,” (lower half of the page).
 Nina Shapiro, “Terminal Uncertainty — Washington's new 'Death with Dignity' law allows doctors to help people commit suicide — once they've determined that the patient has only six months to live. But what if they're wrong?,” The Seattle Weekly, 01/14/09; article can also be viewed in the appendix at A-6, quote at A-8.
 Bill History, South Dakota Senate Concurrent Resolution 11, “Opposing physician-assisted suicide,” attached in the appendix at A-9.
 Morris v. Brandenburg, 376 P.3d 836 (2016).
 The measure’s lethal dose request form can be viewed in the initiated measure at § 3, in the appendix at A-102 to A-104. The witness section can be viewed at A-104.
 See the measure in its entirety, in the appendix at A-101 to A-111.
 Wash. Rev. Code Ann. § 11.12.160(2), in the appendix at A-10.
 The initiated measure, § 1(12).
 Or. Rev. Stat. 127.800 s.1.01(12), attached to Toffler Declaration at A-22.
 See Declaration of William Toffler, MD, at A-20 to A-21, ¶¶ 2-4.
 Cf. Jessica Firger, “12 million Americans misdiagnosed each year,” CBS NEWS, 4/17/14, attached hereto at A-25, and Nina Shapiro, “Terminal Uncertainty — Washington's new 'Death with Dignity' law allows doctors to help people commit suicide — once they've determined that the patient has only six months to live. But what if they're wrong?,” The Seattle Weekly, 01/14/09. (Excerpts in the appendix at A-6 to A-8).
 Affidavit of Kenneth Stevens, MD, also attached in the appendix at A-29 to A-35; Jeanette Hall discussed at A-29 to A-30; Hall declaration, also attached in the appendix at A-36.
 Declaration of Jeanette Hall, ¶4, also in the appendix at A-36.
 See initiated measure, §§ 1(6) & 7, also attached in the appendix at A-101 & A-106.
 Crawford v Schulte, 829 N.W.2d 155, 158 (2013).
 The initiated measure, § 2.
 The initiated measure, § 4, last sentence.
 See id., § 2 ("the patient may self-administer").
 See the measure in its entirety.
 Opinion 5.8, “Euthanasia,” (lower half of the page).
 Id., § 4, last sentence.
 Again, see Washington State’s probate statute in the appendix at A-43.


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 Harper v. Trenton Housing Authority, supra; Lebanon and Nashville Turnpike Co. v. Creveling, 159 Tenn. 147, 17 S.W.2d 22 (1929); City of Nashville v. Dad's Auto Accessories, Inc., supra; Department of Highways v. Stepp, supra; Cunningham v. Memphis Railroad Terminal Co., 126 Tenn. 343, 149 S.W. 103 (1912); Tennessee Central Railroad Co. v. Campbell, 109 Tenn. 655, 73 S.W. 112 (1902) (Campbell II); Shelby County v. Armour, supra; Morgan County v. Jones, supra.
 Alloway v. City of Nashville, 88 Tenn. 510, 13 S.W. 123 (1890); Morgan County v. Jones, supra.
 Department of Highways v. Stepp, supra; Tennessee Central Railroad Co. v. Campbell, supra (Campbell II).
 Georgia Industrial Realty Co. v. City of Chattanooga, 163 Tenn. 435, 43 S.W.2d 490 (1931); Cunningham v. Memphis Railroad Terminal Co., supra; Tennessee Central Railroad Co. v. Campbell, supra (Campbell I).
 Tennessee Central Railroad Co. v. Campbell, supra (Campbell I).

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DairyNZ scientists write a number of articles and papers on a wide range of topics, which are published in respected industry publications.
Almughlliq, F. B., Y. Q. Koh, H. N. Peiris, K. Vaswani, S. McDougall, E. M. Graham, C. R. Burke, and M. D. Mitchell. 2017. Effect of exosomes from plasma of dairy cows with or without an infected uterus on prostaglandin production by endometrial cell lines. Journal of Dairy Science 100(11): 9143-9152.
Chapman, D. F. , L. Rossi, J. M. Lee, G. R. Edwards, A. J. Popay, M. N. McNeill, D. J. Wilson, and N. Bell. 2018. Implications of grass-clover interactions in dairy pastures for forage indexing systems. 4. Canterbury. New Zealand Journal of Agricultural Research 61: 204-229.
Chapman, D. F., J. M. Lee, L. Rossi, G. P. Cosgrove, D. R. Stevens, J. R. Crush, W. M. King, G. R. Edwards, and A. J. Popay. 2018. Implications of grass-clover interactions in dairy pastures for forage value indexing systems. 1. Context and rationale. New Zealand Journal of Agricultural Research 61: 119-146.
Chapman, D. F., J. R. Crush, J. M. Lee, G. P. Cosgrove, D. R. Stevens, L. Rossi, A. J. Popay, G. R. Edwards, and W. M. King. 2018. Implications of grass-clover interactions in dairy pastures for forage value indexing systems. 6. Cross-site analysis and general discussion. New Zealand Journal of Agricultural Research 61: 255-284.
Crookenden, M. A., C. G. Walker, B. Kuhn-Sherlock, A. Murray, V. S. R. Dukkipati, A. Heiser, and J. R. Roche. 2017. Technical note: Evaluation of endogenous control gene expression in bovine neutrophils by reverse transcriptase-quantitative PCR using microfluidics gene expression arrays. Journal of Dairy Science 100(8): 6763-6771.
Crookenden, M. A., C. G. Walker, H. Peiris, Y. Koh, F. Almughlliq, K. Vaswani, S. Reed, A. Heiser, J. J. Loor, J. K. Kay, S. Meier, S.S. Donkin, A. Murray, V.S.R. Dukkipati, J. R. Roche, and M. D. Mitchell. 2017. Effect of circulating exosomes from transition cows on Madin-Darby bovine kidney cell function. Journal of Dairy Science 100(7): 5687-5700.
Crush, J. R, J. M. Lee, G. P. Cosgrove, L. Rossi, D. F. Chapman, and D. R. Stevens. 2018. Foliar macronutrient concentrations of eight perennial ryegrass (Lolium perenne L.) cultivars grown in four regions in New Zealand. New Zealand Journal of Agricultural Research 61: 285-300.
Crush, J. R, J. M. Lee, G. P. Cosgrove, L. Rossi, D. F. Chapman, and D. R. Stevens. 2018. Foliar micronutrient concentrations of eight perennial ryegrass (Lolium perenne L.) cultivars grown in four regions in New Zealand. New Zealand Journal of Agricultural Research 61: 301-311.
Cuttance, E. L., W. A. Mason, J. McDermott, R. A. Laven, S. McDougall, and C. V. C. Phyn. 2017. Calf and replacement heifer mortality from birth until weaning in pasture-based dairy herds in New Zealand. Journal of Dairy Science 100(10): 8347-8357.
Cuttance, E. L., W. A. Mason, R. A. Laven, J. McDermott, and C. V. C. Phyn. 2017. Prevalence and calf-level risk factors for failure of passive transfer in dairy calves in New Zealand. New Zealand Veterinary Journal 65(6): 297-304.
Dalley, D. E., B. J. Malcolm, E. Chakwazira, and J. M. de Ruiter. 2017. Range of quality characteristics of New Zealand forages and implications for reducing the nitrogen leaching risk from grazing dairy cows. New Zealand Journal of Agricultural Research 60(3): 319-332.
Dennis, N. A., K. Stachowicz, B. Visser, F.S Hely, D. K. Berg, N.C. Friggens, P.R. Amer, S. Meier, and C.R. Burke. 2018. Combining genetic and physiological data to identify predictors of lifetime reproductive success and the effects of selection on these predictors on underlying fertility traits. Journal of Dairy Science 101(4): 3176-3192.
Gregorini, P., F. D. Provenza, J. J. Villalba, P. C. Beukes, and M. J. Forbes. 2018. Diurnal patterns of urination and drinking by grazing ruminants: A development in a mechanistic model of a grazing ruminant, MINDY. The Journal of Agricultural Science 156(1): 71-81.
Higham, C. D., D. Horne, R. Singh, B. Kuhn-Sherlock, and M. R. Scarsbrook. 2017. Temporal and spatial water use on irrigated and non-irrigated pasture-based dairy farms. Journal of Dairy Science 100(8): 6772-6784.
Kerslake, J. I., P. R. Amer, P. L. O'Neill, S. L. Wong, J. R. Roche, and C. V. C. Phyn. 2018. Economic costs of recorded reasons for cow mortality and culling in a pasture-based dairy industry. Journal of Dairy Science 101(2): 1795-1803.
Koh, Y, Q., H. N. Peiris, K. Vaswani, S. Meier, C. R. Burke, K. A. Macdonald, J. R. Roche, F. Almughlliq, B. J. Arachchige, S. Reed, and M. D. Mitchell. 2017. Characterization of exosomes from body fluids of dairy cows. Journal of Animal Science 95: 3893-3904.
Laurenson, S., R. Monaghan, T. Orchiston, and D. Dalley. 2017. Assessing the environmental implications of applying dairy cow effluent during winter using low rate and low depth application methods. New Zealand Journal of Agricultural Research 60(4): 449-469.
Laurenson, S., T. J. van der Weerden, P. C. Beukes, and I. Vogeler. 2017. Evaluating the economic and production benefit of removing dairy cows from pastures in response to wet soil conditions. New Zealand Journal of Agricultural Research 60(3): 223-244.
Lee, J. M., D. F. Chapman, C. M. Wims, W. M. Griffiths, A. J. Popay, D. J. Wilson, and N. L. Bell. 2018. Implications of grass-clover interactions in dairy pastures for forage value indexing systems. 2. Waikato. New Zealand Journal of Agricultural Research 61: 147-173.
Littlejohn, M. D., S-A Turner, C. G. Walker, S. D. Berry, K. Tiplady, R. G. Sherlock, G. Sutherland, S. Swift, D. Garrick, S. J. Lacy-Hulbert, S. McDougall, R. J. Spelman, R. G. Snell, and J. E. Hillerton. 2018. Identification of an immune modulation locus utilising a bovine mammary gland infection challenge model. Journal of Dairy Research 85(2): 185-192.
Macdonald, K. A., J. W. Penno, J. A. S. Lancaster, A. M. Bryant, J. M. Kidd, and J. R. Roche. 2017. Production and economic responses to intensification of pasture-based dairy production systems. Journal of Dairy Science 100(8): 6602-6619.
Mason, N. W. H., D. J. Palmer, A. Romera, D. Waugh, and P. L. Mudge. 2017. Combining field experiments and predictive models to assess potential for increased plant diversity to climate-proof intensive agriculture. Ecology and Evolution 7(13):4907-4918.
McDougall, S., S. Leane, S. T. Butler, J. R. Roche, and C. R. Burke. 2018. Effect of altering the type of dietary carbohydrate early postpartum on reproductive performance and milk production in pasture-grazed dairy cows. Journal of Dairy Science 101(4): 3433-3446.
Monaghan, R. M., S. Laurenson, D. E. Dalley, and T. S. Orchiston. 2017. Grazing strategies for reducing contaminant losses to water from forage crop fields grazed by cattle during winter. New Zealand Journal of Agricultural Research 60(3): 333-348.
Phyn, C. V. C., K. Stelwagen, S. R. Davis, C. D. McMahon, J. M. Dobson, and K. Singh. 2017. Tight junction protein abundance and apoptosis during involution of rat mammary glands. Journal of Cellular Physiology 232(8): 2075-2082.
Roche, J. R., D. P. Berry, A. M. Bryant, C. R. Burke, S. T. Butler, P. G. Dillon, D. J. Donaghy, B. Horan, K. A. Macdonald, and K. L. Macmillan. 2017. A 100-Year Review: A century of change in temperate grazing dairy systems. Journal of Dairy Science 100(12): 10189–10233.
Singh, K., C. V. C. Phyn, M. Reinsch, J. M. Dobson, K. Oden, S. R. Davis, K. Stelwagen, H. V. Henderson, and A. J. Molenaar. 2017. Temporal and spatial heterogeneity in milk and immune-related gene expression during mammary gland involution in dairy cows. Journal of Dairy Science 100(9): 7669-7685.
Spaans, O. K., K. A. Macdonald, J. A. S. Lancaster, A. M. Bryant, and J. R. Roche. 2018. Dairy Cow Breed Interacts with Stocking Rate in Temperate Pasture-based Dairy Production Systems. Journal of Dairy Science 101(5): 4690-4702.
Tozer, K. N., E. M. K. Minnee, R. M. Greenfield, and C. A. Cameron. 2017. Effects of pasture base and species mix complexity on persistence and weed ingress in summer-dry dairy pastures. Crop and Pasture Science 68(6): 561-573.
Tozer, K. N., K. Carswell, W. M. Griffiths, J. R. Crush, C. A. Cameron, D. F. Chapman, A. Popay and W. King. 2017. Growth responses of diploid and tetraploid perennial ryegrass (Lolium prenne) to soil-moisture deficit, defoliation and a root-feeding invertebrate. Crop and Pasture Science 67(7): 632-642.
Van Der Weerden, T. J., S. Laurenson, I. Vogeler, P. C. Beukes, S. M. Thomas, R. M. Rees, C. F. E. Topp, G. Lanigan, and C. A. M. de Klein. 2017. Mitigating nitrous oxide and manure-derived methane emissions by removing cows in response to wet soil conditions. Agricultural Systems 156: 126-138.
Vibart, R., A. Mackay, A. Wall, I. Vogeler, J. Beautrais, and D. Dalley . 2017. A farm-scale framework to assess potential farm- and regional-scale implications of removing palm-kernel expeller as a supplementary feed for dairy cows. Animal Production Science 57(7): 1336-1342.
Adler, A. A, G. J. Doole, A. J. Romera, and P. C. Beukes. 2015. Managing greenhouse gas emissions in two major dairy regions of New Zealand: A system-level evaluation. Agricultural Systems 135: 1-9.
Akbar, H., T. M. Grala, M. Vailati Riboni, F. C. Cardoso, G. Verkerk, J. McGowan, K. Macdonald, J. Webster, K. Schutz, S. Meier, L. Matthew, J. R. Roche, and J. J. Loor. 2015. Body condition score at calving affects systemic and hepatic transcriptome indicators of inflammation and nutrient metabolism in grazing dairy cows. Journal of Dairy Science 98: 1019-1032.
Berry, D. P., M. P. Coffey, J. E. Pryce, Y. de Haas, P. Løvendahl, N. Krattenmacher , J. J. Crowley, Z. Wang, D. Spurlock, K. Weigel, K. Macdonald, and R. F. Veerkamp. 2014. International genetic evaluations for feed intake in dairy cattle through the collation of data from multiple sources. Journal of Dairy Science 97: 3894-3905.
Beukes, P. C. , P. Gregorini, A. J. Romera, S. L. Woodward, E. N. Khaembah, D. F. Chapman, F. Nobilly, R. H. Bryant, G. R. Edwards, and D. A. Clark. 2014. The potential of diverse pastures to reduce nitrogen leaching on New Zealand dairy farms. Animal Production Science 54: 1971-1979.
Bowley, F. E., R. E. Green, P. R. Amer, and S. Meier. 2015. Novel approaches to genetic analysis of fertility traits in New Zealand dairy cattle. Journal of Dairy Science 98: 2005-2012.
Bryant, R. H., D. E. Dalley, J. Gibbs, and G. R. Edwards. 2014. Effect of grazing management on herbage protein concentration, milk production and nitrogen excretion of dairy cows in mid-lactation. Grass and Forage Science 69: 644-654.
Chapman, D. F. , G. R. Edwards, A. V. Stewart, M. McEvoy, M. O’Donovan, and G. C. Waghorn. 2014. Valuing forages for genetic selection: what traits should we focus on? Animal Production Science 55: 869-882.
Cheng, L., S. L. Woodward, R. J. Dewhurst, H. Zhou, and G. R. Edwards. 2014. Nitrogen partitioning, energy use efficiency and isotopic fractionation of cows differed in genetic merit fed low quality pasture in late lactation. Animal Productioon Science 54: 1651-1656.
Crookenden, M. A., K. S. Mandok, T. M. Grala, C. V. C. Phyn, J. K. Kay, S. L. Greenwood, and J. R. Roche. 2015. Source of metabolizable energy affects gene transcription in metabolic pathways in adipose and liver tissue of nonlactating, pregnant dairy cows. Journal of Animal Science 93: 685-698.
De Boer, M. W., S. J. LeBlanc, J. Dubuc, S. Meier, W. Heuwieser, S. Arlt, R. O. Gilbert, and S. McDougall. 2014. Invited review: Systematic review of diagnostic tests for reproductive-tract infection and inflammation in dairy cows. Journal of Dairy Science 97: 3983-3999.
Doole, G. J., and A. J. Romera. 2014. Cost-effective regulation of nonpoint emissions from pastoral agriculture: a stochastic analysis. Australian Journal of Agricultural and Resource Economics 58: 471-494.
Doole, G. J., and A. J. Romera. 2014. Implications of a nitrogen leaching efficiency metric for pasture-based dairy farms. Agricultural Water Management 142: 10-18.
Edwards, J. P., J. G. Jago, and N. Lopez-Villalobos. 2014. Principles for maximising operator efficiency and return on investment in rotary dairies. Animal Production Science 54: 1102-1108.
Edwards, J. P., B. T. Dela Rue, and J. G. Jago. 2015. Evaluating rates of technology adoption and milking practices on New Zealand dairy farms. Animal Production Science 55: 702-709.
Forbes, M. J., and P. Gregorini. 2015. The catastrophe of meal eating. Animal Production Science 55: 350-359.
Gregorini, P., J. Galli, A. J. Romera, G. Levy, K. A. Macdonald, H. H. Fernandez, and P. C. Beukes. 2014. Incorporating a prediction of postgrazing herbage mass into a whole-farm model for pasture-based dairy systems. Journal of Dairy Science 97: 4354-4366.
Gregorini, P., J. J. Villalba, F. D. Provenza, P. C. Beukes, and J. M. Forbes. 2015. Modelling preference and diet selection patterns by grazing ruminants: a development in a mechanistic model of a grazing dairy cow, MINDY. Animal Production Science 55: 360-375.
Heiser, A., A. McCarthy, N. Wedlock, S. Meier, J. Kay, C. Walker, M. A. Crookenden, M. D. Mitchell, S. Morgan, K. Watkins, J. J. Loor, and J. R. Roche. 2015. Grazing dairy cows had decreased interferon-γ, tumor necrosis factor, and interleukin-17, and increased expression of interleukin-10 during the first week after calving. Journal of Dairy Science 98: 937-946.
Hills, J. L. , S. C. Garcia, B. Dela Rue, and C. E. F. Clark. 2014. Individualised feeding of concentrate supplements to pasture-based dairy cows/Limitations and potential for individualised feeding of concentrate supplements to grazing dairy cows. Animal Production SCience 55: 922-930.
Hills, J. L., W. J. Wales, F. R. Dunshea, S. C. Garcia, and J. R. Roche. 2015. Invited Review: An evaluation of the likely effects of individualized feeding of concentrate supplements to pasture-based dairy cows. Journal of Dairy Science 98: 1363-1401.
Jonker, A. , G. Molano, C. Antwi, and G. Waghorn. 2014. Feeding lucerne silage to beef cattle at three allowances and four feeding frequencies affects circadian patterns of methane emissions, but not emissions per unit of intake. Animal Production Science 54: 1350-1353.
Kamphuis, C., B. Dela Rue, S.-A. Turner, and S.-F. Petch. 2015. Devices used by automated milking systems are similarly accurate in estimating milk yield and in collecting a representative milk sample compared with devices used by farms with conventional milk recording. Journal of Dairy Science 98: 3541-3557.
Kay, J. K., J. J. Loor, A. Heiser, J. McGowan, and J. R. Roche. 2014. Managing the grazing dairy cow through the transition period: A review. Animal Production Science 55: 936-942.
Kirshbaum, M. U. F., S. Rutledge, I. A. Kuijper, P. L. Mudge, N. Puche, A. M. Wall, C. G. Roach, L. A. Schipper, and D. I. Campbell. 2015. Modelling carbon and water exchange of a grazed pasture in New Zealand constrained by eddy covariance measurements. Science of the Total Environment 512-513: 273-286.
Lee, J. M., N. R. Hemmingson, E. M. K. Minnee, and C. E. F. Clark. 2015. Management strategies for chicory (Cichorium intybus) and plantain (Plantago lanceolata): Impact on dry matter yield, nutritive characteristics and plant density. Crop & Pasture Science 66: 168-183.
Mandok, K. S., J. K. Kay, S .L. Greenwood, J. P. MacNamara, M. Crookenden, R. White, S. Shields, G. R. Edwards, and J. R. Roche. 2014. Efficiency of use of metabolisable energy for body weight gain in pasture-based, nonlactating dairy cows. Journal of Dairy Science 97: 4639-4648.
Pacheco, D., G. Waghorn, and P. Janssen. 2014. Decreasing methane emissions from ruminants grazing forages: a fit with productive and financial realities? Animal Production Science 54: 1141-1154.
Phyn, C. V. C, J. K. Kay, A. G. Rius, S. R. Morgan, C. G. Roach, T. M. Grala, and J. R. Roche. 2014. Temporary alterations to postpartum milking frequency affect whole-lactation production and the energy status of pasture-grazed dairy cows. Journal of Dairy Science 97: 6850-6868.
Provenza, F. D., P. Gregorini, and P. C. F. Carvalho. 2015. Synthesis: Foraging decisions link plants, herbivores, and human beings. Animal Production Science 55: 411-425.
Ramsbottom, G. , B. Horan, D. P. Berry, and J. R. Roche. 2015. Factors associated with the financial performance of spring-calving, pasture-based dairy farms. Journal of Dairy Science 98: 3526-3540.
Roche, J. R., N. A. Dennis, K. A. Macdonald, C. V. C. Phyn, P. R. Amer, R. R. White, J. K. Drackley. 2014. Heifer rearing to optimise farm profitability/Growth targets and rearing strategies for replacement heifers in pasture-based systems: a review. Animal Production Science 55: 902-915.
Romera, A. J, and G. J. Doole. 2015. Optimising the interrelationship between intake per cow and intake per hectare. Animal Production Science 55: 384-396.
Romera, A. J, G. J. Doole, and E. N. Khaembah. 2015. Value of chicory crops to pasture-based dairy farms in the Waikato region of New Zealand. Journal of Agricultural Science 153: 124-137.
Scarsbrook, M. R., and A. R. Melland. 2014. Dairying and water quality issues in Australia and New Zealand. Animal Production Science 55: 856-868.
Soca, P., H. Gonzalez, H. Manterola, M. Bruni, D. Mattiauda, P. Chilibroste, and P. Gregorini. 2014. Effect of restricting time at pasture and concentrate supplementation on herbage intake, grazing behaviour and performance of lactating dairy cows. Livestock Science 170: 35-42.
Vailati Riboni, M., S. Meier, N. V. Priest, C. R. Burke, J. K. Kay, S. McDougall, M. D. Mitchell, C. G. Walker, M. Crookenden, A. Heiser, J. R. Roche, and J. J. Loor. 2015. Adipose and liver gene expression profiles in response to treatment with a nonsteroidal antiinflammatory drug after calving in grazing dairy cows. Journal of Dairy Science 98: 3079-3085.
Waghorn, G. C., K.A. Macdonald, and M. M. Verwoerd. 2014. Tissue mobilisation in Holstein-Friesian cattle selected for divergence in efficiency, defined as residual feed intake. Animal Production Science 54: 1254-1257.
Walker, C. G., S. Meier, H. Hussein, S. McDougall, C. R. Burke, J. R. Roche, and M. D. Mitchell. 2015. Modulation of the immune system during post-partum uterine inflammation. Physiological Genomics 47: 89-101.
Wedlock, D. N., B. M. Buddle, J. H. Williamson, S. J. Lacy-hulbert, S-A Turner, S. Subharat, and A. Heiser. 2014. Dairy cows produce cytokine and cytotoxic T cell responses following vaccination with an antigenic fraction from Streptococcus uberis. Veterinary Immunology and Immunopathology 160: 51-60.

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LATHIAN SYSTEMS INC., Stephan Martinez and John Doe(s) 1-10, Defendants.
*1 THIS MATTER is before the Court on Plaintiff Physicians Interactive’s Motion for a Temporary Restraining Order and Preliminary Injunction, and Plaintiff’s Motion for Limited Expedited Discovery. This is a case where the host of an interactive website for medical professionals contends that Lathian Systems, Inc.’s (“Lathian”) information technology employee, Mr. Martinez, secretly hacked Physicians Interactive’s website and stole their confidential customer lists and computer software code.FN1 The question presented is whether an injunction should issue where Physicians Interactive has shown probable cause to believe that Lathian’s information technology employee used both a Lathian computer and his home computer to hack into Physicians Interactive’s web site using computer software to secretly collect Physicians Interactive’s customer lists and proprietary software. An injunction will be issued because Physicians Interactive has made a preliminary showing of an invasion of its computer system, unauthorized copying of its customer list, and theft of its trade secrets. Lathian may not use this confidential information to gain an unfair trade advantage; therefore, the Court will enjoin this activity. The Court will also enjoin Lathian, its employee Stephen Martinez, and any other agents of Lathian from any future attacks on the Physicians Interactive website. Finally, the Court will enjoin Lathian and its agents from using any of Physicians Interactive’s information previously obtained by Lathian or its employee(s).
FN1. “Hack” is defined as, “to explore and manipulate the workings of a computer or other technological device or system, either for the purpose of understanding how it works or to gain unauthorized access.” See Microsoft Encarta College Dictionary 644 (1st ed.2001).
Physicians Interactive alleges that Defendants Lathian and Stephen Martinez hacked its website by sending “electronic robots” to steal its customer list, computer code, and confidential data. Physicians Interactive runs a website for physicians, www.physinteractive.com >, featuring medical product and pharmaceutical data. See Mem. of P. & A. in Supp. of Pl’s Mot. for a T.R.O. and Prelim. Inj. (“Pl.’s Prelim. Inj. Mem.”) at 1-5. Lathian runs a similar type of service, <www.mydrugrep.com>. Id. Physicians Interactive maintains its file servers in Sterling, Virginia, which is located in the Eastern District of Virginia.FN2 Id.
On its file server, Physicians Interactive maintains an extensive confidential electronic database of the physicians and other medical professionals who use its service. Id . Specifically, Physicians Interactive’s database contains the names, street addresses, and e-mail addresses of all of its medical professional clients. Physicians Interactive’s file server is connected to the Internet, and is accessible by others via the Internet. Id. The public, however, does not have access to Physicians Interactive’s client lists. In order to make full use of the Physicians Interactive website, a medical professional must have a user password and personal identification number that has been issued by the Plaintiff. Id. The website’s most valuable asset is its data lists on medical professionals. These client lists consist of the medical professional’s name, title, occupation, speciality, mailing address, e-mail address, telephone number, and fax number. Id. at 5.
FN2. “File server” is defined as, “a computer in a network that stores application programs and data files accessed by other computers.” See Microsoft Encarta College Dictionary 533 (1st ed.2001).
*2 Physicians Interactive alleges that Defendants launched three “attacks” on its file servers to surreptitiously steal confidential data from its website. The attacks were carried out by Lathian’s technology employee, Stephan Martinez, to obtain the proprietary medical professional information stored on Physicians Interactive’s website. Id. at 7-11. The first alleged attack occurred on January 24, 2003. According to Plaintiff’s Preliminary Injunction Memorandum, the computer that accessed Physicians Interactive’s computer on that date “began to issue a series of commands to the Physicians Interactive Website Servers in which the URL and query string used by the Physicians Interactive Website Servers had been intentionally altered … These modifications appeared as part of a calculated effort to discover-through a process of experimentation-the elements of the query string that the Physicians Interactive Website Servers use to ensure that a user logged onto the site accesses only the information on the Website intended for that Medical Professional … Approximately 50 of these commands were issued.” Id. at 8. Physicians Interactive did an investigatory audit of this alleged attack, and concluded that the computer which initiated this action had an Internet Provider (“IP”) address of 4.18.53.195. Id. According to the registration records maintained by the American Registry for Internet Numbers (“ARIN”), this address is registered to <www.mydrugrep.com >, Lathian’s website. Id.
The Defendants second alleged attack occurred on January 27, 2003. This attack, according to Physicians Interactive, lasted over 30 hours and “flooded [Physicians Interactive’s] servers with a constant stream of commands issued at a rate of approximately 2.4 commands per second. Id. at 9. This alleged attack, according to Physicians Interactive, succeeded in accessing a significant number of Plaintiff’s proprietary medical professional information. According to Physicians Interactive,because of the nature of the attack, the alleged hacker used a “software robot” or “extraction software” program. Id. The purpose of such a program, according to Plaintiff, is to “operat[e] across the Internet to perform searching, copying, and retrieving functions on the websites of others….” Id. The IP address involved in this alleged attack, 68.4.173.153, was registered to Cox Communications, Inc.
(“Cox”), an Internet Service Provider (“ISP”). Physicians Interactive subpoenaed Cox to determine what person used this IP address at the time of the alleged attack. However, Cox no longer had the user information from this time period. Id.
The Defendants third alleged attack took place on September 10, 2003. The third attack, according to Physicians Interactive, was similar to the second, and succeeded in accessing an even more greater number of Physicians Interactive’s proprietary medical professional information. Id. at 10. According to Physicians Interactive, the alleged attack originated from IP address 69.99.188 .51. This IP address was also registered to Cox. According to Cox, this IP address was assigned to Defendant Stephan Martinez of Lake Forest, California. Mr. Martinez is an information technology employee of Lathian Systems. Lake Forest, California, according to Physicians Interactive, is approximately 14 miles from Lathian’s Newport Beach offices. Id.
*3 After Physicians Interactive determined the place and nature of these computer hacking attacks, its information technology professionals implemented a software patch to protect its website from unauthorized access. The purpose of this software patch is to “prevent such unauthorized access from recurring.” Id. at 12.
Physicians Interactive is suing Lathian Systems, Stephan Martinez, and John Doe(s) 1-10 for a private right of action under the federal Computer Fraud and Abuse Act, 18 U.S.C. s 1030, the Virginia Computer Crimes Act, Va.Code Ann. ss 18.2-152.3 ,-153.4, the Virginia Uniform Trade Secret Act, Va.Code Ann. ss 59.1-336 et seq., and a common law trespass on chattels claim. In its Motion for Temporary Restraining Order and Preliminary Injunction, Physicians Interactive moves this Court to enjoin Defendants from (1) accessing Plaintiff’s website file servers; (2) obtaining confidential proprietary and trade secret information belonging to Plaintiff; (3) using or disclosing any information that Defendants acquired by their allegedly unauthorized and illegal intrusions into Plaintiff’s website file servers; and (4) destroying or altering any evidence of such acts. See Pl.’s Prelim. Inj. Mem. at 1. Physicians Interactive also seeks expedited discovery in connection with its Motion for Preliminary Injunction.
In deciding whether to grant a motion for a preliminary injunction, this Court must apply the four part test set forth in Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir.1977); see also Manning v. Hunt, 119 F.3d 254, 263 (4th Cir.1997); Microstrategy Inc. v. Motorola, Inc., 245 F.3d 335 (4th Cir.2001). The four-part test involves a consideration of the following factors: (1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied; (2) the likelihood of harm to the defendant if the requested relief is granted; (3) the likelihood that the plaintiff will succeed on the merits; and (4) the public interest. Id. at 195-96. The Fourth Circuit has held that in a Blackwelder analysis, harm to both parties is the most important consideration. See Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 812 (4th Cir.1992); see also Wilson v. Office of Civilian Health & Medical Program of the Uniformed Services (CHAMPUS), 866 F.Supp. 903, 905 (E.D.Va.1994).
The plaintiff bears the burden of establishing that each of the Blackwelder factors support granting the injunction. See id. In addition, if the probable irreparable harm to the plaintiff in the absence of injunctive relief greatly outweighs the likely harm to the defendant if the Court should grant injunctive relief, then “it is not enough that grave or serious questions are presented; and plaintiff need not show a likelihood of success.” Blackwelder, 550 F.2d at 196.
Conversely, “[t]he importance of probability of success increases as the probability of irreparable harm diminishes.” Blackwelder, 550 F.2d at 195.
*4 Physicians Interactive also seeks limited expedited discovery directly related to the issues raised in its Motion for Temporary Restraining Order and Preliminary Injunction. According to Plaintiff’s Memorandum in Support of its Motion for Limited Expedited Discovery, Physicians Interactive seeks “a limited number of document requests from Lathian and Martinez that relate, in general, to the circumstances surrounding the illegal intrusion of the PI Website Servers, the persons involved, the scope of the disclosure or dissemination of the confidential and proprietary and trade secret information which was illegally obtained as a result of the intrusions, and the use to which such trade secrets were put.” See Pl.’s Mem. of P. & A. in Supp. of Pl’s Mot. for Limited Expedited Disc. at 3.
Physicians Interactive also seeks “a limited number of interrogatories regarding the information downloaded from the PI Website Servers, the location of the computers used to access the PI Website Servers, the identity of persons involved in the underlying activities, the user of the illegally downloaded data, and the scope of the disclosure of such information.” Id. Physicians Interactive has attached to its pleadings proposed document requests and interrogatories.
Physicians Interactive also seeks to enter the sites where the computers used in the alleged attacks are located in order to obtain a “mirror image” of the computer equipment containing electronic data relating to the Defendants’ alleged attacks on Plaintiff’s file server.
The Fourth Circuit has held that a plaintiff must make a clear showing of the irreparable harm it will suffer from the denial of injunctive relief. Dan River, Inc. v. Icahn, 701 F.2d 278, 284 (4th Cir.1983). In accordance with Blackwelder, Physicians Interactive has demonstrated that there is a likelihood of irreparable harm to it if this Court denies the injunction. To date, Physicians Interactive has alleged three computer attacks against its file server. The origin of the second attack is unknown. However, Physicians Interactive has provided affidavits of its information technology staff, which trace the source of the first attack to <www.mydrugrep.com >, Lathian’s website. Further, Physicians Interactive has alleged that it has traced the third attack to an IP address registered to Mr. Martinez. Physicians Interactive has shown probable cause to establish that the three hacking attacks described above are directly linked to the Defendants. This preliminary showing demonstrates irreparable harm to Physicians Interactive. Defendants argue that Physicians Interactive fails to show irreparable harm regarding future attacks because Physicians Interactive has, by its own admission, installed a software patch to protect Physicians interactive’s computer file server. Defendants’ argument has little merit. Although Physicians Interactive has indeed stated that it has installed a software patch that corrects its file server’s current security vulnerabilities, such electronic security systems are not foolproof. The possibility still remains that Physicians Interactive’s system could continue to be the target of Lathian’s computer hackers. Such future Lathian attacks, if successful, would cost Physicians Interactive time and money through investigation and clean up.
*5 The Court holds that the likelihood of irreparable harm to defendant, if the Court grants injunctive relief, is non-existent compared to the likelihood of harm to the plaintiff if the Court does not grant injunctive relief. Under the second prong of Blackwelder, the Court must balance the likelihood of irreparable harm to the plaintiff against the likelihood of harm to the defendant. See Blackwelder, 550 F.2d at 195. Physicians Interactive argues that the likelihood of irreparable harm to the Defendants is slim, because “defendants Martinez and Lathian will suffer no legally cognizable harm if they are required to stop accessing the PI Website Servers and to stop using or disclosing Physicians Interactive trade secrets and other confidential and proprietary information they have illegally obtained.” See Pl.’s Prelim. Inj. Mem. at 28. The Court agrees with this argument. Injunctive relief is proper in this case for two reasons. First, injunctive relief is proper because any injunctive relief that this Court will grant will not prohibit the Defendants from using the authorized, public functions of Physicians Interactive’s website. Second, any injunctive relief that the Court will issue will not infringe upon Lathian’s right to legally compete within the marketplace for its services. Additionally, the Court recognizes some merit in Defendants’ assertion that Physicians Interactive’s proposed injunction request is vague. Indeed, the Court finds that Physicians Interactive’s proposed injunctive request is overbroad and accordingly will issue a more narrowly tailored form of injunctive relief in a separate order.
The Court holds that Physicians Interactive has sufficiently shown a likelihood of success on the merits at this stage of the pleadings on all of its Counts. The third prong of Blackwelder requires Physicians Interactive to demonstrate to the Court that it is likely to succeed on the merits of all claims. Counts One, Two, and Three of Plaintiff’s First Amended Complaint allege that Defendants violated subsections (a)(2)(C), (a)(4), and (a)(5) of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. s 1030. Counts Four and Five of Plaintiff’s First Amended Complaint allege that Defendants violated the Virginia Computer Crimes Act (“VCCA”), Va.Code Ann. ss 18.2-152.3, -153.4. Count Six of Plaintiff’s First Amended Complaint allege a violation of the Virginia Uniform Trade Secrets Act (the “VUTSA”), Va.Code Ann. ss 59.1-336 et seq. Finally, Count Seven of Plaintiff’s First Amended Complaint allege a trespass on chattels under Virginia common law.
*6 intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains-… (C) information from any protected computer if the conduct involved an interstate or foreign communication. 18 U.S.C. s 1030(a)(2)(C).
A violation of 18 U.S.C. s 1030(a)(4) occurs whenever a person: knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value … 18 U.S.C. s 1030(a)(2)(C).
In YourNetDating, Inc. v. Mitchell, 88 F.Supp.2d 870 (N.D.Ill.2000), the Northern District of Illinois held that the plaintiff had shown a likelihood of success on the merits of its CFAA claim when defendant was alleged to have hacked into its computer file server. In EF Cultural Travel BV v. Explorica, Inc ., 274 F.3d 577 (1st Cir.2001), the First Circuit held that the competitor’s use of a “scraper” computer software program to systematically and rapidly glean prices from a tour company’s website, in order to allow systematic undercutting of those prices, “exceeded authorized access” within the meaning of the CFAA.
A violation of 18 U.S.C. s 1030(a)(5) occurs whenever a person “intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage.” 18 U.S.C. s 1030(a)(5)(A)(iii). The damage, or loss, must aggregate to at least $5,000 within a one-year period. 18 U.S.C. s 1030(a)(5)(B)(i).
Physicians Interactive has shown probable cause to demonstrate that Lathian’s information technology employee, Mr. Martinez, directed two computer attacks against its website and computer file server. Physicians Interactive traced the first alleged attack, which occurred on January 24, 2003, to < www.mydrugrep.com>. This website belongs to Lathian. Physicians Interactive traced the third alleged attack, which occurred on September 10, 2003, to an IP address assigned to Mr. Martinez. The January 24, 2003 alleged attack, according to Physicians Interactive, was designed to obtain technical information about the workings and security vulnerabilities of its website. The September 10, 2003 attack used a “software robot” to obtain proprietary information from Plaintiff. Both alleged attacks, at this stage of the pleadings, appear more likely than not to fit within the definition of 18 U.S.C. s 1030(a)(4). These attacks were an unauthorized entry into Physicians Interactive’s website. The activity was geared towards copying confidential data. The end result was the loss to Physicians Interactive of something of value-a significant amount of its confidential customer list information.
Courts have held that a loss under the CFAA includes remedial and investigative expenses incurred by the plaintiff. See, e.g., E.F. Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 584 (1st Cir.2001); Four Seasons Hotels and Resorts B.V. v. Consorcio Barr, S.A ., 267 F.Supp.2d 1268, 1321 (S.D.Fla.2003); Shurgard Storage Centers, Inc. v. Safeguard Self Storage, Inc., 119 F.Supp.2d 1121, 1126-27 (W.D.Wash.2000).
Physicians Interactive has stated in its affidavit that it has spent in excess of approximately $18,750 to assess the extent of the alleged attacks. See Pl.’s Prelim. Inj. Mem. at 16.
*7 Defendants contend that Physicians Interactive’s website authorized secret collections of customer lists and computer software code because the Physicians Interactive website does not have a sign posted on its opening page or elsewhere that sets limits on Internet users access to the site. While categorically denying involvement for the alleged attacks on Physicians Interactive’s website, Defendants argue that a website with no such posting is open to Internet users for any purpose, including the secret collection of data not generally available and computer code. This extravagant assertion warrants careful scrutiny, as this argument appears to circumvent the spirit of the CFAA, and any other type of statute designed to protect website owners against computer hackers. If Defendants’ argument has any merit, it is not for the Court to decide at this time. At this stage of the pleadings, based upon Physicians Interactive’s Complaint and allegations, Physicians Interactive is likely to succeed on the merits of a CFAA claim.
As with the CFAA claim, Physicians Interactive has shown a likelihood to succeed on the merits of its VCCA claim. Section 18.2-152.3 of the VCCA provides in pertinent part that this statute is violated when a person “uses a computer or computer network without authority and with the intent to: (1) Obtain property or services by false pretenses; … or, (3) Convert the property of another.” Section 18.2-152.4(A) makes it unlawful for a person “to use a computer or computer network without authority and with the intent to … (6) Make or cause to be made an unauthorized copy, in any form, … of computer data … residing in, communicated by, or produced by a computer or computer network.” Like the CFAA, the VCCA provides for a private right of action. See Va.Code Ann. s 18.2-152.12.
Physicians Interactive has traced alleged hacking attacks to Defendants, in which the Defendants obtained property by false pretenses. In this case the alleged computer hacker used a software robot to obtain proprietary information. Based upon this fact, it is highly likely that the hacker, or hackers, converted Physicians Interactive’s proprietary information for their own use. It is undisputed that Physicians Interactive’s proprietary information was its own property. Likewise, in allegedly converting this property, it is highly likely that Defendants also made an unauthorized copy of computer data. Again, Defendants argue that if such an attack occurred, it was not unauthorized because of the Plaintiff’s failure to place a usage restriction on its website. At this stage of the pleadings, this argument suggests that any Internet user has an open invitation to enter any website and to access the host computer’s file server for any purpose including copying customer lists and computer code. Also, at this stage of the pleadings, Defendants argument offends the fundamental principles of ownership of private property. Suppose a private homeowner posted a sign welcoming all authorized visitors into her home. Certainly one would not consider the welcome sign as extending permission to visitors to not only enter, but to plunder through locked drawers in order to obtain confidential checking account and credit card statements. Applying the same analogy to a computer file server does not require much extrapolation. The website invitation to Internet users to visit a website, gather information, and sign up for services is not an invitation for Internet users to hack the website’s host computer file server and copy company financial statements or personnel files. No sign need be posted on a website to protect the web host’s property rights. In sum, Physicians Interactive has shown a likelihood that it will succeed on the merits.
*8 Physicians Interactive has demonstrated a likelihood of success on the merits of its VUTSA claim because Physicians Interactive has shown unauthorized copying of customer lists and proprietary software codes. Physicians Interactive has also shown that customer lists and proprietary software taken in the previously described computer attacks are trade secrets. Physicians Interactive has also shown a likelihood that these trade secrets were misappropriated by Lathian or its agent, Mr. Martinez.
To succeed on a claim under the VUTSA, a plaintiff must demonstrate that (1) the defendant has acquired or disclosed a “trade secret” and (2) that the trade secret has been “misappropriated,” meaning that the person knows or has reason to know that the information was acquired by improper means. A trade secret is information that derives economic value from its secrecy and is subject to reasonable attempts to be maintained as secret. See Fordham v. Onesoft, Corp., No. 00 Civ. 1078-A, 2001 U.S. Dist. LEXIS 22918, *13 (E.D.Va.2001); Newport News Indus. v. Dynamic Test’g, Inc., 130 F.Supp.2d 745, 750-51 (E.D.Va.2001).
In order to demonstrate the existence of a trade secret, a plaintiff must demonstrate that the information derives economic value from its secrecy and that it was subject to reasonable attempts to maintain it as a secret. Information that would economically benefit competitors, were it to become known to them, satisfies the standard if that information is safeguarded from disclosure in a manner that is reasonable under the circumstances. See Dionne v. Southeast Foam Conv’g & Pack’g, Inc., 240 Va. 297, 302-03, 397 S.E.2d 110, 113-14 (1990). Numerous courts have held that customer lists and customer information are classic examples of trade secrets. See, e.g., North Atl. Instr., Inc. v. Haber, 188 F.3d 38, 44 (2d Cir.1999); Four Seasons Hotels and Resorts B.V. v. Consorcio Barr, S.A, 267 F.Supp.2d 1268, 1325 (S.D.Fla.2003).
Physicians Interactive’s information stored on its computer file server was not meant for the public domain and, therefore, was not stored in the public area of the website. Physicians Interactive created significant electronic safeguards to protect this information. Indeed, since the alleged attacks, Physicians Interactive has taken additional steps to safeguard this information through a software patch.
Under the VUTSA, “misappropriation” is defined to include the use of “improper means” to acquire knowledge of the trade secret, and the “improper means” are defined to include “theft”, “misrepresentation” and “espionage through electronic or other means.” Va Code Ann. s 59.1-336; see Fordham, 2001 U.S. Dist. LEXIS 22918 at *13; Newport News, 130 F.Supp.2d at 751.
There can be no doubt that the use of a computer software robot to hack into a computer system and to take or copy proprietary information is an improper means to obtain a trade secret, and thus is misappropriation under the VUTSA. Defendants again argue that their access to Physicians Interactive’s website was authorized because of Physicians Interactive’s failure to place a usage restriction on its website. Again, for the reasons stated earlier, this argument fails to negate Plaintiff’s likelihood to succeed on the merits.
*9 Physicians Interactive has shown a likelihood of success on the merits of its trespass on chattels claim. A common law claim of trespass on chattels occurs “when one party intentionally uses or intermeddles with personal property in rightful possession of another without authorization.” America Online, Inc. v. LCGM, Inc ., 46 F.Supp.2d 451 (citing Restatement (Second) of Torts s 217(b)).
Moreover, trespass occurs when the chattel “is impaired as to its ‘condition, quality, or value,” Id. (citing Restatement (Second) of Torts s 218(b)).
This Court holds that there is a likelihood that the two alleged attacks that Physicians Interactive traced to Defendants were designed to intermeddle with personal property in the rightful possession of Plaintiff. The third alleged attack, which used a software robot to hack into Physicians Interactive’s computer system and obtain proprietary information serves as a prima facie basis for a claim for trespass on chattels.
Defendants, as with all other of Plaintiff’s claims, argue that their access to Physicians Interactive’s website was authorized because of Plaintiff’s failure to place a usage restriction on its website. Again, for the reasons stated earlier, this argument does not negate Physicians Interactive’s likelihood to succeed on the merits.
Even if Defendants arguments that its access was not unauthorized because of Physicians Interactive’s lack of notice on its website has merit, it is not for this Court to decide at this stage of the pleadings. As Blackwelder holds, if the probable irreparable harm to the plaintiff in the absence of injunctive relief greatly outweighs the likely harm to the defendant if injunctive relief should issue, then “it is enough that grave or serious questions are presented; and plaintiff need not show a likelihood of success.” Blackwelder, 550 F.2d at 196. Physicians Interactive has shown irreparable harm through the costs it must incur to guard against future attacks.
Generally, an act is within the scope of the employment if (1) it was expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) it was performed, although mistakenly or ill-advisedly, with the intent to further the employer’s interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer’s business, and did not arise wholly from some external, independent, and personal motive on the part of the employee to do the act upon his own account. Newport News, 130 F.Supp.2d at 750 (citing Kensington Associates v. West, 234 Va. 430, 432, 362 S.E.2d 900, 901 (1987).
*10 At this stage of the pleading, it is unclear whether Physicians Interactive meets the test to establish respondeat superior as defined in Newport News. These facts will be elicited through discovery. However, based upon the given facts of the alleged attacks, this Court concludes that there is a substantial likelihood, at this stage of the pleadings, that the Plaintiff would succeed in proving that Mr. Martinez’s alleged actions were within the scope of his employment. Thus, Physicians Interactive succeeds in proving a likelihood of success on the merits on all of its claims.
This Court holds that there is a strong public interest in granting preliminary injunctive relief in this action. The facts alleged by Physicians Interactive, if true, violate several federal and state criminal and civil statutes. This Court has an obligation to enjoin any alleged computer hackers from continuing to attack and steal Physicians Interactive’s proprietary information.
The Court will grant Physicians Interactive limited expedited discovery. Under a tailored form of injunctive relief issued in a separate order, Physicians Interactive satisfies the requirements for expedited discovery under the Fimab-Finanziaria, Semitool, and Religious Technology tests. In addition, Physicians Interactive meets the requirements for expedited discovery because it has successfully met the burden of all of the prongs of Blackwelder. Also, this case presents the Court with unusual circumstances or conditions that would likely prejudice the party if they were required to wait the normal time to initiate discovery. In this case, electronic evidence is at issue. Electronic evidence can easily be erased and manipulated. Physicians Interactive’s expedited discovery is limited, however, to the proposed set of document requests and interrogatories that it provided to the Court in its Motion for Limited Expedited Discovery.
Physicians Interactive is also granted limited expedited discovery to enter the sites where the computers used in the alleged attacks are located and to obtain a “mirror image” of the computer equipment containing electronic data relating to Defendants’ alleged attacks on Physicians Interactive’s file server. This discovery is limited only to information on Defendants’ computers related to the alleged attacks, and must be done with the assistance of a computer forensic expert.
As discussed above, Physicians Interactive meets its burden under Blackwelder and thus the Court will grant it preliminary injunctive relief. Physicians Interactive has shown irreparable harm. Defendants have failed to show they will suffer irreparable harm by the Court’s grant of injunctive relief. Physicians Interactive has overwhelmingly shown a likelihood of success on the merits. Finally, there is a strong public interest in granting this injunctive relief.
For the foregoing reasons, Plaintiff’s Motion for a Temporary Restraining Order and Preliminary Injunction is GRANTED. Plaintiff’s Motion for Limited Expedited Discovery is also GRANTED. An appropriate order will issue. The Clerk is directed to forward a copy of this Memorandum Opinion to counsel.
*11 THIS MATTER is before the Court on Plaintiff Physicians Interactive’s Motion for a Temporary Restraining Order and Preliminary Injunction, and Plaintiff’s Motion for Limited Expedited Discovery. The Court previously issued a Memorandum Opinion stating its reasons for the following order.
ORDERED that Plaintiff’s Motion for a Preliminary Injunction is GRANTED. It is further ORDERED that Plaintiff’s injunctive relief shall consist of the following: (1) to enjoin Defendants from engaging in any activity beyond the scope of a normal user or guest to Plaintiff’s website, < www.physinteractive.com>, including the use of any “software robots” to obtain data, to copy data or computer code, or any other type of behavior designed to compromise the data or security of Plaintiff’s website or file server; (2) using any information obtained in violation of (1); and (3) using or disclosing any information that Defendants may have obtained in connection to the computer attacks Plaintiff alleges in its pleadings.
It is also ORDERED that Plaintiff’s Motion for Limited Expedited Discovery is GRANTED. It is further ORDERED that Plaintiff’s expedited discovery be limited to the proposed set of document requests and interrogatories that it provided to the Court in its Motion for Limited Expedited Discovery. Plaintiff is also GRANTED limited expedited discovery to enter the Defendants computer server, Mr. Martinez’s work and home desktop and notebook computers, and any sites where the computers used in the alleged attacks are located, in order to obtain a “mirror image” of the computer equipment containing electronic data relating to Defendants’ alleged attacks on Plaintiff’s server. This discovery is limited only to information on Defendants’ computers related to the alleged attacks, and must be done with the assistance of a computer forensic expert. The Defendants have ten (10) days to respond and five (5) days to file objections from the date of service.
The Court ORDERS Plaintiff to pay a bond in the amount of One Hundred Thousand ($100,000) Dollars, pursuant to Fed.R.Civ.P. 65(c). The Clerk is directed to forward a copy of this Order to counsel.

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Authors: Klimenko, Vladimir V.; Tereshin, Alexey G.
The paper deals with global energy perspectives and forthcoming changes in the atmosphere and climate under the influence of anthropogenic and natural factors. In the framework of the historical approach to energy development the forecast of the future global energy consumption for the present century is elaborated, and its resource base and the global impact of the power sector on the atmosphere and climate against the background of natural factors influence are studied. It is shown that, following the historical path of global energy evolution, the global energy consumption will remain within 28–29 billion tons of coal equivalent (tce) by the end of the century, with CO2 emissions peaking in the middle of this century. In this scenario, the CO2 concentrations will not exceed 500 ppm, and the global temperature should rise by 1.5 °C by 2100, with the growth rate not exceeding the adaptation limits of the biosphere.
Keywords: energy, climate change, carbon dioxide emission.
Energy is a fundamental base of the evolution of civilization, and the twenty-first century poses for the world energy sector a challenging task of ensuring sustainable development of human society. The progressing growth of population will undeniably lead to the necessity of accelerated development of many regions of the world, and, as a result, to enhanced demand for energy in the nearest decades. Thus, to provide fuel and energy resources to the world economy is one of the principal problems posed to humanity. On the other hand, today energy sector is considered as one of the principal factors entailing global environmental change, which overrides all other anthropogenic factors and compares with powerful natural forces in its impact on the climate of the planet (see Solomon et al. 2007). The concern about the scale of observed climate changes (in particular, an increase of the mean global temperature by 0.8 °C over the past 120 years) and anxious projections of further warming (up to 5 °C over the current century) make the ecological policy, along with the state of the resource base, one of the principal regulators of the world energy development.
There have been a great number of publications concerning the above problems over the past decades, and these problems have been in the centre of attention of leading national and international institutions. However, great controversy still exists in the opinions as to the global energy perspectives and the scale of their associated environmental and climate changes.
At the same time, it is quite understandable that without a more or less clear view of the future energy use, one cannot build realistic scenarios of its impact on the environment and climate and develop an efficient adaptation policy. A question thus arises of whether long-term forecasts of energy demand are feasible at all? Many experts, bearing in mind an extensive negative experience in this field (see, for example, a review of scenarios of global energy consumption in Klimenko et al. 2001), tend to give a negative answer to this question.
In our opinion, the situation may prove to be not so hopeless if one resorts to a historical extrapolation approach that is widely known in contemporary sociology and economy as the theory of institutional changes (see North 1990), which is based on the concept that the history of complex systems development predetermines their future behavior for many years ahead. In the present work we set ourselves the task to outline the direction of the world energy development, based on the principal trends in its historical evolution, and to assess, from the same standpoint, resource availability and the most probable impact on the global climatic system.
1) Stabilization of the national per capita energy consumption at the level primarily determined by climatic and geographic factors (see Klimenko 1994). This process has already been completed in the most developed countries (see Klimenko et al. 2001; Energy Statistics Yearbook 2009; BP Statistical Review… 2009; International Energy Annual 2009; Demographic Yearbook 2009).
2) Steady and nearly linear decrease of the carbon intensity of global energy as a result of structural changes in the world fuel mix that lingered for more than 100 years (see Klimenko, V. V., Klimenko, A. V., Andreichenko et al. 1997).
The realization of the former tendency should lead to the fact that the global per capita energy consumption will reach 2.9–3.0 tce/year, which, by the way, is quite close to the present level (2.6 tce per capita in 2009); as a result, since the Earth's population is expected to reach 9.5 billion by 2100 (see World Population… 2009), the energy consumption will make 28–29 billion tce/year, which is 1.6 times above the present level. Thus, the historical approach prohibits the energy consumption increase to 60, 100, and, all the more, 200 billion tce/year over the present century, which frequently conceded by the authors of the most radical energy scenarios (see Nakicenovic and Swart 2000).
The preservation of the latter tendency means that the growth of the anthropogenic impact on the climatic system steadily slows down and, therefore, one can expect that the anthropogenic emission of CO2 will fairly soon, within the next quarter of century, reach its maximum. There is no any mysticism in the steady and, apparently, irreversible decrease of the carbon intensity. Moreover, this fact can be philosophically substantiated in terms of the principle of progressive simplification, a phenomenon of widespread occurrence in nature and social life and observed not only in engineering, but also in science, art, philosophy, and theology (see Toynbee 1988). As applied to the energy sector, this principle is manifested in a gradual transfer from more complex, ‘conserved’ energy sources to more elementary, natural. Such is the trend of global energy development from coal to oil, then to gas, and, finally, to renewable (solar, wind, tidal etc.) sources.
A necessary test for consistency of any energy scenario includes assessment of its fuel and energy reserves' availability. Surprisingly as it may seem, the amount of fossil fuels expected to be consumed in many previous ‘high’ energy consumption scenarios did exceed not only its proven recoverable reserves, but often also hypothetical additional resources.
In the present work to estimate the consumption of hydrocarbon fuels (oil and natural gas) we made use of the so-called ‘depleting resource consumption concept’ (Energy and Nuclear Power… 1985) which suggests declining production rates of a resource as its stocks are gradually depleted. In this case, the cumulative consumption trend of the resource is described by a logistic function with an exponential initial portion and an asymptote defined by the ultimate amount of recoverable reserves. For the latter we accept the sum of discovered recoverable reserves and prospective additional resources, which poses the theoretical limit of the availability of this kind of fuel from the geologic and economic viewpoints (in terms of the World Energy Council (WEC) [see WEC Survey… 2001]). In this respect the present research differs from our previous work (see Snytin, Klimenko, and Fedorov 1994) where we took no account of additional oil and gas resources, which resulted in a slightly distorted projection of the structure of global energy balance, envisioning continuous increase of the coal share and, vice versa, decrease of oil and gas share already from the beginning of the current century. In reality, the last decade showed that oil has preserved its leading position in the world fuel mix, while coal consumption, increasing with the annual rate of 4 %, left natural gas behind.
Fig. 1 shows a record of changes of discovered recoverable reserves of hydrocarbon fuels over the past 60 years (according to BP Statistical Review… 2009; International Energy Annual… 2009; Energy and Nuclear Power… 1985; WEC Survey 2001). Evidently, the estimates for oil, as well as for gas resources have changed considerably: as compared with 1950, they have increased by an order of magnitude, regardless of current high production rates (about 5 and 4 billion tce/year for oil and gas, respectively). However, it is quite clear that this situation cannot last indefinitely long, and the curve shapes in Fig. 1 show that annual build-up of oil resources today nearly match oil production rate, and the situation with gas will obviously become the same over the nearest decade or two. Thus, the global proven recoverable oil and gas reserves are currently about 240 billion tce each, and the ultimate recovery (including additional recoverable resources (see WEC Survey… 2001), comprises 620 and 490 billion tce, respectively.
Fitting the historical series of the cumulative oil and gas production (see Energy Statistics Yearbook 2009; BP Statistical Review… 2009; International Energy… 2009) by a logistic function with ultimate oil and gas reserves as asymptotes determines the trend in the annual production of hydrocarbon fuels for the nearest decades (Figs 2 and 3). The genetic forecast assumes that these kinds of fuel will cover some 40 % of global energy demand by 2050, but less than 10 % by the end of the century. For comparison in Figs 2 and 3 the principal scenario of the WEC and International Institute of Applied System Analysis (WEC/IIASA) (see Nakicenovic, Grubler, and McDonald 1998) is shown, according to which the total consumption of oil will fully deplete its resources by 2100, and the total consumption of natural gas will even exceed its ultimate resources. The same features are characteristic for the scenario B2 of the Intergovernmental Panel on Climate Changes (IPCC) (see Nakicenovic and Swart 2000). Although this scenario is not specified as a basic one, it assumes moderate demographic and economic growth parameters and is placed in the centre of the spectrum of forty alternative energy development scenarios presented in (Ibid.).
To keep the tendency for specific CO2 emission decrease with the growing energy production, the suggested genetic forecast requires that the share of coal in the global energy balance be maintained at a level of 15–20 %. Thus, this ‘clean energy’ scenario assumes that non-fossil energy sources will cover about 30 % of the energy demand by 2050 and up to 65 % by 2100 against present 20 % (Table 1).
However, the energy consumption parameters over the last decade point to prevailing growth rates of global coal consumption, primarily due to China and India. This tendency provides some evidence in favor of the so-called ‘coal bridge’ theory formulated three decades ago, according to which this kind of fuel should fill the gap between depleting hydrocarbon reserves and slowly developing renewable energy sources. To account for this tendency, an alternative scenario was developed, that put emphasis on coal whose annual consumption was estimated by a procedure analogous to that used with oil and gas (Fig. 4). The shape of fuel mix for this scenario (‘coal energy’), which expects that by 2100 the share of coal will increase to 30 % and non-CO2 emission energy sources will make about a half, is also presented in Table 1, along with the WEC/IIASA and IPCC data (see Nakicenovic, Grubler, and McDonald 1998; Nakicenovic and Swart 2000).
Considering the dynamics of the world fuel mix, one can note that the long-term expectations associated with the development of nuclear energy technologies (specifically, the WEC/IIASA scenarios [see Nakicenovic, Grubler, and McDonald 1998]) projecting a growth of the annual nuclear power production over the current century up to 25–40 trillion kWh, which is equivalent to annual combustion of 8–13 billion tce at thermal power plants1) have not come true: most experts (see International Energy Outlook 2009; World Energy… 2008) do not see the possibility that the present nuclear electricity production (about 2.8 trillion kWh/year) will increase considerably. Thus, the base scenarios both of the US Department of Energy (see International Energy Outlook… 2009) and International Energy Agency (see World Energy Outlook 2008) suggest that the annual nuclear electricity production will span the range 3.5–3.8 trillion kWh over the period to 2030. Thus, the share of nuclear energy in global energy consumption will comprise no more than several percent. Hydroenergy, regardless of expected increase of its production rate (at present one third of the economic global hydro potential is already harnessed), too, will be able to cover no more than 10 % of the total energy demand. As a result, by 2100, to implement the genetic scenario will require the energy production from non-traditional renewable sources to increase to 16–18 billion tce/year or about 50 trillion kWh/year, which is quite possible, since these production rates are well below the technical potential (and just about three times as high as the economic potential calculated for the conditions at the beginning of this century) of both solar and other kinds of renewable energy (Table 2) whose utilization rates have grown consistently by 8 % a year over the past three decades (see Energy Statistics 2009; International Energy Annual… 2009).
The structure of the world energy balance suggested in the present work for the forecast of global energy consumption up to 2050 is quite similar to that in (Nakicenovic, Grubler, and McDonald 1998; Nakicenovic and Swart 2000) (Table 1). Appreciable differences in the estimates for the shares of hydrocarbon fuels and non-CO2 emission energy sources arise closer to 2100, resulting from the fact that the status of energy technologies by this time is still difficult to predict. Nevertheless, the share of non-fossil energy sources that we expect by 2100 (55–65 %) is considered in a number of IPCC scenarios (i.e. A1T, A1B, and B1 scenarios) (see Nakicenovic and Swart 2000). Thus, even though we made use of quite a different approach to assess global energy perspectives, our suggested structure of global fuel balance does not generally contradict expert assessments for the development of energy technologies and, with regard to fossil fuels, it is fully provided by available natural resources.
Environmental characteristics of the suggested scenarios are determined by the carbon coefficient of global energy consumption (Fig. 5). One can see that, with the recent growing share of coal in the global commercial energy consumption, the long-term tendency for a decrease of carbon intensity reverses, approaching the current 1.9 ton CO2/tce from the minimum of 1.8 ton CO2/tce in 2000 but the subsequent decrease to the ‘clean’ scenario level by the end of the century is anticipated. Surely, such changes should appreciably enhance emissions of CO2 (and other greenhouse gases). These consequences and their associated global climate changes are considered below.
Dramatic scenarios of future global warming (see Solomon et al. 2007) (according to the most extreme of them, the global average temperature will increase by 5 °C over the current century, which has never occurred not only during the history of civilization, but also over the past 40 million years on the whole) are based on models of general atmosphere and ocean circulation simulations. As was repeatedly shown (for example, see Klimenko, V. V., Klimenko, A. V., and Tereshin 2001; Klimenko, V. V., Klimenko, A. V., Andreichenko et al. 1997), these models, while getting more and more complicated, are still incapable of adequately representing the observed climate changes and give widely scattered estimates for such an important parameter of a climatic system as the sensitivity to the content of greenhouse gases in the atmosphere, which, according to various estimates (their review is given in Solomon et al. 2007), varies in the range 1.5–5.5 deg. with doubling CO2 concentration. To overcome these difficulties, we have developed a more simple regression analytical climatic model (RACM) (see Klimenko 1997, 2007; Klimenko, V. V., Klimenko, A. V., Andreichenko et al. 1997; Klimenko et al. 1994; Klimenko, Mikushina, and Tereshin 1999; Klimenko and Mikushina 2005; Khrustalev et al. 2008) which combines physical methods for representing thermodynamic processes in the ocean – atmosphere system and statistical methods for correlating their impact (temperature responses) with external perturbing factors. With a correct account for the effect of a few major natural climate forcing (solar, volcanic etc.) we estimate the sensitivity of the global climatic system at about 1.9 °C for doubled CO2 concentration, which falls into the lower range of estimates for this parameter (see Solomon et al.2007).
To estimate the changes in atmospheric CO2 content, associated with anthropogenic emission, we made use of the box diffusion model of global carbon cycle, developed at the Moscow Energy Institute (see Klimenko, V. V., Klimenko, A. V., Andreichenko et al. 1997). The CO2 concentrations calculated by greenhouse emission scenarios for the ‘clean’ and ‘coal’ global energy development models are shown in Fig. 6.
According to the RACM global climate change projections, assuming the basic forecast of principal climate forcing factors (Ibid.) and ‘coal energy’ scenario, the global average temperature will increase by about 1.3 °C within this century. Although this value even exceeds the maximum Holocene mark, it is, in terms of another important criterion (temperature change rate), probably within the adaptation limits of the biosphere. Simulation of the implementation of the ‘clean’ scenario similar in goals to those of the Kyoto Protocol (Fig. 7) shows that the measures suggested by this international agreement for climate stabilization, even though they cannot much affect the dynamics of the global average temperature, will still help to reduce the global warming by 0.3 °C. A comparison of the ‘clean’ and ‘coal energy’ scenarios (Fig. 7, curves 1 and 2, respectively) shows that the meeting of the Kyoto Protocol targets can favor a more environmentally safe energy development.
Local climate changes are expected to be quite diverse. Our survey for various parts of Russia (see Klimenko 2007; Khrustalev et al. 2008; Klimenko and Mikushina 2005) showed that in the nearest decades the average annual, winter, and spring temperatures will appreciably increase, which, in its turn, will affect a number of applied climate characteristics crucial for different economy sectors. Thus, a shorter and warmer cold period will require less fuel for heating (down 15 % from the present level by 2050) (see Klimenko 2007). Positive changes in transport and agriculture are also expected, which, too, will decrease the required energy consumption. Probably, permafrost areas are the most vulnerable to climate changes and will require huge additional investments in the existing infrastructure (see Khrustalev et al. 2008).
A comparison of temperature and precipitation fields for present warming and other historically warm periods which are useful analogs for the expected warming, such as the Atlantic Holocene Optimum (about 7–6 thousand calendar years ago) and the Medieval Warm Epoch (the late ninth – twelfth centuries) (see Klimenko 2001, 2004), shows that considerable temperature changes may occur only in several countries of the Northern hemisphere. Thus, considerably increased average annual temperatures are observed, along with Russia, only in Canada, the Northern part of the USA and Middle and Central Asia, whereas the temperature changes in Europe, South-East of the USA, and most part of China and India are either inconsiderable or even negative. These changes will almost everywhere be accompanied by enhanced precipitation, except for the North East of the USA, the Mediterranean, eastern Provinces of China and South-East States of India, where a certain desiccation takes place.
However, the scenarios of future climate changes, presented in other works, are quite different up to catastrophic ones (Fig. 8). Thus, the most recent IPCC review (see Solomon et al. 2007) does not exclude that the global average temperature may increase by 5 °C by the end of this century. Such a large-scale global warming will entail irreversible environmental changes in most regions of the world, including Russia, and, as a result, will have an extremely negative impact on all spheres of human activities. Undoubtedly, the ecological pressure on economy, in particular, in terms of the Kyoto Protocol, is much dependent on whether these projections will be proved or disproved. Provided the catastrophic forecasts are disproved, further tightening of Kyoto constraints will be less likely. At the same time, if things follow an unfavorable scenario, further consolidation of the environmental protection community should be expected. However, we have to repeat that the results of our long-term research provide firm evidence in favor of moderate scenarios of global climate changes.
Thus, our early forecasts (see Klimenko et al. 1994; Klimenko 1997) of global climate changes are still valid, which, by the way, evidenced by the fact that they fully represent the actual data for the past two decades (see Klimenko, V. V., Klimenko, A. V., and Tereshin 2001; Klimenko and Tereshin 2010). According to this forecast, we expect that the global average temperature will increase by another 1–1.5 °C over the course of the current century (Figs 7 and 8), which falls below the range of IPCC estimates for possible atmosphere and climate changes (see Solomon et al. 2007), even including scenarios assuming the world population decrease (B1), and is five times below the possible temperature rise due to the extreme scenarios group A1FI, which expects the most intensive growth of fossil fuel consumption. Nevertheless, the expected warming is far beyond the range of the natural variability of global climate, recorded in palaeoclimatic data over the past 2.5 thousand years (see Klimenko 2001, 2004); however, the warming rate (about 0.1 °C per decade) appears to be within the adaptation limits of the biosphere (Klimenko and Tereshin 2010). It can be concluded that both the warming expected to occur by the late twenty-first century and the increase in the atmospheric CO2 concentration will only slightly exceed the scale of global changes that have already occurred over the past century.
The time passed after the publication of the first results of the application of the genetic approach to forecasting future energy use showed that this approach gives encouraging results. Our early forecasts of world energy consumption represent the actual data for the last 20 years remarkably well.
The development of the method of historical extrapolation to assess the future global fuel mix allowed us to develop the perspective energy balance for the current century, in which a key role of fossil fuels will hold up to at least 2060–2065.
This historical scenario of global energy consumption is completely provided by the available resources of fossil fuel and does not contradict the assessments of prospective development of non-fossil energy sources.
An implementation of the historical scenario of energy development is expected to cause moderate atmosphere and climate changes which are quite comparable with the scale of global changes that have already occurred over the past century.
Local manifestations of expected climate changes will be very diverse. Thus, in the nearest decades in moderate and high latitudes we can expect a shorter and warmer cold period, as well as appreciable destructive phenomena in the permafrost zone of the Russian territory.
The study was supported by the Russian Ministry of Education and Science in the framework of the Federal Program ‘Scientific and Educational Staff of Innovative Russia’.
1 Recalculation of the so-called primary electricity, i.e. non-fossil electric power, is performed by the equation 1 kWh = 0.319 kgce, with the global average efficiency of thermal power plants taken to be equal to 0.385.
Demographic Yearbook 2006. New York, NY: UN, 2009.
Energy and Nuclear Power Planning in Developing Countries. Tech. Rep. Ser. 245. Vienna: Int. Atomic Energy Agency, 1985.
Energy Statistics Yearbook 2006. New York, NY: UN, 2009.
International Energy Annual 2006. Energy Information Administration, Washington, 2009.
International Energy Outlook 2009. Washington, D.C.: DOE/EIA, 2009.
Khrustalev, L. N., Klimenko, V. V., Emel'yanova, L. V. et al.
2008. Dynamics of Permafrost Temperature in Southern Regions of Cryolithozone under Different Scenarios of Climate Change. KriosferaZemli 12(1): 3–11. InRussian (Хрусталев, Л. Н., Клименко, В. В., Емельянова, Л. В. и др. Динамика температурного поля многолетнемерзлых пород южной зоны криолитозоны при различных сценариях климатических изменений. Криосфераземли 12(1): 3–11).
1994. An Influence of Climatic and Geographical Conditions on the Level of Energy Consumption. Physics. Doklady 39(11): 797–800.
1997. Why Carbon Dioxide Emission should not be Controlled. ThermalEngineering 44(2): 85–89.
2001. Climate of the Medieval Warm Epoch in the Northern Hemisphere. Moscow: MEI Publ. InRussian(Клименко В. В. Климат средневековой теплой эпохи в Северном полушарии. М.: Изд-во МЭИ).
2004. Cold Climate of the Early Sub-Atlantic Epoch in the Northern Hemisphere. Moscow: MEI Publ. InRussian (Клименко, В. В. Холодный климат ранней субатлантической эпохи в Северном полушарии. М.: Изд-во МЭИ).
2007. Climate Change Impact on the Heat Demand in Russia. Energiya 2: 2–8. InRussian (Клименко, В. В. Влияние климатических изменений на уровень теплопотребления в России. Энергия 2: 2–8).
Klimenko, V. V., Fedorov, M. V., Andreichenko, T. N., and Mikushina, O. V.
1994. Climate on the Border of Millennia. Vestnik MEI 3: 103–108. In Russian (Клименко, В. В., Федоров, М. В., Андрейченко, Т. Н., Микушина, О. В. Климат на рубеже тысячелетий. Вестник МЭИ 3: 103–108).
Klimenko, V. V., and Klimenko, A. V.
1990. Will Energy Development Result in Climatic Collapse? Teploenergetika 10: 6–11. InRussian (Клименко, В. В., Клименко, А. В. Приведет ли развитие энергетики к климатическому коллапсу? Теплоэнергетика 10: 6–11).
Klimenko, V. V., Klimenko, A. V., Andreichenko, T. N. et al.
1997. Energy, Nature, and Climate. Moscow: MEI Publ. InRussian (Клименко, В. В., Клименко, А. В., Андрейченко, Т. Н. и др. Энергия, природа и климат. М.: Изд-во МЭИ).
Klimenko, V. V., Klimenko, A. V., and Tereshin, A. G.
2001. Power Engineering and the Climate on the Eve of the New Century: Forecasts and Reality. ThermalEngineering 48(10): 854–861.
Klimenko, V. V., and Mikushina, O. V.
2005. History and Projection of Climate Change in the Barents and Kara Seas Basin. Geoecologiya 1: 43–49. InRussian (Клименко, В. В., Микушина, О. В. История и прогноз изменений климата в бассейне Баренцева и Карского морей. Геоэкология 1: 43–49).
Klimenko, V. V., Mikushina, O. V., and Tereshin, A. G.
1999. Do We Really Need a Carbon Tax? Applied Energy 64: 311–316.
Klimenko, V. V., and Tereshin, A. G.
2010. World Energy and Global Climate Beyond 2100. Teploenergetika 12: 38–44. InRussian (Клименко, В. В., Терешин, А. Г. Мировая энергетика и глобальный климат после 2100 г. Теплоэнергетика 10: 38–44).
1998. Global Energy Perspectives. Cambridge: Cambridge University Press.
2000.Special Report on Emissions Scenarios. Cambridge: Cambridge University Press.
1990. Institutions, Institutional Change and Economic Performance. Cambridge: Cambridge University Press.
Snytin, S. Yu., Klimenko, V. V., and Fedorov, M. V.
1994. A Forecast of Energy Consumption and Carbon Dioxide Emission into the Atmosphere for the Period until 2100. Physics – Doklady 336(4): 457–460.
Solomon, S., Qin, D., Manning, M. et al.
2007. Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge: Cambridge University Press.
1988. A Study of History. London: Oxford University Press.
World Energy Outlook 2008. Paris: OECD/IEA, 2008.
World Population Prospects: The 2008 Revision. New York: UN, 2009.
WEC Survey of Energy Resources. London: World Energy Council, 2001.
Source:BP Statistical Review 2009; International Energy Annual2009;Energy and Nuclear Power 1985; WEC Survey… 2001.

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