Posted by
Stemster on Friday, August 08, 2008 10:41:18 AM
I am outraged again this morning by what our green
cancer (Environmentalist) groups have cost the people of
Wisconsin.
The long and short of it is that the WI Sierra Club and
a group called Clean Wisconsin harassed the power company, WE Energies, for 8
years over a coal fired power plant to be built along Lake Michigan. The end
result was an increase in the cost of the plant of 940 million dollars, on
paper, but the cost is really much much higher. Once you include defending the
company from them for eight years, the cost probably triples.
The plant will be built, but only after adding $835
million in emissions control equipment to the plan. But the greens were still
not happy. Yesterday the paper said that they finally agreed to settle on a
'final' issue (Stop the harassment) in exchange for a $105 million dollar slush
fund to spend on their pet projects. Another article in the paper indicated
that flush with success, the Clean
Wisconsin group has already lined up to oppose another coal/biomass hybrid power
plan near Madison, WI.
This stupidity has to stop, and the best way to fight
fire is with fire.
Unfortunately I am not a rate payer of those utilities,
or I would already be on the way to the courthouse with a ripe new class action
suit and restraining order against the two groups. In my opinion, they conspired
to create an eight year ongoing level of harassment that ended up costing rate
payers literally billions of dollars for their obstruction of a perfectly legal,
desirable, and fully permitted power plant.
My class action suit would show the actual costs
created by the green harassment, and seek both actual and punitive damages to be
paid to the power company and rate payers. It would not be difficult to show an
ongoing level of harassment or economic damages incurred by these people against
the power companies engaging in a fully legal activity.
Then it would get a little more fun.
The next part would be prosecuting them under federal
law, specifically the Hobbs Act.
From the US DOJ Criminal Resource Manual Section
2403-Hobbs Act..(Link)
In order to prove a violation of Hobbs
Act extortion by the wrongful use of actual or threatened force, violence, or
fear, the following questions must be answered
affirmatively:
1. Did the defendant induce or attempt to
induce the victim to give up property or property rights?
The answer to this one is yes,
absolutely. Not only did they bilk them out of over a billion dollars, they
directly attacked " the right of commercial victims
to conduct their businesses, AND, the right to make business decisions and to
solicit business free from wrongful coercion." when they forced them to make changes in future plants, support
future green sponsored legislation, and so on.
"Property" has been held to be "any valuable right
considered as a source of wealth." United States v. Tropiano, 418 F.2d 1069,
1075 (2d Cir. 1969) (the right to solicit garbage collection customers).
"Property" includes. See United States v. Zemek, 634 F.3d 1159, 1174 (9th Cir.
1980) (the right to make business decisions and to solicit business free from
wrongful coercion) and cited cases). It also includes the statutory right of
union members to democratically participate in union affairs. See United States
v. Debs, 949 F.2d 199, 201 (6th Cir. 1991) (the right to support candidates for
union office); United States v. Teamsters Local 560, 550 F. Supp. 511, 513-14
(D.N.J. 1982), aff'd, 780 F.2d 267 (3rd Cir. 1985) (rights guaranteed union
members by the Labor-Management Reporting and Disclosure Act, 29 U.S.C. §
411).
2. Did the
defendant use or attempt to use the victim's reasonable fear of physical injury
or economic harm in order to induce the victim's consent to give up
property?
Again, yes, absolutely. They used the
threat of requiring expensive equipment and threat of delays in opening the
power plant to extort monies from the power company. Either the power company
had to settle, or they had to install an additional 200-300 million dollar
cooling tower system. In fear of spending 3x the money, and another eight years
of legal harassment, they settled.
A defendant need not create the fear of injury or
harm which he exploits to induce the victim to give up property. See United
States v. Duhon, 565 F.2d 345, 349 and 351 (5th Cir. 1978) (offer by employer to
pay union official for labor peace held to be "simply planning for inevitable
demand for money" by the union official under the circumstances); United States
v. Gigante, 39 F.3d 42, 49 (2d Cir. 1994), vacated on other grounds and
superseded in part on denial of reh'g, 94 F.3d 53 (2d Cir. 1996) (causing some
businesses to refuse operations with the victim sufficiently induced the
victim's consent to give up property, consisting of a right to contract freely
with other businesses, as long as there were other businesses beyond defendants'
control with whom the victim could do business).
Moreover, attempted extortion may include an attempt
to instill fear in a federal agent conducting a covert investigation or a
defendant "made of unusually stern stuff." See United States v. Gambino, 566
F.2d 414, 419 (2d Cir. 1977) (argument that FBI agent pretending to be extortion
victim could not be placed in fear is not a defense to attempted extortion of
the agent); see also United States v. Ward, 914 F.2d 1340, 1347 (9th Cir. 1990)
(an attempt to instill fear included a demand for money from a victim who knew
that the defendant was only pretending to be a federal undercover agent when he
threatened the victim with prosecution unless money was paid).
However, the payment of money in response to a
commercial bribe solicitation, that is, under circumstances where the defendant
does not threaten the victim with economic harm, but only offers economic
assistance in return for payment to which the defendant is not entitled, is not
sufficient to prove extortion by fear of economic loss. United States v. Capo,
817 F.2d 947, 951-52 (2d Cir. 1987) (solicitation of money from job applicants
by persons having no decision making authority in return for favorable influence
with employment counselors was insufficient evidence of inducement by fear); but
see United States v. Blanton, 793 F.2d 1553, 1558 (11th Cir. 1986) (inducement
by fear was proven by the defendant's solicitation of a labor consulting
contract, to help employer stop outside union organizing, when the solicitation
was accompanied by defendant's threat to form another union and begin organizing
employees if the consulting contract was not accepted).
3. Did the
defendant's conduct actually or potentially obstruct, delay, or affect
interstate or foreign commerce in any (realistic) way or
degree?
Most certainly. The power grid and WE
Energies are part of a national energy supply. Any power that WE Energies does
not generate from that plant will have to come from other sources. Those sources
include interstate companies and sources outside of WI, both regional and
Canadian. Likewise, when WE Energies has surplus power generation capacity, it
is sold on a national market
The Hobbs Act regulates extortion and robbery, which
Congress has determined have a substantial effect on interstate and foreign
commerce by reason of their repetition and aggregate effect on the economy.
Therefore, the proscribed offenses fall within the category of crimes based on
the Commerce Clause whose "de minimis character of individual instances arising
under [the] statute is of no consequence." United States v. Bolton, 68 F.3d 396,
399 (10th Cir. 1995) (upholding Hobbs Act convictions for robberies whose
proceeds the defendant would have used to purchase products in interstate
commerce), quoting, United States v. Lopez, --- U.S. ---, 115 S.Ct. 1624, 1630
(1995); material in brackets added; see also United States v. Atcheson, 94 F.3d
1237, 1243 (9th Cir. 1996) (robbery of out-of-state credit and ATM cards);
United States v. Farmer, 73 F.3d 836, 843 (8th Cir. 1996) (robbery of commercial
business); United States v. Stillo, 57 F.3d 553, 558 n.2 (7th Cir.
1995).
Hobbs Act violations may be supported by proof of a
direct effect on the channels or instrumentalities of interstate or foreign
commerce, as for example, where the threatened conduct would result in the
interruption of the interstate movement of goods or labor. See United States v.
Taylor, 92 F.3d 1313, 1333 (2d Cir. 1996) (extortion of money, unwanted labor,
and subcontracts on construction projects by threatened shutdowns and labor
unrest); United States v. Hanigan, 681 F.2d 1127, 1130-31 (9th Cir. 1982)
(robbery of three undocumented alien farm workers while they were traveling from
Mexico to the United States in search of work); United States v. Capo, 791 F.2d
1054, 1067-68 (2d Cir. 1986), vacated on other grounds, 817 F.2d 947 (2d Cir.
1987) (scheme to extort local job applicants had a potential effect on
interstate applicants who might otherwise be hired).
Indirect effects on such commerce are also
sufficient, as for example, where the obtaining of property and resulting
depletion of the victim's assets decreases the victim's ability to make future
expenditures for items in interstate commerce.
Taylor, supra (depletion of contractors' assets).
However, the Seventh Circuit has distinguished Hobbs Act cases involving
depletion of a business' assets from those involving the depletion of an
individual employee's assets which, the court has ruled, are not as likely to
satisfy the jurisdictional requirement of the Hobbs Act. United States v.
Mattson, 671 F.2d 1020 (7th Cir. 1982); United States v. Boulahanis, 677 F.2d
586, 590 (7th Cir. 1982). Other circuits have agreed where the extortion or
robbery of an individual has only an "attenuated" or "speculative" effect on
some entity or group of individuals engaged in interstate commerce thereby
diminishing the "realistic probability" that such commerce will be affected. See
United States v. Collins, 40 F.3d 95, 100 (5th Cir. 1994) (conviction for
robbery of a computer company employee reversed on grounds that theft of
victim's automobile with cellular phone had an insufficient effect on his
employer's business); United States v. Quigley, 53 F.3d 909 (8th Cir. 1995)
(upholding the acquittal, following guilty verdict, of defendants who beat and
robbed two individuals in route to buy beer at a liquor store).
4. Was the defendant's actual or
threatened use of force, violence or fear wrongful?
This is an easy one. The green groups
used the threat of ongoing legal harassment to take not only the 835 million in
pollution control upgrades, but a 105
million dollar slush fund for their pet projects. The Supreme Court also made a
broadly worded statement that "wrongful" has meaning in the Act only if it
limits the statute's coverage to those instances where the obtaining of the
property would itself be "wrongful" because the alleged extortionist has no
lawful claim to that property. The
green groups have no legally cognizable interest, ie owning the lake or
the atmosphere. At that point, taking the power company resources, especially
the 105 million dollar slush fund, and right to do business, is easily
demonstrated as wrongful under this section.
Generally, the extortionate obtaining of property by
the wrongful use of actual or threatened force or violence in a commercial
dispute requires proof of a defendant's intent to induce the victim to give up
property. No additional proof is required that the defendant was not entitled to
such property or that he knew he had no claim to the property which he sought to
obtain. See United States v. Agnes, 581 F.Supp. 462 (E.D. Pa. 1984), aff'd, 753
F.2d 293, 297-300 (3d Cir. 1985) (rejecting claim of right defense to
defendant's use of violence to withdraw property from a business
partnership).
However, the Supreme Court has recognized a
claim-of-right defense to Hobbs Act extortion in labor-management
disputes.
In a 1973 decision, the Court reversed the
conviction of union-member defendants who had used violence against an
employer's property, during an otherwise legitimate economic labor strike, in
order "to achieve legitimate union objectives, such as higher wages in return
for genuine services which the employer seeks." United States v. Enmons, 410
U.S. 396, 400 (1973). The Court reasoned that the legislative history of the
Hobbs Act disclosed that Congress had been concerned with attempts by union
officials to extort wages for unwanted and fictitious labor, to which employees
were not entitled, as contrasted with the policing of legitimate labor strikes
in general. Therefore, the Court concluded that the union members' use of
violence during the strike was not "wrongful" for purposes of Hobbs Act
extortion. The Supreme Court also made a broadly worded statement that
"wrongful" has meaning in the Act only if it limits the statute's coverage to
those instances where the obtaining of the property would itself be "wrongful"
because the alleged extortionist has no lawful claim to that property.
The environmental stupidity really needs to stop. There
is no excuse for causing WE Energies to spend over a billion extra dollars to
deal with these phony environmental groups. In the end, the results were very
expensive and very questionable. The proposed plant was already up to state and
federal standards, and permitted by all agencies required. Along come some bored
rich people wanting to save the planet and the people of southern Wisconsin are
out over a billion dollars.
People should be absolutely livid about this. I know
that I am. While my electric bill won't directly go up as a result of it, it
will eventually. Now emboldened with their victory and 105 million dollar pet
projects slush fund, they will soon be coming after my power company. They will
have this in their pocket as precedent, and will be that much harder to fight
off.
Congratulations DuMasses, you just cost people over a
billion dollars for negligible change. Hurrah for you.
Now you should pay the bill.
Stemster