tv Key Capitol Hill Hearings CSPAN June 2, 2015 11:00pm-1:01am EDT
et cetera, at one point clearly perhaps the saudis, others, thought the u.s. oil industry was a phenomena of high oil prices. that is not the case. in other words, many thought that this industry the shale oil and gas industry could survive only with high oil and gas prices. that is not the case. this is one of the points today. by the way, we had low natural gas prices for about six years right now, and shale gas production has sustained, in fact, grown. that's critically important. and why is that so important? because when if comes to thinking about energy diplomacy the idea that we can export the volumes that we have because we will match or meet their internal requirements is not just about volumes. what we're really exporting is competitiveness. i want to make that point is that anything you might consider in terms of the energy diplomacy objectives or goals, which are actually quite admirable they
will be sustainable and viable as long as this competitiveness exists because it's not just offering to send supplies somewhere. the market place is what is pulling them. whether it's ukraine or parts of europe or mexico as i'll talk about next year a great example. they would not be doing this if these supplies were from u.s. shores were not competitive in a lower priced alternative to other factors. and this is particularly important because if we define very simply what energy security is which is really we would argue reliable supply at affordable prices. let's take mexico. right now, there's a lot of interest in mexico because of the opening of the enp sector exploration production because of over 70 years of monopoly of the state oil company going to
be reversed, but that's actually not the biggest issue going on. the bigger issue is that fact that mexico imports a lot more natural gas for the united states. the committee knows they import 2 billion cubic feet a day. that number could go up to 5 or 6 billion cubic feet a day within the next ten years. it's a bigger impact because two things. one, all this will drive much more gas fire power generation if reforms work in the midstream and downstream in mexico and we hope they will. that should result in lower energy prices for the entire economy. we don't know yet if it's 10% lower, to% low30% lower, but the impact on that on the mexican economy competitiveness, this is the big picture. it's not so much the oil side is what i'm trying to say. it's the gas side and what we're about to do right there. that's an important factor.
now, it is said, and it is quite true, that mexico has substantial natural gas resources, but in this case the decision they made was if they tried to develop their own natural gas resources right now, it's so expensive that it made far more sense to import less expensive u.s. natural gas. that's a choice for competition. it's a choice for competitiveness, and, again, if you want to look at it from an energy policy program for the u.s., a tremendous success because as this goes forward that competitiveness, that lower price in efficiency is what is going to have a larger impact on the mexican economy in a huge contributor to what has already been troubled at times but a very successful u.s.-mexican relationship, so that's the arguments i want to put in front of you, that one, shale production is not a high priced
phenomena. also intrinsic to the supply volumes we have is the competitiveness of that. one, if it's part of u.s. energy diplomacy initiative, then that competitiveness needs to continue. that's going to undergird all of that in order to be successful. timely, u.s. infrastructure processes of regulations naturally, have to be equally competitive in order to allow this to be sustained. thank you very much for giving me the time. >> thank you and the next witness is alison cassidy, director of domestic energy policy for the center of american progress, and thank you very much for being with us and you're recognized for five minutes. >> thank you, chairman whitfield, ranking member rush and members of the subcommittee thank you for the opportunity to testify today. i'm director of the domestic energy. this is a nonprofit organization dedicated to improving the lives
of americans through progressive ideas and action. before i jump into my more specific comments on the energy diplomacy section of the draft i would like to highlight a topic that is not a subject of today's hearing, but i think should be and that is climate change, which, to me, is thee most urgent and challenging energy diplomacy issue of our time. climate change has become a priority in international relations because the climate science is so clear. a failure to act on climate change risks severe irreversible impacts on a global scale. as the committee considers the nation's energy policy and its interaction with the rest of the world, cap urges you to put climate change front and center of any policy you development. we can no longer afford to separate energy policy from climate policy. so with that introduction context in mind, i'll jump into a few thoughts on section 3104 of discussion of the draft about
cross border energy projects. as you know under current law, entities wanting to construct or operate cross borderlines are required to obtain a presidential permit. this section of the bill eliminates that requirement and instead requires the relevant federal agency to issue a ser tiff cant of crossing that is, unless the agency finds the cross border segment of the projects is not in the public interest of the united states, and i have a few concerns about this approach. first, the new process presumes that the project is in the public interest, placing the burden of proof on concerned stake holders to demonstrate it is not rather than asking the apply captain to make the affirmative case that it is. second, under the new process, the applicant needs federal approval for the portion of the project that physically crosses the u.s. border, even if the project itself spans hundreds of miles. finally, it omits review to just the cross border section of the
project. this makes little sense because we know these projects have environmental impacts well beyond the border. for a truly transcontinental project like a pipeline running through numerous states down to the gulf coast the current permits process is the only venue for the public and stake holders to examine and understand the potential impacts of the whole project that's under consideration. under the process established by the bill the review would be fragmented, state by state, and no one other than the project applicant would ever examine the project as a whole. i also have a few concerns about section 3106, the export section. this section sets a 30-day deadline upon completion of environmental review for the d.o.e. to issue a final decision for any organization to submit natural gas to a nonfree trade
country. the united states is well on track to become a net exporter of natural gas. to date they issued final authorizations to six facilities to export up to 8.6 billion cubic feet per day of lng, more than 10 % of daily u.s. natural gas consumption on top of what we already export to free trade countries like mexico. the existing d.o.e. permitting system appears to be working. it puzzles me, therefore, why we need a bill that seeks to fast track new d.o.e. approvals. to be clear, cap does not oppose lng exports in principle, but we have concerns about placing an artificial deadline on agency review of permit applications. congress should not preclude d.o.e. from taking the time it needs to make a consider and well-informed decision particularly on the most difficult projects. the stakes are simply too high for natural gas consumers here in the united states. last year the energy information administration
concluded that increased lng exports lead to increased natural gas prices, and these higher natural gas prices create economic winners and losers. certainly natural gas producers and employees of natural gat producers are the clear winners but, for example manufacturers that use natural gas as a feed stock would face higher energy costs. in short, the decision to export significant volumes of natural gas, even to the allies, is a complex one that should not be made lightly given the potential consumer impacts here in the united states. this decision is made even more complicated given the growing demand here at home for natural gas in both the electricity sector and transportation sector. so if the united states over commits to natural gas exports via long term 20-year contracts, consumers here could pay the price, and that's why the deliberative process is so important. with that i will end my testimony and happy to answer any questions. >> thank you, ms. kaz dicassidy, and
the next is ms. emily hammond professor of law at northwestern university law school. thank you for joining us. you are recognized for five minutes. >> thank you chairman ranking member, and distinguished members of the subcommittee, i appreciate the opportunity to testify today. in my testimony, i would like to highlight several concerns that undermine the discussion drafts, important goal of aup mied energy policy. these concerns relate specifically to sections 30102, 30104, and 3106. in short, those provisions fail to properly account for the reliability, fuel diversity, and environmental implications of energy policy. they fail to undertake work in a
deliberative and well reasoned manner. starting with the interagency task force. despite the lines between energy and the environment no longer truly exist, the composition of the task force has significant gaps that will hinder rather than help the development of a comprehensive energy policy. most critical is absence of agencies within environmental expertise, but other key agencies like those whose missions relate to jobs, to the economy, and to transportation are also omitted from the task force. as demonstrated by the qer, which we heard about this morning, all of these agencies can successfully work together towards unified energy policies, and administrative law will show that when agencies collaborate in this way, they are more successful in that they tend to have broader stake holder
support and the criteria's plan should include environmental issues and especially climate change. failing to do so will only deepen the current dysfunctions in our energy regulatory system and in the energy markets. sec, the authorization for cross border infrastructure projects does not make clear how d.o.e. implements authority differently from how it currently does under the presidential permit framework. current procedures do account for environmental issues and those should be retained. i note as well that the provisions striking portions of the federal power act and in particular section 202f threaten to undermine important backstopped authority that the federal power act retains that
allow it to ensure grid reliability for projects that cross international boundaries. i urge the subcommittee to carefully re-examine the striking provisions of this section. final finally, the applications of are concern. even if they are able to act quickly in circumstances it needs flexibility given the very complex issues at stake. opposing a rigid deadline threatens more delay. first deadline suits which are contemplated by the discussion draft tend to impose additional delays even if those suits are successful. and second, with stakes so high with such engaged stake holders, judicial challenges are inevitable, all right. we can predict lawsuits no
matter doe's decision, and if d.o.e. is rushed in making a determination, the record is less likely to be carefully developed. the agency's reasoning may not be clear, and, again it's likely to be more vulnerable to remand and in position of further delays. to summarize, the relationship between energy and the environment must be considered as the united states seeks a policy. careful to administration procedure in role in promoting good government must accompany any new energy statutes. if we move forward with u.s. energy policy with these principles in mind we can make substantial improvements for the future. thank you for the opportunity to testify today, and i look forward to your questions. >> thank you and that concludes the opening statements. i just want to make an announcement that we're
expecting some votes around 1: 30 or so. there's only six members here so we each get five minutes, that's 30 minutes. i think that we can make it through and give you all an opportunity to respond if we go efficiently and quickly, so i'm going to recognize myself for five minutes to get mine in bobby, and then we'll go from there. ms. cassidy and ms. hammond both made comments about climate change, and that is something we are all concerned about, but in the federal government there's 68 initiatives on climate change. there's been a total of 36 or 37 billion dollars spent by the u.s. government alone each year just on climate change. so the difference is we have with president obama truthfully is that he views it as the most
important issue facing mankind, and some of us have different views that a job, access to health care, clean water, affordable energy, economic growth are very important also. i appreciate y'all's comments, and now mr. palone is coming that's another person. i have to hurry. okay. i want to make that comment. now in france, there's a large percentage of electricity produced from nuclear, and germany made the decision, i guess, to stop all production of energy by nuclear. is that still the policy in germany? >> that is the policy. we decided three days after the fukushima event in 2010 to phase out.
we had an earlier change in 2000 with another change in 2009, and fukushima fukushima, the key event in germany, and at the moment the current situation is that half of the nuclear plant as have been phased out after 2011, and the rest the eight of them are still in operation. they will be phased out by 2021. >> of course you have been -- in germany, they are moving quickly to renewable energy, wind solar, whatever. what's the result been? i mean, has it affect your reliability? the retail prices of electricity or not? >> it's affected the price of the consumer considerably. i think the price went up by 30% for electricity for the private house households. perhaps one conclusion is, and i'm not here taking any particular position if you change policies to a pragmatic
manner without too much momentary intervention i think the change in germany has forced us to react very quickly. it had some rather unintended consequences at the moment. we -- the main importer of u.s. coal. now, of course, this is a little bit odd and awkward to have more coal. >> i was told that last year two-thirds of u.s. coal exports went to europe. >> correct. so we're supporting west virginia. a consequence of our decision to phase out nuclear was de facto to promote coal. for the moment by prediction is this policy will not change none of the major political parties including the one to which i belong intends to change however, i think if i
listen to correctly to what my wife tells, 34 me, opposition among the people are growing to this policy. the question is is that affordable what we're doing at the moment in the long run? germany has many issues as most other states. we need more schools. we need better universities. we need more streets. the question is, can we focus our budget in the way we did on one issue alone which is -- >> you know, in your testimony, you talked about europe being more vulnerable is that what you refer to? >> that is correct. >> the policy about the renewables and the push -- >> policy about renewables together with the policy of phasing out nuclear power means that we need more energy in the future as regards gas. we have a very special
situation. we can get more gas from russia, from iran from algeria, or at the moment from norway, but norway is about to peak. in other words, our choices are not considerable here. for a moment i want to come back to u.s. policy. the u.s. has criticized us, of course, for being dependent too much on russian gas. correct, almost 40%. at the same time, now, of course, in an era of abundance one would hope the europeans would hope that the united states allows for more gas to be exported to europe in this situation where we need stronger support with our alternatives and i think even small additional imports from the united states would help in a symbolic manner. in other words, the position in europe you hear often is on the
one hand u.s. criticizes we are too dependent on russia or iraq or whoever on the other hand the u.s. does not allow and facileitate exports to europe. i think this is a position that may be reconsidered. >> okay. at this time, we're going to recognize mr. rush for five minutes. >> i want to thank you, mr. chairman. mr., i just want to take a moment to welcome to the committee, ms. cassidy, who served for many, many years as an expert staffer under our former chairman, and she was on this side of the table, and now she's on that side of the table, but i just wanted to welcome her back, so good to see you again, and you're continuing outstanding work. thank you so very much. i want to ask you a question and also ms. hammond. it's in response to comments
from the chairman. in your opinion, and both of you can respond is fine, our energy and environmental issues inherently related and why is it so very very important that any kind of comprehensive energy policy also integrate environmental concerns in that policy and anything specific with the -- [ inaudible ] i'll ask both of you the question. please. >> thank you, mr. rush. >> did you turn it on?
>> yes. >> project. >> yes. >> you have a great voice. >> yes, it is true that energy is in the making, and inevitably impact and impacted by environmental concerns. the energy sector is where we see the great estest greenhouse gas emissions. that is pure fact, and the question is what to do about it. if we make energy decisions that do not consider environmental duplications we will see further market dysfunctions. we'll see the loss of fuel diversity, and we will see decreasing environment. the very minimum the task force include environmental agency, and environmental considerations are enumerated as the criteria
for the consideration of the plan itself. thank you. >> thank you. i would add to that. the energy infrastructure decisions we make today will last decades. so we decided to build a pipeline today and new energy production facility. we're looking in decades of new emissions or not, and that is why it's very important to consider whenever we consider energy policy consider climate policy as well and think through how will this energy project affect negatively or positively our future. >> the gentleman yields back. we have call vote, and i'll reduce the amount of time to three minutes for everyone so everyone gets a chance. mr. olson, you are recognized for three minutes. >> thank you, mr. chairman, i'm with you. witness, i apologize, we are
behind, energy superstar and new votes come in at 2:00, so i have one question for you and it's about mexico. they are on the verge of revolution for energy. changes, changes changes. moved to dekz in 19 -- moved to texas in 1972. 1979, got my license. sent down to get in line for gasoline. it depended upon the long line get gas it was an even number long line, and now with all this new production america, our neighbors to the north canada, and mexico i see a vision of opec going away. my question is sir what's the one thing we and congress can do
to make that reality, make this ahead of opec? >> thank you excellent question, and i will note usually we put the warm up before the rock stars. might help that for the next committees. all right. i'm back. that's a very important point. opec had a meeting, and there was a chill through the land and now, you know they can meet or not meet does not matter to us, if, in fact, we seize the opportunity of abundance, and i think our opportunities with mexico are profound. give credit to the president for trying to reverse 60 years of the policy that basically discouraged first world technology. the opportunities to spend a lot of time working with mexico on something that's pedestrian but incredibly important which is data quality. the ability to have north american energy security depends on having good data, shared analysis shared understandings and transparency across our
analytical platforms. that's a boring but incredibly difficult and important thing to do. our energy administration here is the gold standard, and i think we should spend a lot of time, requiring resources, we want mexico to join us. if we have a shared data foundation, and we have thoughtful laws that as our colleagues suggestsed provide time for environmental deliberation, but then actually require a decision we can have a system. >> shared data, number one. congress set -- that's the best to do right now? >> that's something you can get done right now. >> that's better. i like that. yield back, sir. >> yielding back, and i recognize the gentleman from new jersey for three minutes mr. plum. >> thank you, mr. chairman. i just wanted to follow up on a few statements made earlier about section 3104. this makes and end run around the policy act eliminating meaningful review of theimpacts, narrowing the review to the cross border
segment of the energy project. the tiny portion that physically crosses the national boundaries, so ms. kaz di does limiting review to just a small sliver make sense to you? what are some of the draw bakes of looking at just the cross border segment of the pipeline or transmission line? >> thank you for the question. no, it does not make sense to me simply because if you look at the controversial pipeline and others kmmed, the controversy is never around impacts at the border. we all know even the best constructed highest policy pipeline pipeline, and accident can happen. it spans through hundreds of miles and aquifers over private and public lands and environmental review the purpose of the review is to make sure that policymakers have all of the facts about the impacts of the potential impacts of the
project overthe entire course of the prompt not just the small part at the border. in order to better understand how to mitigate potential impacts, so in order to understand the potential consequences of a project, we need to look at it in its entirety and not just at the border. >> how about the legislation's presumption that cross border projects are in the public interest? how would just looking at the cross border impact an agency's ability to determine whether there's projects in the public's interest. >> the presumption of approval stacks the deck against a stake holder with concerns about whether or not a project is in the interest. it forces concerned stake holder rather than forcing the applicant to make the case it is. that is a higher burden of proof. the way the bill is written, it's focused on a narrow part of the proposal, did does not look at the potential impacts. it's harder for a concerned stake holder to make the case
that this tiny part of the project is not in the public skbres interest. >> well, thank you. i think the energy infrastructure projects are more than just a border crossing. they will last for decades, and fundment tally we have to look before we leap, but that's just basic common sense, so we should not be carelessly narrowing or creating loopholes in the law. we have to understand the impact of the projects before they are constructed so that we can protect public healthy and safety in the environment and ignoring impacts is not going to make them disappear, thank you, again. thank you, mr. chairman. >> lancaster county does not have any wells and how is the county benefitting from the shale, the boom we mentioned,
there's no wells drilled in the county. >> well, first and foremost, what we've seen is pennsylvania put in impact fee with well counties and coupes who end up having pipelines. those kinds of funds that are coming back are used to conserved open space, preserved ag preservation easements and really replace structurally deefficient bridges, but we're seeing the economic pipelines and wells, and engineering firms in the region, more than doubled in size, over a two year period, bought 75 additional vehicles of the. i said shady maple is saveing $175,000 a year in energy costs. which then garden spot school
district saw which is in the same area saying we'll tap in and realize their savings. now, we'd like to see more of it, unfortunately, about half of the pennsylvania does not have access to the natural gas and given the premgs premise, you'll see entities and others who are able to tap in and be able to realize that savings, and where we expect to see it and hear from a lot of the constituents is in the area of manufacturing, especially those who are heavily reliant on energy to do that. we have companies that spend over $3 million a year in energy costs, but they are nowhere near the pipeline, so i think we'll see further opportunities coming forth, but two great things i see is you're able to get an education in pennsylvania, petroleum and gas industry that you had to go to, like, texas tech to used to be able to get. they are investing in areas,
$2.5 million grant to community college, two year program, costs for that two years is $22000. when they are coming out of that program, the starting rate is $68,000. those are the types of things you are seeing. these are good middle class jobs that not only use your head, but they also use your hands and we're seeing that grow, and that's something we hopefully continue to see grow, not only in lancaster county but throughout pennsylvania. >> thank you very much. my time expired. >> at this time, i recognize the gentleman from texas mr. green for three minutes. >> thank you, mr. chairman, i appreciate hearing from the county commissioner. my accent gives me away, but, obviously, every school in texas has energy courses from the community colleges up to not only tech texas in lubbock, but texas a&m, houston, and everywhere else. ms. cassidy welcome back to the committee. i know you're familiar with the nepa regulations and
environmental quality, and agencies specifically prohibited from segments projects known as piecemealing. the code of federal regulations state proposals or parts of proposals related to each other closely enough to be in action are evaluated. the discussion draft requires the state department to prom mull gait rules on cross border pipelines, and you heard the agencies are require to do it. ms. cassidy wouldn't the federal agency in charge of the review be charged with the review that satisfies these sceq regulations and looking at the whole project? >> my understanding of the bill is that the review only applies to the cross border segment of the pipeline project or transmission line and so it -- the federal approval only applies to that portion as well,
and there would be state by state reviews if it was passing through a state in terms of federal review it's just applying to the cross border segment. that's my understanding of the legislation. >> well, shouldn't that, you know, cross border of you, but so much of the process is done by other federal agencies, and a party to it. for example, if you have a pipeline coming from texas in eagle ford to mexico, that cross border pipeline, you know state law covers it on the property that's not federal, but it may be crossing federal lands, and so the nepa process would come into play on that, but granted, the cross border, international of course, is taxpayers, we own our part of the border, then they would do it but don't you -- you don't think the bill calls for them to look at project? it may not be one agency doing it but there are other agencies doing the process on their requirements on what they are required to do in that pipeline from whether it be eagle ford
you know, of course, into mexico, and that's what worries me because i know in my colleague from new jersey said that the process is not covered. i think it is because if it's not department of energy for example, for electricity transmission, it would be another federal agency if they had the authority in there or in some cases state agencies. so the process would be included. mr. chairman, i know i'm about out of time and about out of time for -- >> mr. green that's our view as well and would love for the staff to sit down with ms. cassidy in more detail, but it's our understanding this does not change the process. >> yeah, now i have to admit, my few seconds, i have a problem with the state department. we have a company in texas who was a canada pipeline that was dormant. they wanted to change the name because they bought it and their goal was to not only
bring, recruit oil from canada, but it was also to attach into the united states from balcan and the state department decided to review what was on the u.s. property. now, i want a federal agency looking at it but the state department shouldn't be deciding whether the -- pipeline out of balcan is good or not. granted, we're getting crude oil in trains in the houston texas because our refiners do that. it's so much safer and easier to put a pipeline in there than it is to bring 100 car trains of crude oil from canada. >> gentleman's time expired. i recognize the gentleman from virginia, mr. griffeth, for three minutes. >> thank you very much, i appreciate it. i take anyone who can answer it. are you all familiar with the regulations relating to production of electricity in
mexico by coal? no is a fine answer. if you don't know, you don't know. nobody knows? the reason i ask the question is that part of the proposal here, and one that i'm interested in has electric transmission facilities. it's not just pipelines, and one of my concerns is that we're putting coal miners out of work in appalachia that's appalachia in our area, and we are putting coal miners out of work in appalachia, but if we riallow lines to cross over from mexico using not as good a goal with not a good a process, and not a clean of plants, what gain have we made environmentally? i think this is a case where well ms. cassidy and i will not agree on much, but we might agree on that, that that ought to be a concern. do you have any thoughts on that at all in? >> that's a very important point, and testimony referred to
it as well. electrons and molecules do not have concern about arbitrary political boundaries so that's why we have a shared solution that brings the technology of the united states to bear on the issues in mexico. we have to have shared agreements. i will not try to get into a lengthy conversation in 60 seconds, but there's a real opportunity to actually lift the mexican system so that it has parody with the u.s. >> and i certainly don't mind lifting up the mexican system, but i'm reminded of the study that sthoe shows it takes ten days for the air in the desert to get to the shore of virginia. if we eliminate coal, waiting 30 to 40 years on asia just really means we're putting our people out of work, and we're not really doing that much for the overall northern hemisphere air. >> all i say is we fundamentally have to find a way to burn coal in a way that meets security interests and environmental interests, and there's a way to do that to invest resources to get it done. we're not doing that right now. >> i agree completely.
we can do more. we should do more. i look forward to working with you on clean coal technologies. i yield back. >> there are no more questions so i thank all of you, again, for your patience, and we look forward to maintaining contact with you and continueing to work with you as we try to bring the legislation to the committee. i'm also asking unanimous consent that a statement from the canadian electricity association be submitted for the record and with that, no objection, so ordered. is this it? okay. we'll keep the record open for ten days for any additional material that needs to be submitted. once again that'll conclude today's hearing. thank you, all, for your interest and thank you for coming all the way from germany.
on the next washington journal, several amendments dealing with local pot laws with representative blumenauer. representative dome mass massie discusses efforts to change nsa surveillance after the senate approved the usa freedom act sendsing it to president obama for his signature. as part of the spotlight on magazine series, new republican
contributor lauren sandler answers questions about the cover story on paid family leave. washington journal is live every morning at 7:00 eastern on c-span and you can contribute to the discussion on facebook and on twitter @cspanwj. >> wednesday, lincoln chafee announces his presidential campaign at politics and foreign relations in arlington virginia. the former republican turned independent is running as a democrat. see it live at 5:00 eastern here on c-span3. >> this week the c-span cities tour partnered with time warner cable to learn about the history and literary life of lincoln, nebraska. >> one of the most important american writers of the 20th century, given almost every
literary award possible in her lifetime before she died. other than the nobel prize and known for masterpieces like the professor's house, death comes for the arch bishop, the lost lady, and many others. in 1943, she made a will with a few restrictions in it. one was she did not want her letters to be published or quoted in whole or in part. left behind at least 3,000 letters that e we know about now. fortunate the biggest collections are here in nebraska. furthermore, in the will, there was another important thing. she left it to the sole and uncontrolled discretion of her executives and trustee to decide whether or not to enforce her preference, and they believe as educational organizations that she belongs to the shared heritage, and we ought to know more about her. >> an important historical figure in nebraska's history was
solomon d. busher. >> he was a pioneering photographer in western nebraska. he took photos from about 1887 until the early 1890s of homesteaders and sod houses and was ail to tell the story of the important development in american history. okay, well i'm going to show you my favorite images of the solomon butcher collection. it's the photograph of the sisters. it is four sisters who each took a homestead claim in custer county. this is women homesteaders. it was the first time that women could own land on their own. it did not belong to their husbands. it did not belong to their fathers. single women could own their own land. that was a really big deal with the homestead act.
so each sister, each of the sisters took a homestead near their father's ranch. they each built a small house on the homestead part of the homestead act, and they would take turns staying in each other's house and working each other's farm. so the sisters really pulled together and made it in nebraska. >> watch all of our events from lincoln saturday evening at 6:00 on c-span2'sbook tv and sunday afternoon at k on american history tv on c-span3. monday, the supreme court threw out the conviction of anthony elonis a pennsylvania man sentenced to 44 months in prison for making threats against his wife, first, and others on his facebook page. in a 7-2 decision, the court ruled that it is not enough to
show the comments make a reasonable person feel threatened, but that his mental state indicated and intent to threaten. next, the december 2014 oral argument. this is an hour. >> your argtsument next this morning. mr. elwood? >> may it please the court, this restricts speech on a few well define classes of communication clearly supported by history and tradition including what this court called true threats. the government failed -- >> i'm not sure that the court did either the law or the english language much of a good service when said true threat. that means so many things. it could mean that you really intend to carry it out, a, you
really intend to intimidate the person, or that no one could possibly believe it. i don't -- >> that's true. >> i -- we can't fault you for citing the supreme court, but it's the most unhelpful phrase. >> it also does not help it was announced in a procure cure yam decision. threatening speech was not punishable by common law, and until the late 20th century, american threat statutes required or interpreted to require proof of subjective intent, and -- >> that was an assault common law, wasn't it? if you threatened someone with violent and do not apply violence, that's an assault, isn't it? >> i think assault is different because that can be an attempted battery, but it's my understanding there is law to the question that assault, when
involved placing someone in fear requires intent. >> how does one prove what's in somebody else's mind that this case the standard was what a reasonable person think that the words put someone in fear? reasonable people can make that judgment. but how would the government prove whether this threat in the mind of the threatener was genuine genuine? >> two ways, and generally speaking, as we indicated in our brief, in order to prove up these threats which are increasingly made on line using a cell phone or computer, you will have to search the computer and cell phone to show it was used to make the statements. you will also find on there a
wealth of information as the court indicated in riley. people conduct lives electronic. >> yeah, there's a lot of information on the cell phone that the guy's really angry at his ex-wife, and, you know, would like to see her suffer, and he's going to put it online, and then you're going to say, well, that was just therapeutic as you said in the brief. >> it was therapeutic, yes, of course, it shows he was going to do something dangerous. it's a good thing he had an outlet of the internet so he didn't have to do it. >> but i think -- i think the point is that there is a lot of nfrgs to find. for example, that he visited the web page where she confided in someone else she was in fear. there was, you know you can find -- you can prove -- >> how does the -- i thought the point was the fact she's in fear does not tell you enough about what the defendant wants. >> if you see he visited her website at a time she said she
was afraid of this guy or of what he is saying, prove up that -- >> all he has to do is say as i understand your brief, it's therapeutic, good thing i could do this, or it's art. >> if he was on notice that she is in fear, that is all we're asking for, that if he knows she's in fear, he does not have a right to continue on. that states intent to cause fear. >> but you -- >> could you tell me where -- coming a little bit off of justice ginsberg's k9
>> as the government put it in this case in the closing argument, under the instruction given, it does not matter what the defendant thinks. what matters is whether a reasonable person would foresee the listener would be placed in fear, and so -- >> but i mean, how is that different from what you intend? if you know, if a reasonable person is going to read this way, aren't they going to assume that's what the defendant intended? >> that is a standard. it holes him to a reasonable person standard regardless of whether he was aware of that, that holds him to what a reasonable person would have
known. >> along the same lines and what the chief justice asked you. i was surprised by the answer. i'm trying to figure out what contactually the level of intent you want is so one, the very very highest level might be i affirmatively want to place this person in fear. that's why i'm doing what i'm doing. all right. there is a step down from that which is i don't want to do that. i'm just fulfilling my artistic fantasies. whatever you want to call it, but i know i am going to place this person in fear. which intent do you want? >> the second. >> the second. >> that if you know you place them in fear by what you're doing, that is enough to satisfy our version of -- >> and how about just take it a step down more, but not get to the government's. how about if you don't know to a certainty, but you know that there's a substantial probability that you'll place that person in fear. which is what i take it we usually mean when we talk about
recklessness. >> i think that we would say recklessness is not enough. the court said that recklessness and negligence is not enough for antitrust liability so the same applies here. traditionally, courts applied the supreme court and said that willful blindness satisfies knowledge, but the willful tests spelled out beyond recklessness and took an extra step to distinguish it. >> what would be wrong with the recklessness standard? why is that too low? it seems that recklessness standard has a kind of buffer zone around it, you know, it gets you up one level from what the government wants so what -- who is the person we should be worry will be convicted under recklessness standard? >> many of the speakers online and those prosecutored now are teenagers who are essentially shooting up their mouths or
making ill-timed sarcastic comments that wind up getting them thrown in jail. for example, there is pending now a case involving a couple of texas teenagers who were in a video game chat room. one called the other one crazy, apparently for something cede over a video game, and the other one responded yeah i'm crazy, i'm going to shoot up a kindergarten and eat one of their still beating hearts. no one thought that as sarcasm. a woman in canada was watching reported him to the authorities, and he was held for four and a half months before he was bonded out. he's still subject to trial. texas has intent requirement. there's a chance he'll be acquit acquitted acquitted, but talking about what the reasonable person views that as, i would not want to bet a felony conviction -- >> it's not just a reasonable person at least as i understand the government's submission, but it's a reasonable person familiar with the context of the statement.
right? you don't take the interpret and abstract and say they want to do something horrible. you're familiar with the context and fact this was a couple of did teenagers in a chat room playing a game right? >> that is true but the thing is, everyone has a different view of what context matters, and i don't know that you can say in advance or a priority that that is what is going to matter, al they say is look, i was put in fear, and one of the things that matters in the reasonable person prosecutions is how did they respond? fact of the matter is they investigated, and informed the school, and that is -- that's a good strapping quality to the reasonable person test because if you reacted to it and presumably law enforcement reacts in any case that's prosecuted, you can be -- they can use that as a sign that, look, we took this seriously, a reasonable person took this seriously. >> i thought on the basis of the briefs that there are two separate questions. one has to do with the state of
mind, and the other doesn't. the one that doesn't has to do with what the person does what he does, has to do this or not guilt, is he has to communicate a true threat. what is a true threat? >> well -- >> a true threat, you saw the definition, the instruction given similar to ones well embodied in the law, what you have to do is communicate a true threat and a true threat is a threat that a reasonable person would understand to convey a serious expression of an intention to inflict bodily injury or take the life you know, the life of an individual. now, there's a second question which i find more difficult. that has nothing to do with what you do but with the state of mind. that is what i want to know your view about. i saw nothing in the government's brief that a person could be convicted through
negligence. rather what they say, and it seems this is a hornbook statement of criminal law, that you have to know that you are doing those things that are the elements of the crime. so you have to know you are transmitting in commerce, a, true threat. as i just defined it. and if you don't know that, you're out. you're home free. now, that i would say is model penal code, that is brown commission, that is every sort of statement of criminal law that i manage i don't know many that contradict that and so why isn't that the end in this case? >> because the way you're explaining it is different in the way the government explains it because you seem to be suggesting that he knows that a reasonable person would be placing fear -- >> has to know that, and i will ask the government the same question i have in their brief things where i think what they are saying is the way i said it, but they are say perhaps something else, but that's up to
them. >> me understanding of the government's position -- >> now forget that position for the moment. what do you think of the position i just talk about? >> the way i understand your position is -- >> if you go into a bank you have to know, you know certain elements to be bank robbery you have to know you have a threat you have to know et cetera. now, here, one of the elements of the crime is to communicate a true threat so you have to know. if i indicate -- >> well, the thing is, though, if i -- i wouldn't -- >> i wouldn't have asked it if i didn't want your view. >> i'm trying hard to give it to you. [ laughter ] if the government's view is he has to know -- he had to know that a reasonable person would interpret that as a threat, i would think that would be a big improvement. i would not view that as a bad thing at all. >> well, but, you would not go along with that.
>> i mean, i would prefer it's a yes or no -- >> well, that, yeah, but, that covers the situation in which somebody transmits an interstate commerce a warning that al qaeda is going to assassinate a certain person. that's cover by this statute, isn't it? any communication containing any threat to kidnap any person or any threat to injury the person of another, this contains a threat. the threat of al qaeda right? >> i'm not sure that is viewed as a threat because it's not, you know, stating one's intention. you're stating your intention to cause physical harm, so i think that that's -- >> your back to what the intention of what the sender is. that statement eliminates the intention of the sender doesn't it? >> because i think again, we're just talking a threat is only,
you know, the question is whether it's your statement of intent to cause harm versus you're warning somebody of somebody else's intent to cause harm. >> yeah, well, exactly. that's a big difference, and i have thought that your position tooking the account of that difference, that you had to intend to place somebody in fear. >> that is right. >> once you eliminate that you can step justice briar's position. >> among many things wrong with that k i mean, i'm not the only one who says this is a negligent standard just as marshall said it and that is because you're basing not on what he knew, but on what a reasonable person would have known under the circumstances. captions copyright national cable satellite corp. 2008 captioning performed by vitac