John Dernbach from Widener University Law School started this session with the Robinson Township case and the potential meaning of Constitutional Public Trust. As many environmental lawyers in the US might reckon, Robinson Township is a groundbreaking case which strikes down a fracking statute under the Pennsylvania constitution. However, this is still potential, because there are many meanings and implication which might be taken from the case.
Prof. Dernbach broke down Penn's environmental amendment in Article I, Section 27, into two big part: (1) right to environment; and (2) public trust language. However, like other environmental rights constitutional provision, it gets buried right away, with the former case saying it is not self-executing. It was followed with other of the litigation which did a remarkable judicial activism, giving three balancing test to the right, the "protect and conserve" test. Next, entered the Robinson Township, challenging Marcellus legislation, and decided using a public trust framing of its environmental rights amendment!
On his words, what the court saying was, "We know that industry needs predictability, but also the people who's living under the place vulnerable to this oil and gas exploration - they need predictability, too! Their interest and expectation must be protected!" -- A totally quotable words!
Pre-Robinson Township, the PTD in Article I, Section 27 might be: (1) Confirm and extend governmental authority; (2) Guide statutory interpretation; (3) Provide constitutional authority for laws which legislation/executive enacted against. And, the potential effect of Robinson Township will bring these three functions further: (1) Strengthens each of these; (2) Imposes duties on government, not just confirming and extending governmental authority. And hey, it might happen in Indonesia, too, if we can do some test case!
After him, Richard Frank took the floor, pointing to the groundwater pumping that affect navigable waters and the PTD implication to that. He begun with the Waiahole Ditch case from Hawaii and some other cases, also some states' legislation which give trust language in protecting groundwater. His primary focus is the Scott River litigation in NW California, regarding the Klamath & Scott Rivers, which getting dried because of more and more wells being drilled around the river for the agricultural purposes. The case was filed in 2010 in the Sacramento County Superior Court, the main argument relying on Mono Lake's decision, that the government have an affirmative duty to do something about the water, and the agencies have disclaimed authority/obligation to do so, and asking the court to issue order requiring management consistent with PTD. The litigation is still ongoing, but a positive development is signalling.
And here comes the man, Michael Blumm, my PTD Professor in Lewis & Clark, and I enjoyed the way he used his first 7 minutes to give entertaining rebuttal to the previous panels! If there's one skill I adore from lawyers, is their ability to use the rightest words to give mean rebuttal. And finally he started, bring a light to the Lake Oswego case, a private lake just three miles from the law school. Relying on two preposition: (1) the water is navigable; and (2) there should be public right to access based on the Statehood Act right. Again, the case is still on going, but if they lose, they'll just get to the Supreme Court. And then things get mushy, I can't remember how, but then he start to talk about the Federal PTD, which I think actually just an impromptu "lecture" to the previous panelists. That was fun, old man!
The next speaker, Mary Christina Wood, is the co-writer of the PTD textbook that Blumm wrote, and she's one of "the guy" in the US PTD world. She started with a really romantic method, brought all the audience to imagine what climate and PTD might look like at the end of the century... and think about how our childrens' life right then. She really get into the point when she mentioned that we lawyers tend to be trapped within the statutory analysis, discussing what might fit to be brought to court and which fits for the other branches, and forgetting that the nature is actually already working so much faster than we anticipated. And then she got back to climate change, comparing how the regulations have been the micro approach, while the trust litigation are macro approach, basically saying "government need to have a plan"! She also mention about the "Our Children's Trust" where children brought petition to the government, saying that the agencies must have a plan. One of the case that got through the court was brought in Eugene, OR, and you can google about it.
That's kind of the end of this Symposium for me. Totally cool, but definitely cooler if we can try it back home ;)
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