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 ;)
Friday, April 10, 2015
Public Trust Symposium, Panel 3: Perspectives from Governance
So this is the 3rd Panel of the Public Trust Symposium in Lewis & Clark Law School on this sunny Friday, April 10, 2015. It was really interesting to see the perspective of government in responding to Public Trust Doctrine (PTD). I skipped the first speaker, a really interesting lady who practiced law for 23 years before work for the Department of Interior with a policy hat, Janice Schneider, Assistant Secretary, Lands and Minerals Management., U.S. DOI, nominated by Obama and approved by Congress.
So I started with Geoff McQuilkin, Executive Director of Mono Lake Committee, who shared his experience with implementing the famous PTD case, Mono Lake, which declared as victory by environmentalists some 20 years ago. A photo he shown to us told us how standing at the same edge of Mono Lake can look so differently in some two years in different timing - drought time and normal time. It's pretty heartbreaking to see the hard work to raise the Mono Lake water to certain level finally ends up with the nature's power. "What we're still doing to protect this public resource to be ecologically sound. But if we're heading towards getting the water level to its 'normal' level as set out in the case, we might be heading to the wrong direction,"
Richard Wisman, the Director of Oregon Governor's Natural Resources Office, took the floor afterwards, "You might remember that Montana has the right to clean and healthy environment. But you might not remember that in Oregon, in 1970s, people enacted Scenic Waterways Act," he started, talking about the PTD implementation in Oregon. However, the real challenge right now is real: the water reservoir level in Wilammete basin goes down to 1/3 of its normal level, and its beyond direct human action - it's nature. He pointed to California's Preposition 1: the $7.5 bond dedicated for water storage, water recycling, and many other holistic approach to deal with the drought that threat them. See what Oregon has been doing is fascinating, although environmentalists will probably demand more. Coordination with tribes, protection and restoration of fisheries, groundwater apportionment water right scheme (which is pretty unique water right system in the west as oppose to prior appropriation), CFS through in-stream leasing, and the public investment, all is ongoing. He even pointed that people power to demand is needed, full engagement with executive and judicial system.
All of them comes with the same message: the challenge of climate change is a huge chunk of additional homework. We're talking about drought in the west right now, which might be problematic if we want to see PTD in its traditional sense. We also take into account changing condition of nature, which completely different with 20 years ago.
Erin Ryan raise a really interesting question about how these executive people worry about the separation of power posed by the PTD. Wisman points to the possible backoff caused by overreaching judgment by the judiciary, which might frustrates both parties in the end with its unintended political consequences. McQuillin made a point about the balancing of special interests, where there's always be people who are not satisfied and then the court step in, put a hammer on what's actually been satisfactory for some groups. He pointed that PTD really have its role working when government fails to take certain actions. Scheider points that the agencies' objective to work in a collaborative action to make sure they're not get sued, and nodding to the points raised by her co-panels. She also points about hoping people realize how open the executive branch is to have conversation from the stakeholders -- the more they hear from people, the better decision they can make. Additional issue raised by Wisman on the climate change issue: the court will not make a sound decision on the climate, especially related to the complicated science involved in that, and only by locking people together in the room a sound solution can be reached.
So I started with Geoff McQuilkin, Executive Director of Mono Lake Committee, who shared his experience with implementing the famous PTD case, Mono Lake, which declared as victory by environmentalists some 20 years ago. A photo he shown to us told us how standing at the same edge of Mono Lake can look so differently in some two years in different timing - drought time and normal time. It's pretty heartbreaking to see the hard work to raise the Mono Lake water to certain level finally ends up with the nature's power. "What we're still doing to protect this public resource to be ecologically sound. But if we're heading towards getting the water level to its 'normal' level as set out in the case, we might be heading to the wrong direction,"
Richard Wisman, the Director of Oregon Governor's Natural Resources Office, took the floor afterwards, "You might remember that Montana has the right to clean and healthy environment. But you might not remember that in Oregon, in 1970s, people enacted Scenic Waterways Act," he started, talking about the PTD implementation in Oregon. However, the real challenge right now is real: the water reservoir level in Wilammete basin goes down to 1/3 of its normal level, and its beyond direct human action - it's nature. He pointed to California's Preposition 1: the $7.5 bond dedicated for water storage, water recycling, and many other holistic approach to deal with the drought that threat them. See what Oregon has been doing is fascinating, although environmentalists will probably demand more. Coordination with tribes, protection and restoration of fisheries, groundwater apportionment water right scheme (which is pretty unique water right system in the west as oppose to prior appropriation), CFS through in-stream leasing, and the public investment, all is ongoing. He even pointed that people power to demand is needed, full engagement with executive and judicial system.
All of them comes with the same message: the challenge of climate change is a huge chunk of additional homework. We're talking about drought in the west right now, which might be problematic if we want to see PTD in its traditional sense. We also take into account changing condition of nature, which completely different with 20 years ago.
Erin Ryan raise a really interesting question about how these executive people worry about the separation of power posed by the PTD. Wisman points to the possible backoff caused by overreaching judgment by the judiciary, which might frustrates both parties in the end with its unintended political consequences. McQuillin made a point about the balancing of special interests, where there's always be people who are not satisfied and then the court step in, put a hammer on what's actually been satisfactory for some groups. He pointed that PTD really have its role working when government fails to take certain actions. Scheider points that the agencies' objective to work in a collaborative action to make sure they're not get sued, and nodding to the points raised by her co-panels. She also points about hoping people realize how open the executive branch is to have conversation from the stakeholders -- the more they hear from people, the better decision they can make. Additional issue raised by Wisman on the climate change issue: the court will not make a sound decision on the climate, especially related to the complicated science involved in that, and only by locking people together in the room a sound solution can be reached.
Tuesday, April 7, 2015
LAW 101: Loving Your LAW Jobs
I love cases.
I can't say enough how I LOVE observing people's story in cases: the more heartbreaking it is, the more interesting it is. Like one of the complicated case about defining "wetlands" in Rapanos v. United States, decided in a rare 4-1-4 split decision by the US Supreme Court. The case, and the judges opinion, is just about "water of the US" and CWA jurisdiction -- and I was not that interested to the case until I found out the story behind the case,
The way law dramatize people's stories is simply fascinating.
I can't say enough how I LOVE observing people's story in cases: the more heartbreaking it is, the more interesting it is. Like one of the complicated case about defining "wetlands" in Rapanos v. United States, decided in a rare 4-1-4 split decision by the US Supreme Court. The case, and the judges opinion, is just about "water of the US" and CWA jurisdiction -- and I was not that interested to the case until I found out the story behind the case,
"After seventeen years of protracted civil and criminal litigation and a denial of certiorari in the criminal trial, the Supreme Court granted certiorari to hear Rapanos' civil case." (68 La. L. Rev. 983)There you go. A single definition of a single WORD has ruined someone's life for seventeen years, and a small (or huge, depends on your perspective in seeing that) shift on interpreting that word can affect everything from a huge sum of penalty to criminal conviction.
The way law dramatize people's stories is simply fascinating.
Tuesday, March 31, 2015
In the name of Cultural Understanding
There are some classes that can make you emotionally wasted. Like, really, it makes you eat raw vegetables like monster or typing your stubborn subjectivity into blog post while feeling so mixed up you badly need somebody to hug or something to punch.
Last year the trophy went to Animal Law. And as much as I hate it, as much as I thought about it -- wrote about it. It became a complicated love-hate relationship between me and the subject. Or the cases. Or... whatever. And to Environmental Justice, as it triggered more questions in my troubling mind and brought so much ethical contradictions to my early twenty head. I was fucked, emotionally.
Now, International Environmental Law fucked me up. That developed-developing countries distinction, and all the framing and sharp clash of values, sometimes made me lose my lawyering objectivity to be neutral, heartless, in my legal argument. But, can it be really, really neutral?
Why is it hypocritical for environmentalists from a country without CAFO problem to choose to eat meat, BUT it is NOT hypocritical to enact a statute as strong as CERCLA and RCRA to protect public health while exporting the waste to other countries like India and let people inhale asbestos everyday without any safe equipment?
I really envy Prof. Johnston everytime he said "The beauty of CERCLA..." or Prof. Ostar when he promoted transit justice for people in Portland. Maybe I've got too bitter that Indonesia might not ever be there, because our own inability. Or, I used my heart too much over my head. Or, all I need is my debating mate giving me more and more rebuttal until it kills my emotion. Maybe.
But that's why I love this subject anyway... because it hurts.
Last year the trophy went to Animal Law. And as much as I hate it, as much as I thought about it -- wrote about it. It became a complicated love-hate relationship between me and the subject. Or the cases. Or... whatever. And to Environmental Justice, as it triggered more questions in my troubling mind and brought so much ethical contradictions to my early twenty head. I was fucked, emotionally.
Now, International Environmental Law fucked me up. That developed-developing countries distinction, and all the framing and sharp clash of values, sometimes made me lose my lawyering objectivity to be neutral, heartless, in my legal argument. But, can it be really, really neutral?
Why is it hypocritical for environmentalists from a country without CAFO problem to choose to eat meat, BUT it is NOT hypocritical to enact a statute as strong as CERCLA and RCRA to protect public health while exporting the waste to other countries like India and let people inhale asbestos everyday without any safe equipment?
I really envy Prof. Johnston everytime he said "The beauty of CERCLA..." or Prof. Ostar when he promoted transit justice for people in Portland. Maybe I've got too bitter that Indonesia might not ever be there, because our own inability. Or, I used my heart too much over my head. Or, all I need is my debating mate giving me more and more rebuttal until it kills my emotion. Maybe.
But that's why I love this subject anyway... because it hurts.
Sunday, March 15, 2015
Sweetness Level: Godzilla!!
Again, about American food. If you start hating me, fine, shut this window down. I know I've been talking too much about food when I'm here.
When I can talk for hours about Portland's great local coffee and cool microbreweries, I can't resist to raise a concern about some intolerably unhealthy sweetness level in some of the beverages. Everytime I forgot to say "LESS SUGAR," the rest of my day will be a bad turbulence in my tummy - yes, that kind of sweetness that you think gonna give you instant diabetes.
First, let's examine this jar of coffee. I swear it's huge! At least you can drink 5 *NORMAL* cup of coffee and it's still sweet enough if you add ice as much as 20% of the volume you have in your cup. And where is it come from?
A grande Starbucks Java Chips Frappucino. More precisely, 3/4 of the grande frappe.
So in a beautiful grey day of Portland, I ordered my coffee, chatted with the server, and made the most fatal mistake of that day: forgetting to say "LESS SUGAR" for my order. Voila, what I got is a *NORMAL* sweetness level according to that server (or maybe any other server in particular places in particular country). So what happened next was I almost thrown up, and after couple of sips I gave up drinking it and bought a cup of regular Stumptown instead. But... I brought my frappe home.
And to satisfy my curiosity about my normal sweetness level, I made another coffee and added it to the grande frappe. It was 5 spoons of coffee with 16 ounces (yes, a full medium cup) of water. And I mix them. The result: it's still too sweet. But it's tolerable enough because I can add ice blocks as I drink that later. So, moral of the story: Even though I have added amount of water DOUBLE the original volume, American Starbucks is still too sweet (for me).
And today, I made the same mistake again. But, this time, with bottled juice. (How am I supposed to say "less sugar" to something bottled??). Anyway, this is a really healthy juice: 4 fruits blend, no GMO, not from concentrate, gluten free. So it's supposed to be awesome!!
But again, I got an instant "ding" in my head as I started sipping. Disaster!
As I flipped the bottle and see the sugar level, and it's well explained why the sweetness level is crazy: this 450ml juice contains 44 grams of sugar. In other words: 11 teaspoons*) of granulated white sugar!! While, according to AHA (American Heart Association), the maximum intake of sugar for woman is only 25 grams per day, and for man 37.5 grams per day.
Anyway, just a random statistic based on this page:
"According to data from the U.S. in 2008, people are consuming over 60 pounds (28 kg) of added sugar per year and this does not include fruit juices (1). In 2008 the average intake was 76.7 grams per day, which equals 19 teaspoons or 306 calories. According to this study, sugar consumption went down by 23% between the years 2000 and 2008, mainly because people drank less sugar-sweetened beverages"
Meanwhile, a *not so* recent opinion in Jakarta Post raised a concern about the opposite trend growing in Indonesia: more sugar! You can see the opinion here, written by the vulnerability assessment officer for the UN World Food Program (WFP) in Indonesia and East Timor in 1998-2002.
So, think your own sweetness level, and have a good day, sugar!
*) one teaspoon of white granulated sugar equals to 4 grams of sugar
When I can talk for hours about Portland's great local coffee and cool microbreweries, I can't resist to raise a concern about some intolerably unhealthy sweetness level in some of the beverages. Everytime I forgot to say "LESS SUGAR," the rest of my day will be a bad turbulence in my tummy - yes, that kind of sweetness that you think gonna give you instant diabetes.
First, let's examine this jar of coffee. I swear it's huge! At least you can drink 5 *NORMAL* cup of coffee and it's still sweet enough if you add ice as much as 20% of the volume you have in your cup. And where is it come from?
A grande Starbucks Java Chips Frappucino. More precisely, 3/4 of the grande frappe.
So in a beautiful grey day of Portland, I ordered my coffee, chatted with the server, and made the most fatal mistake of that day: forgetting to say "LESS SUGAR" for my order. Voila, what I got is a *NORMAL* sweetness level according to that server (or maybe any other server in particular places in particular country). So what happened next was I almost thrown up, and after couple of sips I gave up drinking it and bought a cup of regular Stumptown instead. But... I brought my frappe home.
And to satisfy my curiosity about my normal sweetness level, I made another coffee and added it to the grande frappe. It was 5 spoons of coffee with 16 ounces (yes, a full medium cup) of water. And I mix them. The result: it's still too sweet. But it's tolerable enough because I can add ice blocks as I drink that later. So, moral of the story: Even though I have added amount of water DOUBLE the original volume, American Starbucks is still too sweet (for me).
And today, I made the same mistake again. But, this time, with bottled juice. (How am I supposed to say "less sugar" to something bottled??). Anyway, this is a really healthy juice: 4 fruits blend, no GMO, not from concentrate, gluten free. So it's supposed to be awesome!!
But again, I got an instant "ding" in my head as I started sipping. Disaster!
As I flipped the bottle and see the sugar level, and it's well explained why the sweetness level is crazy: this 450ml juice contains 44 grams of sugar. In other words: 11 teaspoons*) of granulated white sugar!! While, according to AHA (American Heart Association), the maximum intake of sugar for woman is only 25 grams per day, and for man 37.5 grams per day.
Anyway, just a random statistic based on this page:
"According to data from the U.S. in 2008, people are consuming over 60 pounds (28 kg) of added sugar per year and this does not include fruit juices (1). In 2008 the average intake was 76.7 grams per day, which equals 19 teaspoons or 306 calories. According to this study, sugar consumption went down by 23% between the years 2000 and 2008, mainly because people drank less sugar-sweetened beverages"
Meanwhile, a *not so* recent opinion in Jakarta Post raised a concern about the opposite trend growing in Indonesia: more sugar! You can see the opinion here, written by the vulnerability assessment officer for the UN World Food Program (WFP) in Indonesia and East Timor in 1998-2002.
So, think your own sweetness level, and have a good day, sugar!
*) one teaspoon of white granulated sugar equals to 4 grams of sugar
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