May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates
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Quote of the Day - The only things that are certain are death and taxes, and that I can buy Viagra fom my inbox.
Can Spam Act Reduced Spam Merely 1%Have you bought Viagra from your inbox? How about an online degree? Maybe started working from home? (The lack of links in this first paragraph is intentional.)The Can Spam Act passed last year has done virtually nothing to stop unwanted emails. A study just completed says the Act resulted in a mere 1% drop in spam, barely a dent in your email inbox. Right now, estimates have us dealing with junk email at least an hour a day. How much time does it take you? Our laws are not tough enough to stop the barrage of unwanted emails. Getting past spam filters is almost child's play. What to do? Try capitalism. Don't buy the stuff or click on the links. Eventually, it will go away. Not satisfied with that answer? Talk to your legislator. Tell them to stop it by passing laws that can be enforced with stiff penalties. In the meantime, I just click "delete." Now if I could only figure out a way to do that with my tax bill. Mr. Spock Now Writes for the Ninth CircuitNow that the Covington v. Jefferson County decision has had time to percolate, I've noticed some interesting aspects to the opinion.Michael and Karla Covington live across from a landfill in Jefferson County, Idaho. Now that you've got that lovely sight (and smell) in your mind, let's go on. The Covingtons sued the County over the underground contamination and the airborne contamination. The dump was set ablaze at least twice, and was was replete with biological and hazardous waste, ranging from rotting cow carcasses to car batteries. I can't even begin to imagine. The Covingtons also presented evidence that household appliances, including refrigerators and dishwashers, were improperly dumped at the site and leaking chlorofluorocarbons into the atmosphere. One question that comes immediately to mind is that if you have enough money to bring a lawsuit, why don't you move first? In any event, onward and upward, as they say. The Covingtons lost their Clean Air Act claims in the lower court, but were allowed to pursue their underground contamination claims. Not satisfied with that decision, they appealed. The Ninth Circuit heard the appeal, and decided that the Covingtons were right. The appellate judges reversed the lower court's finding that the Covingtons didn't have standing to bring the CAA claims. So, now the Covingtons get to go back to the lower court and try their case. We'll see what happens in about a year. Apart from the facts and ruling of the case, though, that's not the whole story. The most important aspect of the Ninth Circuit's decision was what was not said in the main opinion. In a bit of a rarity, Judge Ronald M. Gould (there's no "Justice" in the Ninth Circuit), who wrote the main opinion, also wrote the concurring opinion. Given that foreshadowing, you're probably ready for what comes next. The twist to this whole case comes in the concurring opinion, not the main opinion. The separate, concurring opinion, which does not have the force of a holding in the case, takes a few steps beyond the actual standing issue. He set the stage for expanding the law on who can bring suits for widespread damage, such as ozone depletion. Judge Gould opined that "A theory that 'injury to all is injury to none' seems wrong in theory for it would deny standing to every citizen such that no matter how badly the whole may be hurt, none of the parts could ever have standing to go to court to cure a harmful violation." What is he saying? Precedent generally holds that generalized, global maladies with no unique, concrete or particularized personal injury cannot alone constitute sufficient standing for an individual to bring suit. Gould's concurrence goes beyond the facts of the opinion (something he acknowledges), but he set forth his thoughts anyway. In sum, Judge Gould argues that any one individual has the right to bring a lawsuit for injuries arising from ozone depletion, because the harm to all is harm to one. Judge Gould probably learned his lesson from Mr. Spock. You know - the part where Spock's usual lack of understanding humans shows through in his comment that the "the needs of the many outweigh the needs of the few... or the one," from The Wrath of Kahn. Fajitagate Turns into $33 Million LawsuitWe are a little flaky out here on the left coast. Sometimes, more than you would expect, though. Like Fajitagate in San Francisco.Yep. You heard it right. Fa-hee-ta-gate: A late night brawl between three cops and two regular people over a bag of fajita chips that allegedly gets covered up by the big brass in the department. Now, though, it's turned into a $33 million lawsuit. Here's the ACLU's take. It's all out of hand, with big charges over those big chips flying back and forth. We call them sandbox lawsuits. Almost as much fun as celebrity boobs. Red Wine Like Toxic Contamination?You spill red wine on your white carpet. What do you do? You get a cleaner out, and go to work. At some point, though, no more wine will come out of the carpet, no matter how hard you scrub and how much cleaner you use.But you have to get the wine out before someone sees it. What do you do now? Options range from using a stronger cleaner to just cutting the stain out and replacing the carpet. Same thing for toxic contamination in the ground. There's a theory called the Dual Equilibrium Desorption Model, which was derived from a unique premise: only a fraction of contaminants in soil desorb, while the remaining fraction remains tightly bound. By assuming two different desorption terms, the DED model is the only mathematical model that realistically quantifies the release of organic compounds from soils. The DED model was developed from more than 10 years of research at Rice University. It requires only simple and readily available parameters and has been proven to be much more accurate in quantifying desorption, according to Steve Figgins at Brown & Caldwell. Currently adopted desorption models significantly overestimate desorption of organic compounds such as BTEX and chlorinated solvents. This new method allows for better planning and decision making to avoid more extensive/costly remediation. Here's the chart that explains it graphically. Now you can know when to stop trying to remove toxic contaminants from the soil, and switch cleanup options. Want a pinot noir with that white carpet? How To Avoid Liability for Your Neighbor's ToxicsYou're a property owner, and you have nothing to do with hazardous materials. You don't use, make or transport them. How can you be liable if someone else caused the contamination?Under CERCLA, it's easy. You didn't do anything, but you're still liable because you own the newly contaminated property. Make sense? Not to a lot of people, but that's essentially the law. It's more of a public policy thing - Congress wanted to make as many people as possible liable for cleanup of toxic contamination so there would be more money available. But, rationality is beginning to set in. The USEPA has issued new guidance (see entry on 1/22/04) that tells landowners how to avoid liability for contamination caused by your neighbors' actions. It's actually pretty simple: "demonstrate that you did not cause, contribute, or consent to the release of hazardous substances; you are not affiliated with a liable party in any way (familial, financial, contractual); and you have taken reasonable steps to stop any continuing release, and prevent or limit human and environmental exposure to the hazardous substances." Don't you feel better now? It's actually a bit more complicated than that, but you get the idea. How to avoid liability in three easy steps. Sounds like a great title for a self-help book. Hmmmm. Mad Cows Or Mad Scientists in the USEPA?Here's a lovely thought: The USEPA denied a petition to prevent the use of sewer sludge as fertilizer. In lawyerspeak, that means it's OK to put sewer sludge on family farms in Georgia.One problem, though. Georgia state agencies found the sludge was so corrosive that it dissolved fences and emitted toxic fumes that could sicken cows. Mmm, Mmm, Good. Yuck! It gets better. Turns out that the USEPA terminated a 32-year employee for blowing the whistle on one small fact: when it allowed the sludge to be used on the basis that the heavy metals in it were within tolerance limits, it allegedly knew the data was "completely unreliable, possibly even fraudulent," according to Georgia officials and the whistleblower. Whistleblower David Lewis, Ph.D. testified before a House subcommittee last week that nearly 3 million tons of sludge was allowed to be dumped on Georgia farms as a result of the USEPA's ruling. Here's Dr. Lewis' thoughts. Even the National Whistleblower Center wants your donations for Dr. Lewis. At least two senators support Lewis. Lewis, though, got a settlement from the USEPA in 1988. Predictably, not all are happy with Dr. Lewis. Here's a look at both sides of the arguments. Don't trust everything you read at first until you check it all out, including the Daubert brief filed against Dr. Lewis' theories. MTBE Liability Protection Likely DroppedAs a follow-up to an earlier MTBE article last November, it looks like the legal liability protection for MTBE will become a thing of the past.Findlaw reports that US Senator Pete Domenici, the chairman of the U.S. Senate Energy Committee, will introduce a bill that eliminates the additive's exclusion from liability. Looks like some lobbyist dropped the ball, but good for the rest of us - cleaner water all around. Architectural Acupuncture or Building Codes?Earthquake codes or Feng Shui? California may soon have both - well, as you can probably guess if you already don't know, we've got some pretty strict earthquake codes.But soon, we may have Feng Shui codes, too. All I can say is that it came out of San Francisco, not Southern California. State Assemblyman Leland Yee, Ph.D. proposed that we add Feng Shui to our state's building codes. Here's the proposed legislation. But, not everyone's happy about it. On the other hand, the Feng Shui practitioners at Yee's office may be, although they don't look it. The robed priests aren't smiling. I have no worries, though. My office is already in compliance. The dragon sits on the left side of my desk. Temecula Assemblyman Ray Haynes commented that, "this [proposal] makes California look like a bunch of flakes to the rest of the nation." Special K anyone?
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