May It Please The Court
Quote of the Day - It usually takes more than three weeks to prepare a good impromptu speech.
Do We Still Need The EPA? What Will The Future Bring? How About Social Capital?
We've moved from Love Canal where the government had to force cleanup of environmental contamination to commonly understood requirements for current cleanups, and even to Voluntary Cleanups, which were restored to economic viability by the Supreme Court within just the last month after it (I think mistakenly) decimated them three years ago. Now we're looking to the future of government regulation of environmental contamination as we stare down an upcoming presidential election.
Conventional wisdom wags predict more regulation and environmental cleanup if we switch to a Democratic administration. But is that really the relevant question? Where is the current system of environmental regulation headed?
Sure, the USEPA is responsible for clean air, soil, water and even groundwater. But so are the several states. Well, more like all fifty of them. And virtually each one of them has their own "mini-EPA" acts.
Given 50 versions of the same thing, do we still need one big one?
Now I'm not one to invoke either the Federalist papers or even a nationalistic view that more is better and so is centralized administration, but the US Constitution has this little thing called the Commerce Clause (for fellow lawyers, even the Dormant Commerce Clause). For those who didn't spend at least four weeks in a law school ConLaw class going over in excruciating detail the multitude of variations in the Commerce Clause, I can reduce it to one relevant point for the purpose of this discussion. If the federal government has evidenced its intent to "occupy the field" of regulation, then the states can't regulate the same thing, unless the states enact stricter standards and don't interfere with interstate commerce, subject to some balancing of discriminatory effect and varying levels of inquiry, but the two latter tests are beyond the scope of this analysis.
It's a lot more complicated than that, but that short little definition should suffice for the purposes of the headline's question. It's pretty obvious that Congress intended to regulate the environment through the USEPA, as it has since 1972 when it convulsed in reaction to Love Canal and spit out Superfund, one of the first comprehensive set of environmental statutes adopted in the country. It's equally obvious, however, that the several states wanted their own say.
So that each state could deal with its own unique environmental issues - say burning everglades in Florida (prohibited) and burning fields in Idaho (permitted) - each state subsequently and separately over the last 30 years or so created its own set of environmental laws, each universally more strict than those regulations adopted by the USEPA. But Federalism has its merits. There is for the most part an oddly unique similarity of each state's environmental laws to those adpoted by Congress and the regulations promulgated by the USEPA.
It's a massive monster that moves very slowly and produces enormously difficult to understand and even harder to implement guidelines, which are treated as gospel within the industry. That level of detail simply can't be independently produced by a single state, so collectively, we have the USEPA to create that kind of pain.
On the other hand, by now the consultants and the regulators have that dance down to a science. We understand what is required to comply, and the consultants, lawyers and businesses comply. Heck, even the oil companies just voluntarily clean up leaking underground storage tanks in gas stations around the country. They hardly have to be told to do it any more.
We have even informally developed a system of relegating contamination cleanups between the USEPA and the states based on the logical criteria of the size and amount of the contamination. The USEPA takes the big ones, the states take the small ones and the ones in the middle are usually kicked back to the states by the USEPA. But even without this division of responsibility, the marketplace has become a major driver.
As MIPTC noted just recently, the Supreme Court restored sanity to voluntary cleanups. Those who cleanup contamination without being ordered to do so by the federal government can sue others who contributed to the contamination, even if the company conducting the voluntary cleanup also contributed to the contamination. Good old capitalism comes to the rescue.
Certainly cleanups don't always work voluntarily, and the number of lawsuits brought by both the USEPA and the various state enforcement agencies confirm the need for some level of regulation. Capitalism can't cure everything, but neither can a socialist approach.
But I think a combination of the two can do a better job than either independently. Imagine an incentive-based government agency. Sure, it's been proposed before, and dismissed with the alacrity of someone trying to marry Machiavelli's The Prince with Karl Marx's The Communist Manifesto.
But imagine, for a moment, a successful marriage of the two. In a way, as I've described above with the cooperation of businesses and the government, we've already got a version of it. There are many kinks in the current process, but the compatibility of social goals of clean air, soil, and water merge with business goals of profit, especially where both goals have a common understanding established by statute and regulation.
MIPTC predicts that the future of environmental law will involve some version of business and government cooperation to replace both the USEPA, the state regulatory agencies and the independence of business to form a new socially capitalistic venture.
Lawyer 2 Lawyer Internet Radio Gets Over Depression In The Profession
Depression among attorneys is becoming a serious problem in a high stress profession. On this week's Lawyer 2 Lawyer, we focus on the topic of lawyers and their personal battles outside the court room, specifically in the area of mental health and substance abuse with some first-hand accounts.
Join me and my fellow Law.com blogger and co-host Robert Ambrogi as we turn to the experts, Attorney Dan Lukasik of the firm Cantor, Lukasik, Dolce & Panepinto in Buffalo, New York and founder of Lawyers with Depression and Ellen Murphy, Executive Director of the non-profit website, Lawyers Concerned for Lawyers. Please listen to this important show!
How To Lose A CEQA Appeal, Even When You Win
There's A Difference Between Spin And Mischaracterization
And so goes the appellate court opinion, which not too cryptically notes, "Petitioners do not have to believe the County's evidence, but as appellants they have a duty to confront it. As Developer and the City point out, petitioners make many such misstatements and omissions."
Wow. In other words, once you abuse our trust, you lose our trust, which is one interpretation of this California Environmental Quality Act appeal.
Sometimes what you may in your wildest dreams think or believe is not what you should write down on paper, especially if you're going to submit that paper in the form of a brief to a court of appeal.
Here's what the Plaintiffs claim: "they imply the Project will raze prime farmland and "obliterate" "irreplaceable wetlands."
The appellate court takes issue with that claim: "Although some land is farmed and some has vernal pools, all has been in the general plan's 'Urban Growth Area' since 1993, only 'isolated' pieces of farmland are considered 'prime' and those are too small 'to be farmed on a practical basis,' and wetlands loss will be mitigated by a preserve and offsite restoration."
Not all that's in your imagination needs to make it to your argument.
The appellate court isn't finished, however. "As another example, petitioners claim the Project will 'obliterate' Morrison and Laguna Creeks."
While that may be imagined, the court's not buying it: "Such hyperbole is unsupported by the record, which shows these 'are normally dry creek beds' and that the Project as approved preserves Laguna Creek by creating an open space corridor, and that Morrison Creek crosses 'a small portion' of a corner of the Project land which will be subject to a site-specific design process subject [...] to approval by the Department of Fish and Game."
Needless to say, the resulting opinion doesn't look too favorably on Plaintiff's arguments, despite sending it back to the trial court for further proceedings, as ordered by the California Supreme Court. There's a way to get back to the trial court with your arguments intact, and there's another way.
Mischaracterize the facts, and you're likely to lose your legal arguments, too. MIPTC expresses no opinion on how this case will ultimately turn out other than to observe that there are likely better ways to reach a resolution. A victory at the Supreme Court level doesn't guarantee a victory at the trial court level, apparently.
Law School Casebooks To Be Rewritten Given This New Opinion Striking Waivers of Gross Negligence
Waivers of acts of sports-related gross negligence are no longer enforceable, as a sharply divided California Supreme Court held today, upholding an equally sharply divided lower court opinion. The Court ruled, "an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy."
The opinion is considered by some as a tour de force of Chief Justice Ronald George's writing, and well worth a detailed read, and likely sets a new benchmark in tort opinions across the country.
In other words, that waiver you signed may excuse a negligent act, but it won't work to protect gross negligence. It's a matter of degree, and largely dependent not only on the sport, but also the injury that occurs.
In the case of Janeway v. City of Santa Barbara, a developmentally disabled 14-year old girl drowned in a City pool when an instructor momentarily looked away. I'm not sure that amounts to gross negligence, but like I said, it's a matter of degree sometimes more dependent on the injury. Here, a young girl died in an otherwise safe environment; she had safely participated in the swimming program for the previous three years. A truly sad occurrence, however, and my heart goes out to the Janeways. Their advocacy raises questions far beyond this young girl's untimely death.
Those questions are evidenced by the wealth of amicus curiae (friend of the court) briefs filed by several groups, including the League of California Cities, the California State Association of Counties, NASCAR, the Sierra Club and 24 Hour Fitness health clubs supporting the position taken by the City of Santa Barbara. The City, of course, claimed the waiver of its gross negligence was effective. The Janeways contended otherwise.
Admittedly, the Sierra Club is an odd bedfellow in this group.
Even so, how do we deal with the fallout from this opinion? Will courts and juries now look right past waivers and examine more closely the conduct of the party who caused the injury? I think we exercise that inquiry now, but one thing will certainly be different.
There will be no automatic dismissal of plaintiff's cases. The courts and juries will confront the injury and the act that caused the injury.
Expect your insurance premiums and taxes to go up, and expect those who suffer injuries to recover more compensation. Perhaps both justifiably so.
Judge: Don't Read Newspapers Or Watch TV While You're On This Jury
Oh Yeah, And Don't Read A Blog, Either
That's right. Some five government witnesses and one juror got tossed because they read a blog about an ongoing criminal trial: Grimes & Warwick's coverage of the Peregrine trial in San Diego. The trial concerns the securities-fraud trial of four Peregrine Systems, Inc. officials.
Someone perhaps interested in the civil side of the case (can we say, "Plaintiff's lawyer?") hired State-certified criminal specialist attorney Bob Grimes to blog about the trial, and he and his wife Linda, a non-practicing lawyer, have done so religiously on their website. It's not a first for covering trials: in the Daily Journal, Don J. DeBenedictis's July 16, 2007 article notes that blogs have written about "the trials involving Lewis "Scooter" Libby in Washington, D.C., former Ku Klux Klansman James Seale in Mississippi and lead-paint makers in Rhode Island."
And presumably who better to cover trials than lawyers?
The reporting is more accurate and perhaps more boring at the same time. Newspapers write to a sixth-grade audience, lawyers write at the graduate school level, and assume (sometimes too much) familiarity with procedure and legal niceties. Perhaps with a bit of a twist, lawyers Kevin O'Keefe and Anne W. Reed of Milwaukee law firm Reinhart Boerner Van Deuren have written about Grimes' coverage.
And now I'm writing about their coverage, as well as DeBenedictis's coverage. Will it never end?
But this one's a bit different. According to rumor (Grimes declined comment), Grimes has been paid $150,000, or $2,500 per day for 60 days of blogging to cover the trial. Rumors also allege Grimes writes one version for the party who hired him to blog, and another version is posted on the Internet. Estimates are that nearly $5 billion is involved with the capitalization of Peregrine.
Interestingly, it doesn't appear that any of Grimes' posts reveal anything about payment to him for his blogging, but I've only skimmed and searched his posts, not read them for the last sixty days of his trial. Grimes does provide this cryptic note: "A class action on behalf of Peregrine stockholders is being litigated in front of United States District Judge Roger Benitez. This civil lawsuit involves many of the same issues that will be litigated in the criminal trial in front of Judge Whelan. .... The federal class action is currently stayed, pending an appeal."
There's nearly five billion reasons to want a daily report.
New Advertising Campaign May Ditch Values, Create Liability - You Decide
Don't get me wrong here; I'm no moral barometer, certainly not a moral compass, and likely not even a moral thermometer, if there's any such thing. Even so, I was struck by the advertising program used by the new shopping center at The District in Tustin Legacy, just down the street from my home. As a disclaimer, I'm the father of three who are in their late 20's and early 30's and with two out of the three married, and all three with jobs, so presumably the advertising campaign is not aimed at me.
Here it is: "Ditch Mom," on a giant-sized poster featuring a pre-teen girl looking at the words "Ditch the kid," on an equally giant-sized poster featuring a 30's-something Mom, plastered on the side of one of the stores on the Jamboree-South road side of the shopping center, west of the hangars.
Is the campaign designed to feature a fracture between parents and children? If so, then so much for family values. Or is it really the other way around? Is The District's advertising campaign designed to highlight the shopping center as a safe place where Mom and daughter can separate, wander around and be alone for a period of time, only to hook up later just before going home?
I'm not really sure, but if the latter is the message, then I can only assume The District wouldn't want the legal liability associated with such an implied promise of child safety. If the former, then you're the judge. Thoughts? Comment below, or let The District's Marketing Director know what you think by sending her an email.
LA Galaxy Introduces Beck-ho-hum
David Beckham has arrived in LA, only to be greeted by a blitzkrieg of cameras, but not a lot of fans. The LA Galaxy stadium was not even 1/4 full of fans as shown by CNN's coverage earlier this morning. According to news reports, some 5,000 fans appeared, which barely makes a dent in the 27,000 seat stadium.
And you're surprised?
Heck, we can't even support a full-time NFL/AFL (American) football team, we're confused where the Angels play baseball and we have nearby college teams called Banana Slugs and Anteaters.
I rest my case.
As if that weren't enough, give some thought to Michael Jordan, Lebron James, Tiger Woods and any number of other sports stars. Their "introduction" was their performance. Sure, Beckham is an outstanding soccer player. That's a given, but it's not the reason the LA Galaxy hired him.
They hired him to draw soccer fans to the sport. So far, it's been a dud. No screaming legions of fans like the Beatles or other "British invasions." He's just getting started here, so time will tell.
Apparently both the LA Galaxy and Beckham both benefit from increased ticket and goods sales according to reports of the contract between the two. Whether fans will join in on that contract remains to be seen.
Yikes! We're Running Out Of Lawyers
Well, at least we're getting older, and older much faster than before. It's a proven fact that as you get older, time passes on a geometric scale - especially compared to young kids (aka your grandchildren), who count their age by the half year.
In fact, an article in this month's California Bar Journal claims that the average age of a California attorney is 47. Last year a whopping 35% of us were over 55 (MIPTC has hit the half century mark, but I'm not in that statistic yet, thank you very much). As proof of my theorem, the article further notes in 2001, only 24% of us were over 55, but way back in 1991, a mere 14% of us were over 55.
You do the math.
The article focuses on lawyers in firms pushing retirement and how the demands of a fast-paced, cash-intense billable hour structure designed to cut out dead wood in law firms encourage earlier retirement year after year. Right. Go become a law professor. I think not. But when I read the article, what struck me was the rapid increase in the age of the lawyers surveyed, disproportionate to the gap of years in between. Even I can do that math, despite not having a degree from MIT. Perhaps it's second career switches, perhaps more lawyers are willing to report their age, perhaps more accurately.
But whatever the reason, it's clear lawyers are greying at a faster rate than before. Just look at my beard and hair - I'm a prime example. Couple that with the uptick in lawyers retiring early and - believe it or not - human resources plans to get attorneys to retire early, we have a recipe for disaster.
Before you know it, we'll run out of lawyers.