Da Beers!

Da Beers!

Thursday, March 17, 2016

The Myth of Shareholder Supremacy

This is an oldie but a goodie.

A 2010 article by Loizos Heracleous and Luh Luh Lan in the Harvard Business Review asked the legal question: Why are corporate directors so convinced of their obligation to shareholders that they’d make decisions with damaging social or environmental impacts?

Their research was informed by an earlier Journal of Business Ethics study which showed that in a survey of 34 corporate directors (who each served on an average of six Fortune 200 boards), 31 said they would “cut down a mature forest or release a dangerous, unregulated toxin into the environment in order to increase profits.” These corporate directors believed they were required to do whatever they could legally do to maximize shareholder wealth.

The authors point to the fact business schools still teach a 1919 case from Michigan, Dodge v. Ford Motor, for that view—even though an important 2008 paper by Lynn A. Stout explains that it’s bad law, now largely ignored by the courts.  Moreover, Dodge has been cited in only one decision by Delaware courts in the past 30 years.  And, of course, Delaware is the venue for most corporate litigation.

The authors also pointed out that shareholders do not "own" the corporation, which is an autonomous legal person. What’s more, when directors go against shareholder wishes—even when a loss in value is documented—the courts support the directors most of the time. 

Long story short, there's no commanding legal doctrine that compels environmental or social destruction ... even if that's the most economically profitable choice.

Tuesday, January 26, 2016

Corn-pone Crackpot Constitutionalists

UPDATE 26-Jan-2016:

Ammon and Ryan Bundy, and three of their merry misfits -- Shawna Cox of Utah, Ryan Waylen Payne of Montana, and Brian Cavalier of Nevada -- were arrested today at in a traffic stop in Harney County.

Another miscreant -- reported to be LaVoy Finicum who had emerged as de facto spokesman for these criminals -- was killed when shots were reportedly exchanged.

Peter Santilli of Cincinnati, and Joseph Donald O’Shaughnessy of Cottonwood, Arizona, were arrested later in Burns.  

Remote coward John Eric Ritzheimer turned himself in to police in Peoria, Arizona.  The Oregonian reports that Ritzheimer, 32, a "key militant leader," rose to fame complaining on a video about the delivery of dildos to the refuge in response to pleas for supplies.

Absurdly, the group was reportedly on their way to yet another off-site press opportunity about 70 miles away in John Day, Oregon.  Local media reports that roadblocks had finally been set up to limit access to the occupied wildlife refuge.

I'd like to believe these assholes went out in a final blaze of stupidity -- exercising their rights as "sovereign citizens" to use public highways that they feel no obligation to help pay for.   

The Times reports that these nitwits face a federal felony charge of conspiracy to impede federal officers from discharging their official duties through the use of force, intimidation or threats.  But I could come up with a dozen or more additional charges if the U.S. Attorney needs help.  Call me!

It'll be interesting now to see if the federal government that Ammon Bundy and crew don't "believe in," will have the cajones to prosecute these fools and put them away for a long, long time. 

Now it's time to clean out the rest of the rat's nest at Malheur and call in the CSI and refuge folks to figure out just how much economic damage these fools can be charged for.

From top left, booking photographs of Ammon Bundy, Ryan Bundy, Brian Cavalier and Shawna Cox. From bottom left, Ryan Waylen Payne, Joseph Donald O’Shaughnessy and Peter Santilli. Credit Multnomah County Sheriff

UPDATE 13-Jan-2016:

Nancy Langston, a professor of environmental history at Michigan Technological University, has a great op-ed in the NY Times that walks us through the difficult history of Malheur NWR.  Her conclusion:
When mythic histories supplant the complexities of the past, the results can be lethal. Equitable futures for Western public lands won’t be achieved when ideologues swagger in, brandishing guns and taking over federal buildings. Rather, they develop from the hard work of collaboration, like the 2013 effort that brought together the local community, tribes, conservation groups and the state and federal governments to develop a new management plan for Malheur. These are the efforts that best respect the region’s history while pointing the way to a sustainable future.
Meanwhile, we sincerely hope Billy Williams, the U.S. Attorney for Oregon, is working on indictments for Ammon Bundy and all the other 20-odd fools staffing the barricades in Voltage-Princeton.  These people should be going away for a very long time, and should also be forced to reimburse taxpayers for economic losses -- including the $100,000+ per week in salaries their tomfoolery is costing us.

But we're not holding our breath about that either.   As pointed out by the Public Employees for Environmental Responsibility (PEER), the armed seizure of Malheur National Wildlife Refuge was a foreseeable outcome of the utter lack of a coherent response to earlier confrontations with anti-government extremists.    A July 2014 Homeland Security assessment entitled “Domestic Violent Extremists Pose Increased Threat to Government Officials and Law Enforcement” supports that view, correctly predicting that the “perceived victory” of the Bundy stand-off with BLM in Nevada “is galvanizing some individuals – particularly militia extremists and violent lone offenders – to actively confront law enforcement officials, increasing the likelihood of violence.”  The DHS assessment went on to link the murder of two Las Vegas police officers to this ongoing policy failure.

UPDATE 11-Jan-2016:

Unlike the Bundy-type legally futile efforts to hand federal and back to the "original owners" (which, again, we assume does not mean the Paiute tribes), the New York Times reports on an effort that could achieve real results ... especially if a Republican or Republican-type takes the White House in 2017.   

One of the well-heeled lobbying groups leading this charge is the American Lands Council, and Utah-based group funded by donations from county governments, and by Americans for Prosperity (the group backed by the billionaire Koch brothers).

The American Lands Council is a non-profit organization founded in 2012.  Their mission is to "secure local control of western public lands by transferring federal public lands to willing States."

Sound great, right?  The only problem I can see, based on my years in government service, is that the morning after this hoped-for transfer occurred, states – and primarily their county political subdivisions – would find themselves responsible for environmental management, law enforcement, fire protection, and a host of other jobs federal agencies now do.  And there'd be no additional money in state coffers to cover any of these costs.  It would be the classic case of being 'land-poor'.

It doesn't take a lot of imagination to figure out what would happen next.   The states and counties would quickly move to sell off their newly-gained lands to raise money.  The pretext would be to raise money to pay for managing all these lands.  But the temptation would be extreme to also use the money to lower or eliminate other taxes – which would of course appeal greatly to the same teabagger types.
So who would have the ready cash to bid at auction for these former federal lands?   Transnational corporations.  The Koch brothers, and their one-percenter country club pals.   Chinese and Russian Mafia billionaires. In other words, the same people who currently own most of everything in this country except for those much-coveted, resource rich federal lands.
Long story short, if you live in the American West, and if you've always taken for granted access to millions of acres of public lands for hunting, fishing, camping, hiking, birding, etc. – well, prepare for a whole new reality if lobbyists like the American Lands Council get their way.  Within a generation, it'll all be gone.   These lands will lie behind gates with big "No Trespassing" signs.


As of 06 January 2016, we're hearing that Ammon Bundy and his misguided stooges will go home as soon as all federal land is "returned" to ranchers and state governments.

Sadly, this simple-sounding idea speaks volumes about the ignorance of these poor saps.  The federal lands can't be "returned," because in the case of almost all Public Lands, these lands have been owned by the 'sovereign' (first the king, then the U.S. federal government) from the moment the first white man stumbled ashore and planted a European flag.  If you doubt that's true, just ask any Indian tribe -- including the Northern Paiute whose land Malheur NWR and the rest of Harney County once was -- whose land ownership was stripped away by the federal government under the so-called Papal Doctrine of Discovery.

Long story short, if it never belonged to you, it can't be "returned" to you.  Right?

Any land in the U.S. now owned by a state, county, city, corporation, individual, or Chinese billionaire, was at some point in the past 'patented' out of federal ownership by the General Land Office or BLM under authority of some federal law or another (e.g., homestead laws, donation land acts, statehood organic acts, etc.).

That said, we here at BAVOB don't condone the growing demands for these protesters' blood.  (Search Twitter for “Oregon” and “drone strike” and you'll find tons of people proposing to give the Malheur activists the Abdulrahman Awlaki treatment. TV host Montel Williams tweeted that the authorities should “put this down using National Guard with shoot to kill orders.” “I hope they pull a M.O.V.E. on those terrorists in Oregon,” wrote the author Jess Nevins, alluding to a black militant group whose Philadelphia headquarters were bombed by the police in 1985, killing 11 people and destroying dozens of homes.)

No, these guys aren't terrorists in the sense of ISIS or Al Qaeda.  They're just really poorly misinformed by the faux-lawyer leaders of this crackpot "movement" like the Bundys ... uber-crackpots who seem to have spun this crazy idea into another full-fledged family cottage industry.

And that just seems to call for better education and more collaborative federal land use policies, not for execution by drone strike. 


You all know I respect anyone’s right to get thoroughly moosed up over just about anything … even if they clearly have no idea what they’re talking about.  But I draw the line when they seize public property, and when they take to disrupting and endangering people’s lives like these “Sovereign Citizen” jackasses are doing out east in Harney County, Oregon.


As amateur ornithologists who have birded and supported Malheur National Wildlife Refuge, we also have a personal dog in this fight.  So I'm taking the gloves off. 

*  *  *

As a bit of background, Malheur National Wildlife Refuge was established in 1908 by President Theodore Roosevelt – hardly a raving socialist in anyone’s book – by setting aside “unclaimed government lands” as a “preserve and breeding ground for native birds.”  (Let’s skip for now the fact that this land had actually been “claimed” by the Northern Paiute tribes since time immemorial, that Malheur was once part of a “permanent” 1,778,560-acre reservation guaranteed eastern Oregon’s “wandering” Indians in 1872, and that the reservation was stripped away from the Paiute less than four years later at the demand of local stockmen and ranchers who thought all that scrubland was being wasted on “savages.”) 

Malheur National Wildlife Refuge was the 19th in a line of 51 unique and irreplaceable national wildlife refuges created by Teddy Roosevelt during his presidency.  I guess executive action is only categorically evil if committed by a black Democrat?  But again, I digress.

And what an amazing place Malheur is, being a crucial stop along the Pacific Flyway that offers resting, breeding, and nesting habitat for millions of migratory birds, as well as habitat for local flora and fauna.

Nor would this important wildlife resource likely exist today without federal efforts.  As the Great Depression roiled the nation, President Franklin Delano Roosevelt created the Civilian Conservation Corps (CCC) in 1933.  With the purchase (not condemnation) of the Blitzen Valley portion of the Eastern Oregon Land and Livestock Company holdings, the Malheur Refuge became an ideal location for CCC people and projects that improved the refuge and supported local businesses through the worst years of the Great Depression with the ongoing purchase of vast quantities of food, fuel, construction materials, and related provender.

Allow me to anticipate the rebuttal here: that just like they've been harassing the poor Hammond family (who didn't arrive on the scene until 1964, and who knew full well they were buying their small ranch right next door to an operating wildlife refuge), the feds must have intentionally driven Eastern Oregon Land and Livestock Company out of business in 1933 so the evil feds could grab their land for their nefarious purposes.  Maybe as a secret landing field for black UN helicopters that the feds secretly knew would be invented in a few decades?  Well, since American national politics during the decade leading up to the Great Depression were dominated by the Republican Party, which controlled both the White House and Congress right up through the 1932 election, it's pretty tough to maintain that proposition.  But I'm sure some will!

Anyhow, where were we?  Oh yeah  – with Ammon Bundy and 100-150 other thugs occupying the public's CCC-built refuge headquarters.  Which is costing us all thousands of dollars daily as Burns area federal employees sit home out of concerns for their personal safety.

Now, I’m not surprised Ammon Bundy can’t articulate what his group of trespassers actually hopes to achieve.  When asked what it would take for the protesters to leave the refuge headquarters, Bundy reportedly replied: “The people will need to be able to use the land and resources without fear as free men and women.  We know it will take some time.” 

Alrighty then … clear as mud!

And I’m not surprised because, having waded through thickets of hair-brained rhetoric in an effort to understand what the entire “Sagebrush Rebellion” gang wants … well, I still have no clear idea.  And it sure ain’t for lack of trying on my part.

Best as I can tell, however, what it all seems to boil down to is a legal theory – I'll dignify it with that label that the intent of the nation's founders and 225 years of constitutional jurisprudence aside, we’ve got it all wrong about the federal government.   

In a nutshell, these well-meaning folks don't believe in the existence of a federal government with authority to own and manage land, or to enforce laws.  Speaking to radio host Dana Loesch, Cliven Bundy once said he believes in a “sovereign state of Nevada,” but that he doesn’t “recognize the United States government as even existing.”   Where did they come up with such an idea?  No idea.

Flowing from this hogwash, Cliven Bundy’s refusal to pay upwards of $1 Million in BLM grazing fees and fines in Nevada is very loosely grounded in Bundy’s notion that the land around his 160-acre Nevada ranchette belongs to the state of Nevada, not to the federal government.  Never mind that the State of Nevada itself lays no such claim to that land!  

No word on the Bundy family's stance on Santa Claus.

*  *  *

While no one would accuse the BLM of being some kind of environmental angel, the so-called “Sagebrush Rebellion” seems to be a reaction to significant federal land-use policy changes in the 1970s as a more environmentally-oriented federal government began imposing use regulations on its vast holdings in the West.  This policy sea-change was based in laws like the National Environmental Policy Act (NEPA) – referred to by some as America’s “environmental Magna Carta” – that was signed into law in 1970 by none other than that liberal political firebrand, President Richard M. Nixon.  Still, many westerners chose to point the blame instead at President Jimmy Carter, who they accused of using Nixon’s environmental laws to target states that didn’t support Carter’s presidential run.  Okay.  Maybe.

So how did we get here from there?

Near as I can tell, all this “Sovereign Citizen” thinking comes from people talking exclusively to other folks who look and think exactly like you do and from otherwise ignoring, you know, ‘reality’.  Which always tends to cause problems.

The one thing I do know is that if these corn-pone intellectuals like Cliven Bundy could have an audience with this country’s founders … well, they’d be laughed right out of the room.  Because if there was one thing America’s founders universally shared, it was a healthy fear of and disdain for an ill-informed, hyper-excited, well-armed rabble like these f-tards now occupying Malheur. 

That’s why the founders included the term “well regulated Militia” in the Second Amendment – their idea of “well regulated” being leadership by landed and educated “gentlemen” who knew precisely what time it was. 

And it’s why the founders separated the rabble – i.e., you and me! – from direct election of the President (think ‘Electoral College’), the Senate (up until the Seventeenth Amendment, ratified in 1913, U.S. senators were elected by state legislatures), and Supreme Court justices (while many states elect even their highest judicial officers, our sage founders chose instead to have ALL federal judges appointed by the indirectly elected president, and confirmed by the indirectly elected senate.)

While we’re on the subject, let’s also clear up this business of a ‘non-existent’ federal government.  That too would shock and awe any Founding Father presented with such a crazy notion.  Because that was a main point of the U.S. Constitution.  As soon as the American colonists had struggled free of King George III, the first thing they tried to do was establish their own strong national government.  And they kept trying until it finally "took" in 1789.

Sorry to be the bearer of bad news, but the modern so-called Tea Party movement is on no better footing than the Sagebrush "rebels."   America’s founders weren’t against government, and they weren’t against taxes.  They were just dead-set against non-representative government (which they considered “tyranny”), and they were dead-set against “taxation without representation” (which was the sole reason for the Boston Tea Party of December 1773).  Otherwise, the founders knew full-well that there were some things that could only be done by a strong central government, and they devoted themselves to creating one of those from the earliest days of the American republic.   

Sorry Cliven.  Sorry Ammon.  You’re both on the wrong side of history.

*  *  *

That said, is there any real oppression going on in this country?  Oh, you bet there is!   

But it’s not orchestrated oppression by wildlife refuge civil servants trying to improve and protect habitat for migrating ducks and geese.  And it’s not by BLM range managers charged working to ensure that private users of the public domain (like Cliven Bundy) pay for what they use, and that their cattle don’t destroy the public’s range lands in the process.

No, the real oppressors of today are the so-called one-percenter mega-rich (both Americans and foreigners) who control America’s tax codes, property laws, and land use regulations through their wildly disproportionate influence over the political process through paid lobbying and virtually unregulated campaign finance. 

The true oppressors of today are also the mega-corporations (both Americans and foreign) which collect any small tax burden they pay from us, their customers, as part of their product or service pricing structure.  And which collect what amounts to an "existence tax" from all of us, daily, through legally-sanctioned monopolistic practices that allow these transnational corporations to set and maintain the prices we all pay for the necessities and amenities of modern life:  food, fuel, shelter, clothing, health care, education, internet access, and virtually everything else our paychecks or pensions go towards.

Still, as long as these real and true oppressors of the people can keep us common working stiffs distracted – by trumped up fights between Republicans and Democrats, Blacks and Whites and Mexicans, Christians and Atheists, Hippies and Patriots, Sovereign Citizens and Federal employees – then won’t any of us have the time or energy to think about them.  And that’s all the true oppressors really need to keep on keeping on, right?

Monday, June 1, 2015


A House committee cut about a fifth of Amtrak’s funding on a party line vote the day after the fatal Amtrak derailment in Philadelphia. Presumably this was meant to punish Amtrak for the horrific accident that killed 8 and injured more than 200 with some in critical condition.

The problem with this pretzel logic is that Congress voted in 2008 to implement Positive Train Control (PTC), a computerized system that would have slowed this runaway train.  Sadly, however, Congress has never actually funded PTC. Does that mean all this blood is actually on the hands of Congress?

All the other civilized/industrialized nations (China now included) understand the value of a modern rail system, and they’ve put their money where their mouths are.  Meanwhile, the US continues to underwrite air travel with billions of dollars in subsidies … but won’t spend a few million on rail safety technology that would save lives.

Follow ups:

Has a train engineer ever used a passenger train to commit suicide a la the co-pilot of Germanwings Flight 9525?

Has Congress ever stopped the billions in tax dollars that subsidize air travel in this country (more than $155 billion as of 1999 according to a secret Congressional report)?

Federal Direct Spending on Aviation, 1918 to 1998
federal aviation subsidies

Thursday, February 5, 2015

Oregon 2020 ... Oh, so that's what all those empty "Hotspots" are about

Our Baker County blitz crew, after finding 189 species and generating 675 checklists for eBird and the Oregon 2020 project, in a single weekend in June, 2014.

Baker County blitz crew, after finding 189 species and 
generating 675 checklists for eBird and the Oregon 2020 
project, in a single weekend in June, 2014

Oregon 2020: A Benchmark Survey Built on eBird

Humans change the land, sea, and climate. Birds respond to such changes. We are the first generation of humans to realize we are partly responsible for climate change, to know that we are altering the habitat of Earth’s biodiversity, and to have the technological capability to map, measure, instantly share, and electronically archive our observations of nature.

The Oregon 2020 project recognizes our unique position in history and uses eBird to create a benchmark survey of Oregon’s birds. Oregon 2020 aims to provide high quality data on the distribution and abundance of birds across Oregon as we approach the year 2020. Working together, we create an information legacy that will allow future citizens and scientists, decades and centuries from now, to compare bird populations in their time with those today.

Oregon 2020 relies on contributions from birders using eBird and the eBird Northwest portal. Birders have amazing skills that provide useful data when they simply collect and archive their observations. eBird is about more than managing our own species lists. It is about legacy. We want that legacy of data to be high quality. To support that, Oregon 2020 is conducting workshops and creating online tutorials to train birders in best practices when identifying, counting, and mapping birds and we coordinate County Blitzes on long weekends to socialize, explore, and count birds in relatively poorly studied portions of our state.

County blitzes are a lot like a Christmas Bird Count, except we count during the breeding season. The areas each person or team covers fall within a county. Each team visits 2 to 4 of our Hotspot Squares during the day, in addition to birding wherever they want. Then we rendezvous at the end of the day and share results and stories. In 2015, we have scheduled five breeding-season County Blitzes – join us here:

23 and 24 May: Sherman and Gilliam counties
30 and 31 May: Columbia and Clatsop counties
6 and 7 June: Wheeler County
13 and 14 June: northern Malheur County
27 and 28 June: Wallowa County

If you don’t like exploring too far from home, there is probably a Hotspot Square near you. Observations any time of year are valuable. So if you are headed out to your favorite local birding spot, check to see if there is a Hotspot Square nearby and make a few counts there, too. Even contributions of feeder birds are valuable. Most of us discount the value of our daily observations of common birds. Consider this: if you knew someone had counted birds at your favorite hotspot or in your current yard 300 years ago, would you take a look at those data to see how things have changed? Of course, you would! eBird allows us to make our observations today available to future birders. What’s normal and boring to you now may be very interesting in the not-so-distant future. Just log into eBird Northwest and report your observations.

Please contact us at Oregon2021@gmail.com (yes, that’s Oregon2021, not a typo) or visit our web site (Oregon2020.com) if you are interested.

Article by  W Douglas Robinson

Sunday, January 11, 2015

Urban Crows

A recent report on Oregon Birding On-line (OBOL) about an urban Peregrine Falcon in Salem, Oregon got me to thinking about an urban PEFA we were lucky enough to spot in downtown Portland, Oregon in early December of 2014.

It seems beyond ironic that as the population of PEFAs seemed to have rebounded, the American Crow seems to have has replaced the feral pigeon as the most common urban bird in many American cities.

Here's an interesting 2001 UW article on the subject by John M. Marzluff, Kevin J. McGowan, Roarke Donnelly and Richard L. Knight.


To the extent that the American Crow seems far too large and aggressive to provide good aerial prey for PEFAs, the odds of seeing these amazing predators in places like downtown Portland seems less likely than ever.

Here's a nighttime picture of just a few of the thousands of AMCRs that were roosting on SW 6th in Portland in early December 2014:


Undisclosed Location

Mike Patterson makes an excellent case for why it's not a God-given constitutional right for birders to invade people's neighborhoods, post their addresses, and generally make asses of themselves (and all other birders by reference).

But a word of warning.  Birders -- especially those of the Big Year ilk -- don't like to hear this message.  I innocently suggested the same idea a few years ago on the infamous (and now defunct) San Diego Bird listserve when hordes of birders had invaded yet another quiet residential neighborhood in search of some rarity. 

All I managed to accomplish then was to set off a torrent of seething vitriol that led me to quit posting anything on that listserve.  Or on any birding listserve for that matter.  Who needs the grief and kickback?

Nowadays I list all our birds -- from mundane to uber-rare -- on eBird.  If someone's looking for such a bird, the data is there for them to access.   But the last thing I want to do is to enable some self-serving fool who may jump in their car and blaze across the state, hoping to tick off that bird on their Big Year list.

Wednesday, August 13, 2014

When Did Republicans Start Hating the Environment?

That's a question I've asked myself more than once.

Well, the answer is roughly 1991 according to a new study.


Chris Mooney over at Mother Jones explains more fully, but the fact is, it was during the uber-Republican Nixon administration that the nation's most important and enduring environemntal laws and agencies were established:  The National Environemntal Policy Act of 1969 (NEPA), the Endangered Species Act of 1973, the Environmental Protection Agency (EPA), and the National Oceanic and Atmospheric Administration (NOAA).

Nowadays, these laws and agencies -- and their roles in combating global climate change -- are the seethingly hated poster children of the "socialist threat" of climate change politics.

So what happened?

According to a new study in the journal Social Science Research, the key change actually began around the year 1991when the Soviet Union fell. "The conservative movement replaced the 'Red Scare' with a new 'Green Scare' and became increasingly hostile to environmental protection at that time," argues sociologist Aaron McCright of Michigan State University and two colleagues.

So what happened in the early 1990s?

For starters, Bill Clinton and Al Gore took office.  Gore had just published his Earth in the Balance, and this was also when a new zest for attack politics took hold -- when tearing down anything and everything a Democrat president stood for became the raison d'etre of Republican strategists.  Together, these things made environmental issues an important political tool in the right-wing toolkit.  And since the "left," led by Gore, had staked out the pro-environment position, that meant Republicans had to de facto oppose it.  At least in the fevered little brains of emerging righties like Karl Rove.

Throw in the influence of the 1992 Rio Earth Summit which seems to have scared the hell out of the xenophobe wing of the party, and add in the phenomenon of "party sorting" which helped strengthen and ossify American political ideologies, and you start to see how things went so very wrong.

Sadly, the result is that we probably have reached a point where political compromise on environmental issues is near-impossible.  And that doesn't bode well for America's ability to deal effectively with the wide range of environmental problems, just when the need to do so is greater than ever.

Tuesday, August 5, 2014

Climate change refugees ... stay put!

Sure, Seattle weather guru Cliff Mass says the Pacific Northwest is the last best place in the lower 48 as the climate goes to shyte (thans, BP, Shell, and the Bush family!).  But don't flock here.  Really.  The people are just the worst.  Many of the beers are too darn hoppy.  The coffee is way too strong.  All the greenery hurts your eyes if you're used to California scrub.  And it rains so much you'll likely need a raincoat. 

Word. To. The. Wise.

Thursday, June 19, 2014

Future generations gets their day in court (at least in Oregon)

The Oregon Court of Appeals has held that two teens are entitled to a judicial declaration of whether Oregon officials have a “public trust” obligation to “protect the State’s atmosphere as well as the water, land, fishery, and wildlife resources from the impacts of climate change.”

In Chernaik v. Kitzhaber, the court reversed the trial judge’s dismissal of the case and remanded for a decision on the merits.  This is one of dozens of similar actions brought in the name of kids across the country to force government to act more aggressively to combat climate change. The young activists—with a little help from environmental advocacy groups Crag Law Center, Center for Biological Diversity and Western Environmental Law Center—argued that the state has displayed a frustrating lack of urgency:  “I don’t want to live in a wasteland caused by climate change,” Olivia Chernaik told the Eugene Register-Guard.

The public trust doctrine stems from English common law, which states that some resources are so central to the well-being of citizens that they cannot be freely alienated and must be protected. The doctrine was adopted by the U. S. Supreme Court in its 1892 decision Illinois Central Railway v. Illinois, which held that the state could not convey outright title to a substantial segment of the Chicago lakefront.

In 1983 the California Supreme Court greatly expanded the doctrine in National Audubon Society v. Superior Court, extending the public trust doctrine to limit already-vested water rights. In that case, the issue was whether the state must act to limit the Los Angeles Department of Water and Power’s appropriation of water from tributaries to Mono Lake in the face of declining lake levels.  The expansive reading given the public trust doctrine by the California Supreme Court set the stage for court imposition of regulatory controls to protect the environment, even if doing so might upset settled property rights in a natural resource.

When the Chernaik case is re-heard on remand, we'll find if if Oregon courts will pick up the public trust baton.  Among other things, the state could be ordered to do more to limit greenhouse gas emissions —even if that comes at the expense of other political priorities.

Wednesday, June 18, 2014

Is the California water situation hopeless?

California drought solutions infographic
NRDC and Pacific Institute’s issue brief "The Untapped Potential of California’s Water Supply"

Not according to a story in Mother Jones.  Increasing water use efficiency -- something the energy experts have been focused on for years -- can do wonders. 

But it requires faith in, and public backing of the government.  For which most Americans just seem to have lost all capacity. Which is why Americans seem doomed to keep sliding into third-world status while other industrialized nations continue to rise.