June 19, 2008

Guest Editorials--Global Warming Legal Theories, Guns And Church Security

From now until the election SP will feature guest editorials/rants on everything from politics to the environment to religion and everything else in between. Today there are two--First up, JD (who has blogged here before) tears apart a new radical environmental legal theory, and Meg offers her take on an article concerning security (read: guns) at Churches and argues for guiltless self-defense.

There is no censorship at SP, and though the view may from time to time depart from SP's "politics." This is excellent for two reasons--1) the only true "diversity" is a diversity of opinion guaranteed by the Constitution and the only method for providing a true forum for the exchange of ideas; 2) additional voices strengthen any blog. I welcome them both, and if you have responses or questions, leave them in the comments. I know they'll be appreciated.

JD--first read this:
University of Oregon law professor Mary Wood is tired of waiting for government officials to take action on global warming. So she’s devised a new legal tool to hurry them up.

...Wood has developed a theory that claims the atmosphere is an asset that belongs to all but is held in trust by the government. The government has a legal obligation to protect that trust from harm, she argues…
The legal response:
What utter nonsense. Even the news page at her own the law school’s web site seems to acknowledge that her theory will probably lead to frivolous and nuisance lawsuits; the only benefit might be pushing the Federal government to negotiate with environmentalists in order to discourage those lawsuits.

She has some severe problems with her theory, all of which she glosses over by claiming that, as an academic, she will leave actual litigation strategy to practicing attorneys. Of course she will. That is because there is no way to implement her strategy in actuality.

The Clean Air and Clean Water Acts are both federal statutes and have clearly articulated enforcement provisions upon which the courts can rely. They do indeed flow from the public trust doctrines in common law. However, they also go considerably further than the origins of the common law doctrine, which basically held that submerged and submersible land was to be held and preserved by the state for public use in navigation, fishing, and recreation.

If Congress wants to go beyond the common law and write another law to deal with global warming, it is certainly entitled to do so. At that point, the courts would gladly enforce it. Congress has not done this, though, which is why Prof. Wood is promoting her theory. Instead, she wants the courts to extend the common law doctrine themselves. This will not happen.

Courts are hesitant to extend the common law unless it clearly fits with extant legislation. While the courts may tell the EPA that it needs to look at carbon emissions as part of its mission as defined by statute, it will not tell the EPA what standards it needs to set. With that sort of hesitancy, the courts are not about to go so far beyond statute as to order the EPA to take up the fight against Global Warming. They would need clear legislative direction before they would ever do such a thing.

Prof. Wood is attempting to take all the environmental protection cases and laws and argue that, en mass, they provide a basis for viewing the global atmosphere and climate as a public trust. Sure, the air in Denver is a public trust as it clearly affects the health and well being of the people who live here. It is also clearly regulated by statute. The same cannot be said of the entire global atmosphere and climate. There are not clear laws regulating that here in the U.S. More to the point, the U.S. cannot legislate to the rest of the world. Without worldwide effort, any effort is largely pointless. Treaties and executive agreements, not court rulings, provide the only means of achieving worldwide action.

Let us ignore that fundamental problem for a moment, though. Let us assume that the U.S., by its own actions, could have a major impact on the world climate and atmosphere. A court would still want to know what that impact could be. The sad truth is that no one knows for certain. There are a lot of theories, but no absolutes, and the range of different models is severe. Also, before declaring the atmosphere and climate public U.S. trusts, courts must balance the uncertainly of any action against the negative impact on commerce and personal liberty such action would have. That we can measure with certainty, and it is enormous. The bigger the impact, the higher the standard the court will set before it rules. Can it be shown that there is an extremely important state interest at stake which cannot be protected by less restrictive means? I rather doubt it. Environmentalists would have to admit that we would be creating major economic upsets for extremely uncertain results. The opposition would then show that the earth has undergone numerous climate shifts over time, that it is unclear how much impact humans are having, and even more unclear as to whether we can do anything about it if we are a major factor. Faced with that, the courts would universally hold that this is a political issue which must be decided by the political branches.

No court is going to extend the common law without clear legislative instruction on such a thin pretext. No amount of creative argument will change that. No matter how many scientists are brought in, an equal number can be brought in by the opposition who either disagree or show different results—even while agreeing in principle. The courts won’t touch this. It is too big and too broad. Bring a case that says aerosols are destroying the ozone, and they may happily outlaw those particular aerosols. A certain type of fishing is driving sea turtles to extinction? Fine. Pick your venue; even the WTO adjudication body will help there. But global climate change? Too big, too broad, too political. In truth, I would call it a matter of faith, and the courts have done a very good job of maintaining the separation of church and state.

Julian Dunraven, J.D., M.P.A.
Our second editorials takes aim (sorry, couldn't help myself) at the issue of guns in Churches, a particularly important topic given the twin shootings at religious venues last December here in Colorado:
The Denver Post profiled a church security workshop that took place last Thursday in east Denver. Church representatives came to the workshop presumably to learn how to formulate plans to make their churches a little safer in the wake of madman Matthew Murray’s shooting spree at New Life Church in Colorado Springs.

Unfortunately, the Post’s article has the usual slant. The headline? “More churchgoers are carrying guns: Trend since shootings is risky, church leaders told”. There was no mention of Jeanne Assam, the woman whose bullets brought Murray down; she was again referred to as “a New Life security officer.” No mention of New Life’s senior pastor Brady Boyd’s praise of the security plan that had been implemented that Sunday. Assam had heard of the shootings in Arvada and suggested that the church increase security measures just in case. Boyd credited the security plan with saving dozens of lives. Instead, the article makes it sound as though New Life had sunk into total chaos during the Murray rampage, detailing how members retrieved their guns from cars or tried to wrest them from Murray, supposedly confusing police and making things “stressful.”

The response at the security workshop? Each church should come up with a “hazard plan,” including so-called surveillance for firearms. “It’s important to know who’s armed in your church,” according to Sgt. Gene Enley of the Littleton police. Add this to the statement by Bill Ray of the Trinity Springs Church in Elbert County: “We can [develop a hazard plan]… but we can’t have guns in our church.”

We can’t have guns in our church. It’s important to know who’s armed.

Same old anti-gun, fearful attitude, despite Assam’s blazing bravery and showcase of what concealed weapons can do to save lives. My questions… Who will maintain the list of church members who have concealed weapons permits (CCWs)? Who will have access to this list? Will there be judgments of certain members’ “qualifications” to carry a gun, despite the fact that all CCW holders in the state have to pass stringent requirements? What will happen to those who do not self-report, especially if there is a crisis?

Some more blunt questions: Does anyone care about CCW holders’ privacy… or safety, for that matter? What is the point of concealed weapons permits if someone else knows that you are carrying? These skittish church officials probably encounter dozens of people every day with a concealed firearm, and they have no reason to know that these folks are armed. Bottom line: my concealed weapon is no one’s business but mine. It’s bad enough that the state must pass judgment on me that I’m worthy to carry a concealed weapon. My church doesn’t need to get in on this game, too.

Meg

I am a member of the group that Grover Norquist calls the "Leave Us Alone Coalition." I dislike people who think that they know better than me how to run my life. I think that the government is way too involved in citizens' everyday life, and sadly some have come to depend on it. In a nutshell, I think the government should spend more time protecting rights and sticking to functions written into the Constitution, and less time on inventing rights and creating new functions of government. Colorado is better than most, but we could easily go the wrong way, especially with some of the leadership. You'll find my hands-off approach reflected in my writings, and I have even been known to stray from the "traditional" conservative path in doing so. I promise to try to keep things interesting for you when you hear from me. --In the interest of total disclosure, I work as an engineer for the government, in an area firmly written into the Constitution: national defense. Ahh, there, I said it, so don't try to blast me as some kind of hypocrite. After all, I serve YOU as a civil servant. Do note, however, that none of my comments necessarily represent the views of my agency, the DoD or the United States Government.

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