What Does Proposition 8 Have To Do With Zero Waste?

By John Moore, Henn, Etzel and Moore
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

By John Moore, NCRA Attorney, Henn, Etzel & Moore
Last month the Supreme Court issued 2 decisions which, in tandem, confirm that it is unconstitutional to discriminate against same sex marriage. Regardless of one’s personal opinion about the outcome, it remains clear that the Court again exercised “result oriented jurisprudence”, like it did in the infamous Bush v. Gore case. This article is a cautionary tale in which I summarize several prominent Supreme Court cases where the result was more the focus than the reason – because one always can rationalize their own decision. In the wrong case and in the wrong hands, zero waste principles could be put at risk.

Imagine a future when the voters of a state decide, by initiative, to enact a law banning all landfill discards. Next, say there was a legal challenge to the law in federal court by the wasters and the government of the state adopting the law declined to defend it on constitutional grounds. Could zero waste advocates step in to defend the law? Under the Prop 8 case holding (Hollingsworth v. Perry), the zero wasters would lack standing to defend the case. Under the companion court case finding DOMA to be unconstitutional (United States v. Windsor), standing would exist for third party defenders according to the 5 member majority of the Court. Which is it?

The Prop 8 and DOMA cases came to the Court in almost identical posture: A law was passed. Someone claimed harm due to the passing of the law and sued in federal court on federal constitutional grounds. Then, in each case, the government enacting the law conceded it was unconstitutional and declined to defend it in court, while, at the same time, enforcing it while the case was pending. Because of this lack of vigorous defense in each case, a group proponent of the law was allowed to intervene and defend the law. In the Prop 8 case, the plaintiffs sought to declare Prop 8 unconstitutional under both the 14th Amendment of the US Constitution and a provision of the state constitution. In the DOMA case, the long-time same sex partner of a decedent challenged the IRS’ refusal to grant the survivor marital status for purposes of applying an exemption to federal estate tax. The survivor paid the tax and then brought action in federal court for a refund. In each of the two cases the legal defense was carried on by intervening parties, not the government entity sued.

In the Prop 8 case, the intervenor group was found not to have standing on any of the appeals from the trial court decision, meaning that neither the Supreme Court nor the Ninth Circuit Court of Appeals had jurisdiction over the case and could not rule on the merits. The result was that U.S. District Court Judge Vaughan Walker’s decision that Prop 8 was unconstitutional, made at the time when the state government was a party to the case, was left standing. In the DOMA case, the Court found the necessary standing in the intevenor-defendants. Since none of the justices explained why there was standing in one case but not the other, we don’t know the precise dividing line.

Many well-known cases had a “result first” flavor, starting in 1803 with Marbury v. Madison. In Marbury, a federal judge was appointed and all the legal requirements of the day to accomplish the appointment were met. The appointment came in the waning hours of the term of Federalist President John Adams. Soon after newly elected President Thomas Jefferson took over, he cancelled the appointment. While the law was clearly followed for the appointment, the Supreme Court, lead by Chief Justice John Marshall, did not overturn Jefferson’s cancellation. In his roundabout, hard-to-follow decision, Chief Justice Marshall for the Court decided it was a political issue and the Court must defer to the executive branch. Like the later Bush v. Gore case (which cites Marbury), Marbury was decided in time of crisis- there the still-emerging nation’s struggle to decide if it was a federal republic or a confederation of states.

Roe v. Wade? Roe was decided in 1973 based on precedent from a 1965 case, Griswold v. Connecticut. In Griswold, the state of Connecticut passed a law forbidding the sale of contraceptives, including to married couples. The state’s stated rationale for passing the law was a policy against “all forms of promiscuous or illicit sexual relationships.” The Court majority found the Connecticut law unconstitutional under the 14th Amendment. The 14th Amendment states that no state “shall deprive any person of life, liberty, or the pursuit of happiness without due process of law.”

The 14th Amendment was passed after the Civil War and no doubt was passed to grant full rights to former slaves and to correct the abomination that the original Constitution suborned slavery. Nothing in the history of the passage of the 14th Amendment suggests either that contraception was a concern or that the concept of “liberty” had no boundary. Yet the Court majority in Griswold found a “penumbra” (i.e. umbrella) of rights and “zones of privacy” that emanate from the concept of “liberty” and that contraception was one of them. Most telling is the majority’s statement that “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marital relationship.” Agree with that statement or not, but the reason for the decision seems more gut level than constitutionally based.

The “liberty” provision of the 14th Amendment was given quite a different spin by the 1905 Court in the decision infamous to labor unions, Lochner v. New York. New York passed a law prohibiting bakery workers from working more than 10 hours in a day or 60 hours in the week. An employer, Lochner, was criminally convicted for violating this law. The Court, in a famously pro-business era, held the law unconstitutional under the same 14th Amendment because it interfered with the “liberty” of a private employer contracting for employment with a private party in whatever manner they chose. Except as it pertained to former slaves, the 14th Amendment had nothing to do with employment relations. Was the 14th Amendment the reason for the result or was it, as the Court concluded, “Under such circumstances the freedom of master and employee to contract with each other in relations to their employment, and, in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.”

The 1st Amendment could not be more clear, “Congress shall make no law… abridging the freedom of speech or of the press.” Yet in 1919, the Court, through Justice Oliver Wendell Holmes, “thought it fit to add a few words” to it. The Court decided 3 related cases, all alleged violations of a federal Espionage Act, passed during World War I. 3 different people made public speeches and were convicted of violating that Act. One of these three was Communist party presidential candidate Eugene Debs. Debs was accused of inciting “insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States” by a public speech that promoted socialism and supported draft dodgers. So, the Court, disliking criticism of the war effort “added a few words” to the 1st Amendment to the effect: that speech can be prohibited if there is a “clear and present danger” of bringing about the “substantive evils that Congress has a right to prevent.” Later courts would disregard these “additional words” except in cases like shouting “fire” in a crowded theater.

The 2nd Amendment is arguably less clear than the First. It says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In 2010 a 5-4 majority of the Court in District of Columbia v. Heller held that a DC ban on owning handguns, including in the home for self-defense, violated the 2nd Amendment. The opinion is scholarly in a sense that a lot of history is reviewed for context and the opposition arguments are countered. Lip service is paid to the notion that gun violence is troubling in today’s society and that the scope of the 2nd Amendment is not fully clear. But early on, Justice Alito prefaces his arguments by rephrasing the text and adding the word “Because” to the beginning of the sentence and then continuing it grammatically to mean “Because a well regulated Militia is necessary to the security of a free State,. the right of the people to keep and bear Arms shall not be infringed.”

Most recently the Court, in another 5-4 decision (with the votes following the same line as the handgun case), found a key provision of the Voting Rights Act unconstitutional because it violated the 10th Amendment’s reservation of rights to the states to govern themselves.

Part of the Voting Rights Act forbade certain southern states from changing their election laws unless they were pre-cleared to do so by the federal government. These states had long histories of asserting stubbornly that they were not obliged to follow anti-discrimination laws, citing the Tenth Amendment. While federal clearance of a state legal action certainly is “extraordinary”, the level that states were enacting Jim Crow laws to limit and intimidate minority voters mandated extraordinary measures which Congress was empowered to do by the 15th Amendment (likewise a post-Civil War amendment) Chief Justice Roberts, writing for the majority, reviewed the long history of discrimination and the legal efforts to combat “Jim Crow” laws. While couched in constitutionally scholarly language, the essence of the ruling is “times have changed and we don’t need oversight on these states any longer”. The opinion reveals the underlying sentiment. The Court describes the pre-clearance requirement as. “States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own… And despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties).”

Actions speak louder than words; in the aftermath of this case, many of the states required to pre-clear began moving forward, some within hours after the Court decision, with restrictive voting legislation such as ID requirements.

In Bush v. Gore, the constitutional question presented was whether a decision of the Florida Supreme Court ordering a recount in the presidential election violated the presidential voting requirements of Article II, Section 1. But having stated that was the issue being decided, the opinion did not again cite that provision of the Constitution. In the end the Court reversed the decision of the Florida Supreme Court, but by then it was too late for that Court to do anything further under its own laws. That perhaps the Court was ducking the central political question is reflected by its statement, “ None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.”

So Proposition 8 potentially has a lot to do with zero waste should zero waste advocacy lead to ballot box means to accomplish its goal with many well-funded opponents poised for a legal fight to the end. Of course there is no direct control by voters over the Supreme Court, the Constitution was designed that way. But the cases cited certainly illustrate how important is the selection process for Supreme Court justices. And if you rely upon that Court to redress what you consider to be a wrong that no other branch of government will grant, be careful what you wish for and watch out for Proposition 8.

Member Interview – Tomer Shapira, 07/13

I am the Zero Waste Projects Manager for the San Francisco Conservation Corps. The SFCC offers young people opportunities to develop themselves, their academic abilities and marketable job skills while addressing community needs through service work. Corpsmembers are young adults aged 18-26 who join our job training and education program and work in teams on landscaping, recycling, playground renovation and community education projects that enhance the environment of San Francisco. I have been working with the SFCC since February of 2010.

I manage the Zero Waste Pojects program for the SFCC. This includes an environmental literacy program, doing waste audits for schools and businesses, community presentations and trainings on compliance with the City of San Francisco’s 2020 Zero Waste goals. In addition, we run a business enterprise offering Zero Waste education and services for special events and venues throughout San Francisco. You will find SFCC Zero Waste crews working events almost every weekend of the year – we are a society of consumption, and waste does not stop accumulating – and so our job is never finished. As some of the crew like to say; “Trash doesn’t sleep, so neither can we.” The SFCC works events as small as a few hundred people to as large as 100,000. We work music festivals, concerts, sporting events food, wine and beer tasting events, trade shows, marathons, run/walk fundraisers, art shows, you name it.

I graduated from UC Santa Cruz as a double major in Environmental Studies and Community Studies, with a focus on sustainable development and social justice. After interning with Global Exchange in 2006, I was hired on to help manage the volunteer greening program for the San Francisco Green Festival, which led to me providing the same role nationally for all Green Festivals in the U.S. From there, I began to do contract work at large-scale events and music festivals around the country, helping design and implement volunteer greening & Zero Waste programs for the 2008 Democratic National Convention, and festivals like Rothbury Music Festival, Bonnaroo, and Outside Lands in San Francisco.

Believe it or not, I even enjoy working in Zero Waste when I am off the clock on weekends. I still like to help out my friends and colleagues with their projects. Its almost difficult for me to attend a music festival without being involved with the Zero Waste effort – I don’t know what to do with myself! Aside from that, I am an avid reader and enjoy being outdoors as much as possible.

I am inspired by creativity and the opportunity for growth. I am inspired by the natural processes of life, taking the good with the bad, and making the most of one’s situation. I also really like situations where you have to think on your feet on put out ‘fires’ on the spot. I feel like I am at my most inspired in those circumstances.

I’ve been a DJ since high school (only slowing down in the past few years as I’ve been busy with my career), and had a successful weekly radio program for 2 years during college. Also, English is my second language.

I am in love with SE Asia and really like tropical weather, beach time during the winter, and scuba diving – so I’ll go with Thailand and Indonesia for as long as possible.

Book: The Lord Of the Rings, by JRR Tolkien and Ecotopia, by Ernest Callenbach.
Meal And/Or Restaurant: Good sushi – I want to plug my favorite place, it’s called Ariake and its on Geary and 14th in San Francisco – best fish in town.
Person: Is it cheesy to say my Grandmother? She’s passed on, but still my favorite.
Recycled Product: Probably the sock monster I made out of one of my old, ill-fitting socks, when I learned how to sew.
Song, Movie Or Show: Song: Anything by Sam Cooke, Marvin Gaye, Otis Redding or Curtis Mayfield. Movie: The original Star Wars Trilogy, anything involving Ray Harryhausen, and like Jessica, I really like The Fountain. Show: Currently, Game Of Thrones and Mad Men.

Technology: The internet. Never has the ability to learn and exchange knowledge across the globe been this available and immediate to the widest population of people. I believe that encouraging computer literacy in diverse populations is an important world-wide social movement.

Time Management Technique: I start every day by creating a list of 5 things I want to accomplish on that given day. I’ve found that setting goals that are tangible is an important way for me to make sure it gets done, and builds momentum. For bigger long term projects, I try to set sub-goals that will allow me to tackle things piece by piece and still feel like I am making progress.

Member Interview – Jessica Connolly, 06/13

My title – the longest at my company, is Recycling & Environmental Awareness Program Coordinator or REAP Coordinator. Yes, I’m the REAPer, but the best kind around; I reap the people who don’t properly recycle and compost and transform them into recycling stewards. I now work at Community Housing Partnership­ of San Francisco. I have been working here since October, 2012. Previously I worked for Recology San Mateo County, Recology’s Golden Gate Disposal and Sunset Scavenger, and Planet Granite.

REAP is a training program for formerly-homeless people that live in supportive housing in San Francisco. The REAP 10-week internship that has two components: classroom time and outreach time. Each week we cover different material in class including Foundations of Environmental Literacy, Recycling & Composting, Reduce & Reuse, Toxics, Water & Energy Conservation, Green Living and Agriculture. The interns then use this material to conduct outreach and education at thei­r buildings, getting more people to participate in environmental initiatives

In a nutshell, I am responsible for developing and implementing the REAP, facilitating the classes, performing outreach and education to tenants and building staff – janitors, case managers, property managers, etc, establishing and enhancing recycling and composting programs in residential buildings, and strategizing diversion plans for new and/or renovated residential buildings.

I never thought I would be a teacher or a social worker, yet I managed to find myself in a position that is a fusion of both.

I graduated Magna Cum Laude from San Francisco State University in 2010 with a 3.9 GPA (which was a great accomplishment considering that I spent every summer from grade 7-11 in summer school because of POOR grades). Some of you know that I am an anti-plastic crusader, eliminating as much disposable plastic in my life as possible. I also enjoy talking about the efforts I’m trying to make with this process. One defining moment was when one of my interns said to me, “Jessica, I’ve gone glass.” It was validating to know that he was inspired to reduce his plastic consumption and minimize his environmental impacts as much as possible.

One of my favorite things to do is rock climb. I try to climb in the gym 2-3 days a week to keep in shape, and I try to get out onto ‘real’ rocks as much as I can when the season is right. I also love hiking—my boyfriend and I try to explore a new hiking spot once a month. I also love camping in Yosemite—namely Tuolumne—it is so beautiful in the Sierras, and I consider it my RESET button. I’m also involved in lots of art projects and learning functional skills to make myself more self-sufficient. For instance, I recently learned how to sew and have many DIY sewing projects lined up to try (and hopefully succeed).

Being in Nature inspires me the most. It helps to remind me that most things in life are bigger than myself, and that I (and we as humans) are part of a much larger system. It also motivates me to continue working on Zero Waste initiatives because as changes occur that help support the Zero Waste movement, a much larger system, in turn, is being affected.

Most people would be surprised to know that most of my work experience is not actually in the Zero Waste field. Prior to entering this industry in 2009, I was the person making your coffee. That’s right, I was a barista. I worked at an assortment of coffee shops from the largest coffee corporation in the world to independent shops. And I’ll tell you a little secret, I loved making coffee bar drinks.

If I could vacation anywhere in the world where would I go and for how long? I would rather just move to another country to be completely frank. But, for the sake of this exercise, I would love to visit India for at least three months. I like the idea of getting to know a place and immersing yourself into the local culture and traditions, so the more time I could spend on vacation, the closer I could get to that ideal.

Texas Court Sides With Franchisees On Constitutional Issue

By John Moore, Henn, Etzel and Moore
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

A federal judge in Dallas enjoined the City of Dallas from enforcing a flow control ordinance, finding that the ordinance would unconstitutionally impair the contract rights of the city’s franchised haulers.

Dallas’ flow control ordinance required its solid waste haulers to dispose of all solid waste at city-owned facilities. According to the Court’s decision, the City did not reserve the power to direct disposal in its franchise agreements.

WMI and Republic, two of the franchisees, and the NSWMA, argued successfully that the new flow control ordinance would impair the franchisees’ pre-existing contract rights for disposal at their own and other facilities.

The Court, finding that the city’s dominant purpose of the flow control ordinance was to raise revenue for the City, held that raising municipal revenue was not a significant public purpose to justify impairing private contract rights. The Court issued a preliminary injunction blocking enforcement of the ordinance until trial. The trial could yield a different outcome.

To the author’s knowledge, no private hauler in a reported California court decision has urged application of the Contracts Clause in the US Constitution to a city’s grant of an exclusive solid waste franchise. Certainly as many Bay Area cities have opted to go “exclusive” in exchange for substantial payments by the franchisee, the impact on other haulers with existing hauling contracts may likewise be unconstitutional. Read more at the NSWMA sponsored website: Fight City of Dallas Flow Control.

Member Interviews – 2011

Two interviews were submitted in 2011- Laura McKaughan and Jordan Figueiredo:

Laura McKaughan, Green Programs Manager, San Francisco Conservation Corps (SFCC)

What You Do: I began at SFCC, a non-profit job training program, in July 2006 as the Recycling Projects Manager managing 3 recycling crews and an 8000 sq ft recycling facility located in the Presidio of San Francisco. In late 2009, I worked with my employer to change my title to be Green Programs Manager, which is the position I am still in today. This new title is more descriptive of the projects I work on while still maintaining all of my previous duties including managing 5 staff members directly and 30 Corpsmembers indirectly.

I design and implement green programming such as zero waste projects and green jobs technical trainings for at-risk young people ages 18-26. Projects include but are not limited to: collecting recycling from businesses, sorting materials into 12 different materials types, providing zero waste services for special events, administering environmental literacy curriculum, organizing recycling presentations and doing waste audits and litter abatements.

Accomplishments: BA in Psychology and Creative Writing, University of Arizona, 1999 (graduated Magna Cum Laude), MBA in Environmental Entrepreneurship, New College of California (program now housed at Dominican University), 2003, SFCC Directors Award for Outstanding Service 2008, Certified Forklift Instructor 2009-2013

Activities/Interests: Rock climbing, dancing, bike riding, outdoor adventures and spending time with my family (mom, dad, step-mom, step-dad, and all the myriad of step and half brothers and sisters. I haven’t thought yet to add to the madness by having kids of my own :))

What Would People Be Surprised To Know About You: I have a secret desire to be known as a dancer.

If You Could Travel To One Place For A Week, Where Would You Go?:  The place that is coming to me now is NYC. For any place abroad, I’d like to have at least 2 weeks.

Favorite Book: Gone Tomorrow. It’s all about trash…that was too easy! It may not be the best page-turner I have ever read but I definitely reference it more than most books.

Favorite Movie: Based on the number of times I have watched it, Dirty Dancing takes the cake!

Favorite Restaurants: Beretta (SF), Gather (Berkeley), Gracias Madre (SF)

Favorite Person: My dad

Favorite Recycled Product: It’s not a recycled product but I think bagasse, made from sugar cane pulp (an agricultural byproduct), is pretty awesome for food service ware.

If You Could Invite Any Three People To Dinner – Dead Or Alive, Who Would You Invite And Why?:  Malcolm X, John Muir and Greg Mortensen (author of book, “Three Cups of Tea”). I went back and forth about whether or not I’d rather have dinner with MLK Jr. But ultimately I think Malcolm X would bring a perspective that might push mine to the left, a gesture I think he was famous for. Plus, oddly enough, I imagine him as being funny. As for John Muir, I would love to hear the epic stories of the treks and terrain he has seen. As for Mortensen, the book he wrote was all about the work he has done building schools for girls in Pakistan. I think he’d have some interesting ideas about how to end the conflict in Afghanistan that are unlike anything we’re witnessing now.

Jordan Figueiredo, Environmental Technician, City Manager’s Office, City of Dublin, CA

What You Do: Responsible for Solid Waste and Recycling contract management, outreach, program development and grant writing, Clean Water (Storm Water) outreach and inspections and other environmental programs. In addition, researched and analyzed city, county, state and national policies, laws and regulations relating to: climate protection, bay-friendly landscaping, composting, energy, green building, recycling, source reduction, water efficiency/conservation and zero waste management. Work with schools on the Go Green program and have successfully written grant proposals for: junk mail recycling bins for multifamily residences, recycling containers and retrofits for parks, recycling retrofits for public spaces and a bring your own bag campaign.

BA in Sociology with a Minor in Business Administration from California State University East Bay. Masters of Public Administration with emphasis in Public Policy from California State University East Bay. Leadership in Sustainability and Environmental Management Certificate from University California at Berkeley Extension (expected Feb 2011). Board Member, Municipal Management Association of Northern California (MMANC) – 2011 Membership Director, 2010 East Bay Region Co-Chair

Married my lovely wife Ellie last May in Maui, and we have a three month old named Evan. Movies, baseball games, football games, basketball games, UC Berkeley sports, going on walks with my family, traveling, continuing my never-ending education (formal or informal), impressionist art, glassblowing done by someone else – tried it once and it was fun but wow it was hot!

What Would People Be Surprised To Know About You?:
I love baseball and I have been to 32 major league parks.

If You Could Travel To One Place For A Week, Where Would You Go?:
Greece, I have never been and I can’t wait to go. Athens, Santorini, the Acropolis, the Parthenon, Gyro’s, Baklava…..

Favorite Book:
Hot, Flat and Crowded by Thomas Friedman. He said it clear and simple “We need a green revolution.”

Favorite Movie:
Any Jason Bourne movie. I’m a sucker for international spy movies.

Favorite Restaurant:
Olive Garden, it’s simple but the pizza, pasta and breadsticks are soooo good.

Favorite Person:
Right now it’s my 3 month old son. He doesn’t do too much yet, but when he smiles and laughs it’s amazing.

Favorite Recycled Product:
Glass, any kind of recycled glass. Whether it’s a vase or bowl or cup, I love glass and recycled glass is just so beautiful and cool. Buy more recycled products and recycled glass and support our recycling markets!

If You Could Invite Any Three People To Dinner – Dead Or Alive, Who Would You Invite And Why?:
Mahatma Gandhi: How did he maintain the strength and determination to do what he did and change his society and the world?
President Obama: How does he balance it all? Domestic economy, education, health care, the environment and international affairs…..And then I would push my agenda for more support of local environmental services.
Fareed Zakaria: His pieces in Newsweek and now Time and his books are so insightful and accessible to someone like myself, who is clearly not a wonk.
Questions for all three: How do we get to a sustainable society today? (socially, environmentally, economically) What can be done at the local level to support this, whether you are in public service or not?