In Board of Trustees of the School District of Fairfield County v. State of South Carolina, et al (Opinion No. 27035, August 29, 2011) the SC Supreme Court decided a case filed in its original jurisdiction to answer the question of whether a piece of legislation affecting the Fairfield County School District was constitutional.  The Board of Trustees, challenging the legitimacy of the legislation argued (1) the General Assembly did not override the Governor’s veto  of the statute in accordance with the voting provisions of the South Carolina Constitution and (2) the statute is impermissible special legislation.

The statute at issue would have stripped the power to administer the Fairfield County School District from the school board based on alleged financial mismanagement and would have placed it in the hands of a finance committee to be appointed by the Fairfield Legislative Delegation.   The statute passed the General Assembly, but was vetoed by the governor.  In response, the legislature took up a vote to override that veto. The House of Representatives voted to override the Governor’s veto by a vote of 33 to 10.  At the time of the vote, a quorum (or majority) of the House was present.  Specifically, 120 representatives were present for roll call, although only 43 representatives voted on the matter.

In the Senate, however, the body voted 1-0 to override the veto.  On that day, although a quorum of the Senate was present, only Fairfield County Senator Creighton Coleman voted.  The 1 to 0 vote was in accordance with a purported “long-held precedent in the Senate where members do not vote on legislation affecting solely one county, also known as local legislation.”

The school board filed a complaint against the State in circuit court challenging the constitutionality of the statute.  The circuit court granted the Board a temporary restraining order.  The General Assembly then moved to intervene, after which the Board and the State jointly petitioned the Supreme Court to take the case in its original jurisdiction, which it did.

The state’s constitution provides, regarding a vote to override a governor’s veto: “if after such reconsideration two-thirds of that house shall agree to pass it, it shall be sent, together with the objections, to the other house, by which it shall be reconsidered, and if approved by two-thirds of that house it shall have the same effect as if it had been signed by the Governor.”

After examining earlier precedent, the majority of the court concluded that two-thirds of a quorum was necessary to override a governor’s veto.  The court recognized that recent practice in both houses of the legislature allowed some number less than two-thirds of a quorum to override, using the practice of counting those “present and voting,” rather than a quorum of the body, but the court concluded that practice was not consistent with the state’s constitution.

So, the court concluded that the constitution requires two-thirds of a quorum.  Assuming full membership, the minimum quorum in the House of Representatives is 63 and the minimum quorum in the Senate is 24; two-thirds of those numbers would be 42 Representatives and 16 Senators, respectively.  Here, a quorum was present in each house.  The court held the veto override votes of 33 to 10 in the House of Representatives and 1 to 0 in the Senate fell short of the constitutionally mandated two-thirds requirement.  Accordingly, the Governor’s veto was sustained.  The court did not need to reach the special legislation challenge.

Chief Justice Toal dissented, saying that the majority failed to follow “our long-standing precedent requiring the affirmative vote of two-thirds of the membership present and acting upon the matter, so long as a quorum is present to conduct business.”  She would have upheld the constitutionality of the legislation by affirming the veto override vote and by finding it permissible special legislation.

Following Ed’s presentation, a panel of three local industry experts, Matt Sloan(Daniel Island Company), Elizabeth Hagood (Lowcountry Open Land Trust) and Perry Wood (Wood Partners) will share their experiences from local projects and discuss the issues raised by Ed McMahon as they might impact projects and communities in the coastal South Carolina Region.
Following the program, Ed’s book,  will be for sale at the event, and Ed will be available for book signing.
Registration begins at 5:00 pm and the program will begin at 5:30.

Cricket Cove sought to construct two condominium buildings containing over 200 units each in the Little River section of unincorporated Horry County. The property was located in a Resort Commercial zoning district, where construction height was unlimited, subject to parking and flight path ordinances. On July 7, 2005, Council held a special meeting and gave first reading to Ordinance 107-05 for the purpose of limiting the height of all new construction within the Little River area to sixty feet. The meeting was not advertised properly, however, and Cricket Cove did not receive notice of County Council’s actions to limit height in its zoning district.

In August, 2005, Cricket Cove submitted a sketch site plan to the county’s planning department for review and comment, which it accepted for review. At the same time, the height ordinance was referred to the Planning Commission for approval. The Commission, however, voted to recommend disapproval of the ordinance. Thereafter, Council deferred a second vote on the ordinance and referred it to Council’s Infrastructure and Regulations Committee for further deliberation.

Meanwhile, a planning department employee sent a letter to Cricket Cove stating that its sketch plan needed several modifications. After making the modifications, Cricket Cove scheduled a meeting with the employee for review of the plan. Several county representatives attended the meeting to advise Cricket Cove that the plan could not be reviewed because it contemplated new construction that would exceed sixty feet in height, but those representatives declined to put that decision in writing.

Cricket Cove filed a lawsuit in October 2005 against Horry County and the Council seeking a declaratory judgment that the County and Council had violated Ordinance 49-05, was acting upon an invalid pending ordinance (draft Ordinance 107-05), and was violating Cricket Cove’s vested right to have its plan reviewed. It also alleged the County and Council were taking its property without just compensation, violating its due process rights, and denying it equal protection under the law. Cricket Cove also sought a writ of mandamus requiring the County and Council to review its proposed plan.

In July, 2006, nine months after filing the action against the County and Council, Cricket Cove brought this lawsuit against two Council members and “Persons Unknown, being ‘JaneDoe’ [sic] And ‘Richard Roe,’” seeking damages for civil conspiracy and injunctive relief. Cricket Cove sought to prohibit these two Council members from giving orders or instructions to county employees in violation of section 4-9-660 of the South Carolina Code (1986) (which prohibits Council members from giving direction to any county official other than the administrator) and also to prohibit them from discussing outside a public forum those matters coming before Council at its meetings.

The second complaint alleged that at Council’s January 2006 meeting, the height ordinance was under review for Third Reading, and when a Council member sought to amend the draft, one of the Council member defendants asked for a recess. During the recess, certain Council members discussed the proposed ordinance outside the public forum. Upon return to the public forum, the proposed amendment was not discussed, but a vote was taken to defer Third Reading until the next scheduled Council meeting.

At the February 2006 meeting, Council adopted an amendment to the proposed ordinance that changed the height limitations to affect only the defendant Council member’s district and to exempt from the height limitations all other areas of the county. Council also adopted an amendment that had the effect of changing the height limitation for construction in that Council member’s district from 180 feet to 120 feet. During the meeting, an unscheduled recess occurred. After the recess, the other defendant Council member admitted that Council had discussed the height ordinance outside the public forum.

The complaint alleged the two Council members who were sued in their individual capacities, as well as persons unknown, engaged in a civil conspiracy to harm Cricket Cove. The complaint also sought to enjoin those Council members from giving orders to County staff in furtherance of the conspiracy and from discussing draft ordinances with other Council members outside the public forum. Cricket Cove also requested a writ of mandamus requiring one of the defendant Council members to properly advertise Council meetings.

The defendant Council members filed a motion to dismiss the complaint pursuant to Rule 12(b)(6), SCRCP, and Rule 12(b)(8), SCRCP on the grounds that the complaint failed to adequately state a cause of action, and because the same action was already pending. The circuit court dismissed this lawsuit on the basis that the first action was the same action.

The Court of Appeals, on review, noted that the second case was different in that the cause of action for civil conspiracy was not the same, and more significantly, the Council members were being sued as individuals and not in their official capacity as County Council members. As a result, the Court of Appeals reversed the circuit and ruled that the complaint did state a cause of action for civil conspiracy, at least enough to get past the pleadings stage. Interestingly, it also ruled that the other causes of action, seeking to address the defendant Council members’ actions in their official capacities, could not be maintained in this case, when they were sued as individuals, not as Council members.

In Priester v. Cromer, — S.E.2d —-, 2010 WL 2990978 (S.C. August 2, 2010), the South Carolina Supreme Court took up the question of whether Federal Motor Vehicle Safety Standard 205 (49 C.F.R. § 571.205 (1971)) preempts a state law products liability claim premised solely on a manufacturer’s choice of tempered glass for a vehicle’s side windows. Regulation 205) mandates that “[g]lazing materials for use in motor vehicles … shall conform” to the American National Standard Institute “safety code for safety glazing materials.” Courts across the country faced with this issue have struggled with the preemptive effect, if any, of Regulation 205 and have reached opposite conclusions.

In this case, two twenty-one year olds, leaving a bar in Santee, South Carolina, drove off the road in a 1997 Ford F-150, rolled the truck several times, and the passenger, in the rear seat without a safety belt, was ejected and died at the scene. The passenger’s father brought a products liability suit against Ford, alleging that Ford used inappropriate glazing materials on the windows which failed to keep his son in the vehicle and instead shattered on impact.

Ford moved for summary judgment, arguing Regulation 205, a regulation promulgated by a federal agency, the National Highway Traffic Safety Administration (NHTSA) preempted the claim. Ford asserted Regulation 205 provided car manufacturers with options of types of glass they were permitted to use, and since Ford used one of the glass options, the state law products liability suit was preempted by the regulation.

The court examined the history of the regulation and the proceedings before the NHSTA in making a decision on what kind of window glazing to require of manufacturers. Under Regulation 205, the NHSTA decided not to require auto manufacturers to use tempered glass, but to allow the choice of laminated glass, which more easily shatters on impact. Three decisions in the country have decided whether state courts can allow juries to decide that the auto manufacturer’s choice resulted in a defective product under state tort law. The Fifth Circuit in O’Hara v. General Motors, 508 F.3d 753 (5th Cir. 2007) decided that the federal regulation is best understood as a minimum safety standard and held the regulation did not preempt the plaintiff’s products liability suit, while two other courts, the West Virginia Supreme Court in Morgan v. Ford Motor Co., 680 S.E.2d 77 (W. Va. 2009) and the Court of Appeals of Tennessee in Lake v. Memphis Landsmen, LLC, 2010 WL 891867 (Tenn. Ct. App. March 15, 2010) held Regulation 205 did preempt a claim against a manufacturer in which the plaintiff alleged his vehicle was defective because Ford used tempered glass in the side window.

The South Carolina Supreme Court recognized that courts across the country are struggling over Regulation 205 and whether it preempts conflicting state law actions, but held, nonetheless, in the absence of a determination from the United States Supreme Court on this matter, Regulation 205 provided a manufacturer with permissible, legal options rather than merely providing a safety floor and, therefore, acted to preempt Appellant’s suit.
The products liability suit based on South Carolina state law, therefore, was dismissed.

The panel was moderated by Michelle Diffenderfer, with the West Palm Beach, Florida office of Lewis Longman & Walker, P.A. where her practice includes seeking consumptive use permits for local governments, Native American tribes and others.

Michelle outlined the basic differences between Western and Eastern water law and how both strains were blended in the law in Florida.

The “Western Way” is based on prior appropriation.  Water is a property right and belongs to the land owner, not the state.  The principle can be summarized as “first in time, first in right,”   and those rights date back to the first settlers.  As long as those owners are using the water for “beneficial use” the law maintains that use as long as the use lasts, to the extent of the use. What this encourages is, of course, ongoing, substantial use.  There are fights under this system around whether the use is, in fact, beneficial and whether it is ongoing.

Eastern water law has developed more recently, since water in the East has historically been more abundant than in the West.  Water is seen as a natural resource that is shared in common by riparian owners and the public.  The law in the East centers more on reasonable use of available water resources.

The law that applies in any particular jurisdiction has to do both with geography, water abundance or scarcity, and that state’s history of development.

In Florida, a “modified riparian state,” [my home state of South Carolina is a riparian rights state], water is held in trust for the benefit of its citizens.  Ownership of land does not equal ownership of water.  In Florida, the right to use is regulated by that state through regional water management districts.

Even in Florida, a “wet” state that usually receives an annual rainfall amount of 54” annually, the issue is not supply, but storage.  In earlier times, landowners drained the Everglades and built canals to get rid of water, seen by many as a natural enemy.  With dramatically increased year- round water use caused by increased development, the question is now how to save water for the months when it stops raining?   The system of consumptive use permitting (CUP) regulates the consumption of water by municipalities and industrial users. The water management districts (WMD) use minimum flow levels as a regulatory tool and have identified water as a limited resource.  These WMDs restrict new users, issue limited duration permits (5 years) and emphasize the need to conserve and look for alternative sources of water.

Scott Cole, with the Atlanta law firm of HBSS, spoke on the tri-state water litigation involving the states of Georgia, Alabama and Florida, and the US Army Corps of Engineers. Recently the presiding federal judge in that case ruled that based on his interpretation of Congressional action in 1946, the only authorized purposes for Lake Lanier are hydropower, flood control and navigation. The court gave a window of three years to obtain approval from Congress for the operational changes that are necessary to allow water from Lake Lanier to continue to be used for water supply purposes. Failing that, the operation of Buford Dam will revert to “base line” operations of the mid-1970s, which will require Georgia to stop withdrawal of water from that source, upon which much of the metropolitan Atlanta area relies.  Consequently, Georgia is being forced to assess its available resources, address gaps between the current demand and anticipated supply, and identify management practices to deal with the gap.

One traditional tool for supplying growing metropolitan areas with water from remote locations has involved transferring water from one basin to another.  In Atlanta, located in the headwaters of 5 river systems, there has been extensive use of interbasin transfers.  Recently, though, there has been much more concern over the impacts of these transfers, particularly on donor basins?  Minimum flows have been imposed to avoid damages to flora, fauna, and water quality.  Some jurisdictions, like the Great Lakes system have prohibited interbasin transfers altogether.  Others allow it, but balance the need versus the impact on donor basin.

[South Carolina has just such a system.  See, for example, S.C. Code Sec. 49-21-20: Permit required for certain transfers.

“Following the effective date of this chapter, no person shall withdraw, divert, pump, or cause directly the transfer of either five percent of the seven-day, ten-year low flow, or one million gallons or more of water a day on any day, whichever is less, from one river basin and use or discharge all or any part of the water in a different river basin unless the person shall first obtain a permit from the department. “]

Ken Ramirez, of the Austin, Texas office of Brown McCarroll, whose practice focuses on Texas water law, explained how water is allocated in Texas, a western water law state allocating rights in water use based on the principal of prior appropriation (“first in time, first in right.”). In Texas, as in other western states, water rights are a property right, so there is no need to renew permits if you are priority owner, and new water rights are practically useless. However, “new” water rights are being mined from older, abandoned rights.  If a water right is not used, it is lost, and the State is actively searching for unused rights to cancel.  As opposed to surface water, ground water in Texas is the private property of the owner. Even with regard to well water, though, ground water conservation districts have been formed that now require permits and regulate the use of ground water.

Since in Texas all surface water has been spoken for, the battle has turned to who owns effluent from sewerage treatment plants.  Does effluent belong to the municipality that treated it, or is it the water of the state, once it is discharged in the water course.  A fierce battle has been fought over the last 7-8 years over the concepts of direct and indirect reuse.  You can use and reuse all water you are allocated, as long as it is not discharged.  If it is discharged, though, there is a question of whether you can you take it out again a mile or so downstream.  Once removed and stored, is the stored water a new appropriation, or the old appropriation of the “original” water?

Water coming out of a treatment plant is pretty clean, but not potable, yet, so there have been innovations in the area of further treatment to discharge so that it can be reused as drinking water. Dallas is currently using a system of discharging the effluent, letting it run down stream for a mile, into a new wetlands area, where the water seeps through the wetlands, before storage in a reservoir for later use as potable water.

Finally, Richard Lotspeich of the Tampa Water Authority reviewed the Model Water Code, which employs a 3-prong test:  (1) a use is a reasonable beneficial use (2) that does not interfere with an existing legal use; (3) and is consistent with public interest.  The Code thus incorporates aspects of both eastern and western water laws.   The Code is administered by water management districts, using the concept of “local sources first.”  The latest amendments to the code, prefers use of water nearest of the source of use and encourages use of alternate sources, including reuse and desalinization over transfer of water from remote sources.  In Florida, with significant annual rainfall, water is harvested during the wet season and is put in reservoirs for the dry season.

In a time of climate change, then, traditional principles of water ownership, use and regulation, which vary across jurisdictions in the United States, are also changing to adapt to the demands of a growing population serviced by diminishing supplies of water.

The first program on Friday morning set the tone for the rest of the day with world-class (literally) speakers on the issue of comparative land use, eminent domain and regulatory takings across various national jurisdictions around the world.

The panel was organized around the recently published volume by the ABA press, Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights, edited and coauthored by Professor Rachelle Alterman, an Israeli lawyer and planner who teaches at Technion – Israel Institute of Technology in Haifa, Israel.  The panel was moderated by my friend and colleague, Robert Thomas, a land use and appellate lawyer based in Honolulu, Hawaii.  The panel included several of the book’s authors and leading experts on the law of eminent domain and regulatory taking as it exists in judicial systems around the world.

Professor Alterman began her remarks by pointing out that though no other country comes close to the United States in the amount of litigation, academic writing and public media generated on the issue of takings, it does not have the broadest compensation rights.  In fact, the US is generally in the middle of the pack, with Poland, Germany, Sweden, Israel, and the Netherlands offering significantly more to the landowner in compensation for taking of property by the government, with the Netherlands, interestingly, having the highest rate of compensation

Professor Bryan Schwartz, a member of the law faculty at the University of Manitoba, Canada, contrasted the treatment of real property rights under the constitutional systems in the US and Canada.  Under the Canadian legal system, property rights are not as explicitly protected in the text of the Canadian constitution or statutes, as they are in the US, though private property rights do show up in common law decisions, or judge-made law.  Canada also looks at property rights in the context of the comparative legal order; in other words, Canadian judges will examine what other countries in the world are doing and how that informs what the standards in Canada should be.  Though US Supreme Court has occasionally used this comparative legal analysis in some cases: (capital punishment for juveniles, for example) it is far less common in the US courts to look at other nations’ laws or judicial decisions.

Professor Russell Brown, a law professor at the University of Alberta, Canada, recognized that there are other bases for compensation other than constitutional bases (under the US Constitution, the Fifth Amendment) For example, international treaties like the North American Free Trade Agreement (NAFTA) may provide a basis for private property protection.  Some arbitration panel decisions under these trade agreements might actually provide a lower threshold for compensation than under the current state of the US Supreme Court’s constitutional analysis. Another source of protection is the common law of some judicial systems. In Canada, New Zealand, and the UK, that is where the action has been.

In Canada, uncompensated takings are barred, absent legislation that makes it clear that a taking is to be without compensation.  So, uncompensated takings are allowed, as long as it is transparent.  This requirement of explicitness has been an effective discouragement to taking, since it requires legislative action, though it has resulted in taking of property belonging to entities and owners who were politically unpopular. For example, Vancouver zoned a railroad property rather than expropriating it (paying for it).  He assumes this would not pass muster under the US Supreme Court’s Kelo decision.

Prof. Brown concluded by pointing out that there is also an entire body of international law, like the UN Declaration of Individual Rights, that deals with taking of private property and which is incorporated into Canadian and US law through participation in the Organization for American States (OAS).

Prof. David Callies, who teaches at the University of Hawaii School of Law (and is former chair of the ABA SLG Section) addressed takings in Asia.  In most Asian countries there is no regulatory taking, but expropriation (actual physical taking of title by the government) is a huge issue.  The question of expropriation in Asia is not whether the government can do it (it can) but the mechanics of it.  How does the government calculate compensation?  How much compensation is required by the law, or the political process? Professor Callies gave examples of situations in which threats of violence and civil unrest by those whose property is being taken in the countryside has gotten the government’s attention in Asia, and has led to compensation in those countries.  Across Asia, the kind of takings law that exists depends on the kind of legal system the country has.  If it is derivative of the UK, such as in Singapore and Malaysia, you will find links to the town and country planning system from England. In those countries, the comprehensive plan does not arise locally (as in the US) but from a national planning panel, based on a national physical plan.  Our contribution (US) was to make zoning popular, but the mechanism of implementation in Asia, largely is through a national plan.

Prof. Tom Roberts, of the Wake Forest University School of Law, also a former chair of the Section (and my real property professor) concluded by talking about perception versus reality in the US protection of private property rights.  In Europe, the impression is that we are a strong property rights country. We are a very conservative society, compared to rest of world.  In US Supreme Court decisions, though, the court has not gotten very much involved in local zoning as it affects individual property rights.  The decisional law is based on the Fifth Amendment.  Our country has no federal legislation and very little state law protecting property rights.  In fact, a local zoning law has never been found to be a taking.  The Lucas decision, for example, did find a taking under its facts, but it involved a state statute.  There have physical invasions of property (Nolan/ Dollan) and actual physical taking (Loretto) but these, again, did not involve local zoning.

A copy of the book can be purchased on the ABA website, http://www.abanet.org/abastore.

* Andy Gowder

What are exactions and impact fees, anyway, and why write about them year after year?  Frequently, local government requires developers and landowners to dedicate property or property rights or pay fees in exchange for the right to develop property in a certain way.  By doing this, the local government hopes to shift the burden that the new development might cause from the local government’s operating budget to the developer, at least for a period of time, or ameliorate a negative condition that might be caused by the development.  Or, in some cases, to get something from the landowner that the local government wants, which it would otherwise not have to opportunity “to exact.”  The US Supreme Court dealt with these issues in the Nollan case in 1987 and the Dolan case in 1994, but determining whether a local government has properly calculated an impact fee or demanded an exaction that is within its constitutional power to do is continually worked out in state courts across the country every year, as local governments struggle to make ends meet and developers seek to minimize costs and to retain as many rights through the entitlement process as possible.

The 2009 article has now been published in The Urban Lawyer, one of the leading law reviews on state and local government law, produced by the UMKC School of Law, by agreement with the ABA Section of State and Local Government Law.  I have attached the full article at the link below.

The Urban Lawyer – Exactions and Impact Fees

Welcome to the first entry of my new blog, which I have named “Grounded.”  I want to explain the title and what I expect the focus of the blog to be.

In a college commencement speech delivered earlier this summer, the visionary environmental activist and entrepreneur Paul Hawken outlined for the graduates the rather bleak state of the planet, both from an environmental and a social perspective, and why that, ironically, is presents them with an extraordinary opportunity. (click to see the speech in its entirety here).  He told them:  “There is invisible writing on the back of the diploma you will receive, and in case you didn’t bring lemon juice to decode it, I can tell you what it says: YOU ARE BRILLIANT, AND THE EARTH IS HIRING.”  As he does more fully in his most recent book, “Blessed Unrest: How the Largest Movement in the World Came into Being and Why No One Saw It Coming,” he describes how we are in this time at the culmination of a period of social activism that began with the abolition movement two hundred years ago and that there are now thousands of grass roots organizations all over the world that are addressing a variety of important issues including ”climate change, poverty, deforestation, peace, water, hunger, conservation, human rights, and more. This is the largest movement the world has ever seen.” He then encourages the students to participate in this movement. I have seen this movement and it is happening here, in the South Carolina Lowcountry, where there are hundreds of organizations that have sprung up in this place, organically, that are addressing many of the issues Paul has outlined.

Tip O’Neill said, famously, “All politics is local.”  I would take that a step further and say that most of what impacts people’s lives happens on a local level.  Whether it is how we impact the environment or treat our fellow citizens, we affect our fellow human beings and the planet first, and most importantly, in our own back yard.

Grounded is going to be about that kind of local activity in law, government and community.  It will not be parochial; the local issues involved will have national and international implications.  It will also not only be concerned about the locality in which I live and practice law, but how local government, local land use, and local social justice issues get played out throughout this country, and beyond.  Just as Paul Hawken has described the many grassroots environmental and social justice issues located in the Amazon, Africa, the Pacific Islands, Asia and Europe, as well as the United States, issues related to local government and the wise and sustainable use of land play out across national boundaries and have global implications.  The denial of voting rights resonates similarly whether it occurs in the Middle East, Africa, rural South Carolina or the boroughs of New York City.  Likewise, when I travel abroad with my family, I am struck by how often the front pages of the newspapers in Dublin, Quito, Inverness or Vancouver are occupied with zoning or other land use controversies.

Our law firm’s practice, in an exciting and satisfying way, puts us in the middle of many of these issues.  We concentrate on land use and planning law and represent clients who are developers, adjoining landowners, environmental and historic preservation advocacy groups, and local governments.  We act as corporate counsel to local government and come into contact with the wide range of political and legal issues that are worked out daily in local municipal governments across the country.  We are also involved in representing many non-governmental organizations that constitute part of the “Blessed Unrest” described by Paul Hawken.  Specifically, we have helped form and represent Lowcountry Local First, a South Carolina affiliate of BALLE (Business Alliance for a Living Local Economy) that is promoting local retailers and local agriculture in the South Carolina Lowcountry, and is part of a burgeoning movement to promote local economies and local food production and consumption worldwide.

Out of this practice, I hope to bring forward issues that are meaningful and provocative to those who will follow these discussions and participate in them.

I am looking forward to an exploration of issues of Land, Government and Community in this blog.  I hope you will enjoy following it, will engage in a conversation with me through it, and will pass it on to your friends and colleagues.

A new entry to follow soon… ag

Commencement Address to the Class of 2009, University of Portland, May 3rd, 2009 – Paul Hawken

“When I was invited to give this speech, I was asked if I could give a simple short talk that was “direct, naked, taut, honest, passionate, lean, shivering, startling, and graceful.” Boy, no pressure there.

But let’s begin with the startling part. Hey, Class of 2009: you are going to have to figure out what it means to be a human being on earth at a time when every living system is declining, and the rate of decline is accelerating. Kind of a mind-boggling situation – but not one peer-reviewed paper published in the last thirty years can refute that statement.

Basically, the earth needs a new operating system, you are the programmers, and we need it within a few decades.

This planet came with a set of operating instructions, but we seem to have misplaced them. Important rules like — don’t poison the water, soil, or air, and don’t let the earth get overcrowded, and don’t touch the thermostat — have been broken. Buckminster Fuller said that spaceship earth was so ingeniously designed that no one has a clue that we are on one, flying through the universe at a million miles per hour, with no need for seatbelts, lots of room in coach, and really good food – but all that is changing.

There is invisible writing on the back of the diploma you will receive, and in case you didn’t bring lemon juice to decode it, I can tell you what it says: YOU ARE BRILLIANT, AND THE EARTH IS HIRING.

The earth couldn’t afford to send any recruiters or limos to your school. It sent you rain, sunsets, ripe cherries, night blooming jasmine, and that unbelievably cute person you are dating. Take the hint. And here’s the deal: Forget that this task of planet-saving is not possible in the time required. Don’t be put off by people who know what is not possible. Do what needs to be done, and check to see if it was impossible only after you are done.

When asked if I am pessimistic or optimistic about the future, my answer is always the same: If you look at the science about what is happening on earth and aren’t pessimistic, you don’t understand data.

But if you meet the people who are working to restore this earth and the lives of the poor, and you aren’t optimistic, you haven’t got a pulse. What I see everywhere in the world are ordinary people willing to confront despair, power, and incalculable odds in order to restore some semblance of grace, justice, and beauty to this world. The poet Adrienne Rich wrote, “So much has been destroyed I have cast my lot with those who, age after age, perversely, with no extraordinary power, reconstitute the world.” There could be no better description.

Humanity is coalescing. It is reconstituting the world, and the action is taking place in schoolrooms, farms, jungles, villages, campuses, companies, refugee camps, deserts, fisheries, and slums.

You join a multitude of caring people. No one knows how many groups and organizations are working on the most salient issues of our day: climate change, poverty, deforestation, peace, water, hunger, conservation, human rights, and more. This is the largest movement the world has ever seen.

Rather than control, it seeks connection. Rather than dominance, it strives to disperse concentrations of power. Like Mercy Corps, it works behind the scenes and gets the job done. Large as it is, no one knows the true size of this movement. It provides hope, support, and meaning to billions of people in the world. Its clout resides in idea, not in force. It is made up of teachers, children, peasants, businesspeople, rappers, organic farmers, nuns, artists, government workers, fisherfolk, engineers, students, incorrigible writers, weeping Muslims, concerned mothers, poets, doctors without borders, grieving Christians, street musicians, the President of the United States of America, and as the writer David James Duncan would say, the Creator, the One who loves us all in such a huge way.

There is a rabbinical teaching that says if the world is ending and the Messiah arrives, first plant a tree, and then see if the story is true.

Inspiration is not garnered from the litanies of what may befall us; it resides in humanity’s willingness to restore, redress, reform, rebuild, recover, re-imagine, and reconsider. “One day you finally knew what you had to do, and began, though the voices around you kept shouting their bad advice,” is Mary Oliver’s description of moving away from the profane toward a deep sense of connectedness to the living world.

Millions of people are working on behalf of strangers, even if the evening news is usually about the death of strangers. This kindness of strangers has religious, even mythic origins, and very specific eighteenth-century roots. Abolitionists were the first people to create a national and global movement to defend the rights of those they did not know. Until that time, no group had filed a grievance except on behalf of itself. The founders of this movement were largely unknown – Granville Clark, Thomas Clarkson, Josiah Wedgwood – and their goal was ridiculous on the face of it: at that time three out of four people in the world were enslaved. Enslaving each other was what human beings had done for ages. And the abolitionist movement was greeted with incredulity. Conservative spokesmen ridiculed the abolitionists as liberals, progressives, do-gooders, meddlers, and activists. They were told they would ruin the economy and drive England into poverty. But for the first time in history a group of people organized themselves to help people they would never know, from whom they would never receive direct or indirect benefit. And today tens of millions of people do this every day. It is called the world of non-profits, civil society, schools, social entrepreneurship, and non-governmental organizations, of companies who place social and environmental justice at the top of their strategic goals. The scope and scale of this effort is unparalleled in history.

The living world is not “out there” somewhere, but in your heart. What do we know about life? In the words of biologist Janine Benyus, life creates the conditions that are conducive to life. I can think of no better motto for a future economy. We have tens of thousands of abandoned homes without people and tens of thousands of abandoned people without homes. We have failed bankers advising failed regulators on how to save failed assets. Think about this: we are the only species on this planet without full employment. Brilliant. We have an economy that tells us that it is cheaper to destroy earth in real time than to renew, restore, and sustain it. You can print money to bail out a bank but you can’t print life to bail out a planet. At present we are stealing the future, selling it in the present, and calling it gross domestic product. We can just as easily have an economy that is based on healing the future instead of stealing it.

We can either create assets for the future or take the assets of the future. One is called restoration and the other exploitation. And whenever we exploit the earth we exploit people and cause untold suffering. Working for the earth is not a way to get rich, it is a way to be rich.

The first living cell came into being nearly 40 million centuries ago, and its direct descendants are in all of our bloodstreams. Literally you are breathing molecules this very second that were inhaled by Moses, Mother Teresa, and Bono. We are vastly interconnected. Our fates are inseparable. We are here because the dream of every cell is to become two cells. In each of you are one quadrillion cells, 90 percent of which are not human cells. Your body is a community, and without those other microorganisms you would perish in hours. Each human cell has 400 billion molecules conducting millions of processes between trillions of atoms. The total cellular activity in one human body is staggering: one septillion actions at any one moment, a one with twenty-four zeros after it. In a millisecond, our body has undergone ten times more processes than there are stars in the universe – exactly what Charles Darwin foretold when he said science would discover that each living creature was a “little universe, formed of a host of self-propagating organisms, inconceivably minute and as numerous as the stars of heaven.”

So I have two questions for you all: First, can you feel your body?

Stop for a moment. Feel your body. One septillion activities going on simultaneously, and your body does this so well you are free to ignore it, and wonder instead when this speech will end. Second

question: who is in charge of your body? Who is managing those molecules? Hopefully not a political party. Life is creating the conditions that are conducive to life inside you, just as in all of nature. What I want you to imagine is that collectively humanity is evincing a deep innate wisdom in coming together to heal the wounds and insults of the past.

Ralph Waldo Emerson once asked what we would do if the stars only came out once every thousand years. No one would sleep that night, of course. The world would become religious overnight. We would be ecstatic, delirious, made rapturous by the glory of God. Instead the stars come out every night, and we watch television.

This extraordinary time when we are globally aware of each other and the multiple dangers that threaten civilization has never happened, not in a thousand years, not in ten thousand years. Each of us is as complex and beautiful as all the stars in the universe. We have done great things and we have gone way off course in terms of honoring creation. You are graduating to the most amazing, challenging, stupefying challenge ever bequested to any generation. The generations before you failed. They didn’t stay up all night. They got distracted and lost sight of the fact that life is a miracle every moment of your existence. Nature beckons you to be on her side. You couldn’t ask for a better boss. The most unrealistic person in the world is the cynic, not the dreamer. Hopefulness only makes sense when it doesn’t make sense to be hopeful. This is your century. Take it and run as if your life depends on it.”

– Paul Hawken is a renowned entrepreneur, visionary environmental activist, and author of many books, most recently Blessed Unrest: How the Largest Movement in the World Came into Being and Why No One Saw It Coming. He was presented with an honorary doctorate of humane letters by University president Father Bill Beauchamp, C.S.C., in May, when he delivered this superb speech. Our thanks especially to Erica Linson for her help making that moment possible.

“If we have no peace, it is because we have forgotten that we belong to each other.” – Mother Teresa

“Object to violence because when it appears to do good, the good is only temporary; the evil it does is permanent.” ~ Mohandas K. Gandhi It’s never too late to become the person you might have been.” – George Elliot

“A hundred years from now it will not matter what my bank account was, the sort of house I lived in, or the kind of car I drove.. .but the world may be different because I was important in the life of a child.” – Forest E. Witcraft