Chopping Down Trees Creates Legal Liability

Washington (GGM) Analysis | December 16, 2020 by Attorney Michael Wells, PodcastLegal Fact and Fiction

Trees provide everything from oxygen to habitats for animals, yet they are chopped down with impunity. The damage to the environment is incalculable. To put it into perspective, however, half the number of trees exist now than those in existence when humans first evolved; fifteen billion trees are cut down annually; and ten percent of climate change is attributable to chopping down trees. Environmental carnage aside, legal liability and criminal liability exist for cutting down trees that do not belong to the harvester.

The legal terms most closely associated with cutting down and removing trees that do not belong to the harvester are “timber trespass” (mistakenly harvesting trees from another’s property) and “timber theft” (stealing trees from someone’s property). Timber trespass deals more with the civil end whereas timber theft can involve civil and criminal penalties. It varies from state to state. Nevertheless, lawsuits are filed for large sums of money over taking timber that does not belong to the harvester. 

In South Carolina, as of 2016 one-hundred cases per year are investigated and pursued with a value of between $500,000 and $600,000. A man in North Carolina illegally cut timber near Asheville, the value of the trees owned by a conservancy assessed at $1,000, but the mill rights to the timber of $25,000-$30,000. 

Illegal tree harvesting tends to be less of a problem in North Carolina, which has a larger population, than it is in Maine, which has a smaller population and vast swaths of uninhabited forests. Maine has over one-thousand complaints of timber theft each year.

The damage to the environment cannot be separated from the legal issues that arise from stealing trees, which are property, but they are far more than that to every living thing. In the most basic sense, illegal harvest of trees contributes to the problem of deforestation:

Over half the world’s land-based plants and animals live in forests, and three quarters of the world’s birds live in and around forests. It does not take a science PhD or intricate knowledge of environmental science or ecology to understand that the more trees that are cut, the more environmental problems that will follow.  

And it is a problem all over the world from the rainforests in South America to the United States to even Ireland:

All of it is interconnected, and every time a tree is cut down (regardless if it is replaced), the owner of the tree is impacted as is the rest of the planet. While planting new trees can certainly mitigate the problem, it cannot recapture what is lost every time a tree is cut down. Sadly, the only way to stop harvesting of trees may be filing lawsuits because people and corporations tend to respond the most when their money is on the line. 

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Single-Use Plastic Bags MUST Go

Washington (GGM) Analysis | November 19, 2020 by Attorney Michael Wells, PodcastLegal Fact and Fiction

With the world in the grip of a pandemic, everyone wants something to make life less troublesome. Plastic bags make carrying things much easier. More items can be carried, which means you can avoid going back to your car in the rain or marching through the snow to retrieve that one last item. If only it were so simple. If only we did not have to worry about the environment.

On March 1, 2020, New York state’s ban on plastic bags became law. This means any entity authorized to collect sales taxes cannot distribute plastic bags. Failure to follow this law subjects the entity to up to a fine of up to five-hundred dollars per incident. The State of New York created the ban for good reason. Prior to the ban, New York State produced on average twenty-three billion bags per year, which filled already overflowing landfills, snagged recycling sorters, and wreaked havoc with birds to name just a few problems.

New York is not the only state that passed such a ban. Eight other states (California, Connecticut, Delaware, Hawaii, Maine, Oregon and Vermont) have passed similar laws.

Of course, not all states have such rules, and these states still produce millions of plastic bags. It does raise the question: can lawsuits force other states to ban plastic bags?

Maybe. It is probably a state by state process unless Congress passes a statute under, for example, the Interstate Commerce Clause, that says plastic bags somehow affect interstate commerce. That may sound far fetched, but it is not. The Interstate Commerce Clause allowed Congress to pass much of the civil rights legislation, and it is quite a big stick to bludgeon states into submission. Whether Congress wants to take this up remains doubtful. 

In states that have the plastic bans, the bans are not absolute. New York has some restrictions. Most notably restaurants that offer takeout food, which in the age of COVID-19, can create many plastic bags, are exempt. Although it is likely not “an exception that swallows the rule,” this limitation still creates a problem when so many more people are getting takeout and likely will for the foreseeable future as virus numbers explode. 

But what about other plastic or rubber?

Rubber glove use during the pandemic harms the environment, and there is no end in sight. While banning plastic bags everywhere will help, it will not solve all issues. It should still be done, however. 

More needs to be done because bags are not the only problem:

While plastic bags certainly make things easier to carry, their burdens to the environment certainly outweigh their benefits. The extent to which lawsuits or Congressional action will limit their use remains unknown. People should count on neither. It really is about personal choices, which must also be made with respect to other items people use. Over time it can all add up to pollution, death, and, as we have seen with COVID-19, a pandemic.

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