06/14/2005: "Bill's First Two Columns (As a Guest Columnist)"

Global Weapons of Mass Pollution
Gordy Peterson's recent Column, WEAPONS OF MASS POLLUTION, tells it like it is: we here on the San Juan Islands are downstream of a spume of toxic pollution from Victoria. And we have every right to be concerned. But Victoria's complacency at the problems we are suffering is merely a mirror in which our own images reflect. The greenhouse gases that we of the United States (the biggest worldwide contributor per capita of greenhouse gases) spew into the atmosphere are themselves weapons of mass pollution. But rather than being limited to polluting Puget Sound – as is Victoria's pollution – greenhouse gases appear to be changing the climate of the world right now.

Skeptical about the dangers? Global warming is easy to pooh-pooh, because the cause-and-effect cycle is spread out over decades rather than hours or days. Genetically, humans are programmed to understand causes which have immediate effects: poke a sleeping lion with a sharp stick, or eat a poison berry, and (if you survive) you will quickly learn not to do that again. But we don't do so well when the negative consequences don't arrive for decades. And of course, the world's climate is complex: who is to say that current warming is part of a natural trend that would happen anyway?

In fact, most scientists acknowledge that we are now in the throes of global warming to which we humans are contributing. "In legitimate scientific circles, it is virtually impossible to find evidence of disagreement over the fundamentals of global warming… [A] study of … more than nine hundred articles on climate change published in refereed journals between 1993 and 2003 … found that 75% endorsed the view that anthropogenic [that is, human-caused] emissions were responsible for at least some of the observed warming of the past fifty years. The remaining 25%, which dealt with questions of methodology or climate history, took no position on current conditions. Not a single article disputed the premise that anthropogenic [human-caused] warming is under way." "The Climate of Man – III", by Elizabeth Kolbert, The New Yorker, May 9, 2005.

And what are the predicted consequences? As summarized by Ms. Kolbert in her article, "Barely a month passes without a new finding on the dangers posed by rising C02 levels – to the polar ice cap, to the survival of the world's coral reefs, to the continued existence of low-lying nations." And of course, on a more local level, to the continued existence of many salmon runs, which depend on water flows from a winter snow pack that will no longer exist – and to the continued existence of the Orcas which rely in part on salmon for their existence. In addition, we have all read that global warming is forecast to create, not merely warmer weather, but more weather extremes.

Of course, it is possible to find opposing views. Witness for instance the fiction book State of Fear, by Michael Crichton. Not meaning to ruin the plot for you, the author invents a band of environmental extremist whackos who, amidst a whirl of murders and intrigue, plot to create artificial catastrophes which they can blame on global warming. The bad-guy extremists are headed off at the end by the "good guys" – the ones who now understand as "truth" this fiction book's premise that global warming and its predicted dire consequences are mere hype.

Although a fiction book, it comes across as more than that, since it has footnotes citing real studies, by which the author purports to present a "fair and balanced" explanation of the support [well, in Crichton's view the lack of support] for the premise that humans are causing worrisome levels of global warming. Reading the book is like listening to a trial where one side doesn't appear: even in the footnotes, you read only one side of the story.

In an Author's Message at the end of the book, Crichton suggests that "[b]efore making expensive policy decisions on the basis of climate models, I think it reasonable to require that those models predict future temperatures accurately for a period of ten years. Twenty would be better." He asks, in other words, for certainty. But seeking certainty is a fool's path.

Remember that nursery rhyme, "The House that Jack Built"? Imagine you're Jack, and you find you've built yourself a house on a thick vein of coal. So you put in a coal furnace. The coal being free, you chip away at it, and for a long time, you have no worries: you get free heat. But then one day, you've removed enough coal that you begin to wonder whether your house will be stable if you remove any more. So you hire an expert for an opinion: "If I remove any more coal, will I endanger my house?" What if the expert said "there is a five percent chance that if you remove another bucket of coal, your house will fall down" -- would you fill that bucket with coal anyway? What if the expert said the risk was ten percent? Twenty percent? Surely you wouldn't take a fifty percent risk? Would you require certainty? No way – long before you removed so much coal that removing any more would be certain to destroy your house, the increasing level of risk would have stopped you. Whether we're talking destruction of your house or the balance of the world's eco-system, the question isn't just the probability of the consequence, but also, how much will we hate it if it happens.

We have every right to be angry at Victoria for sending pollution our way. But we also have good reason to be concerned about the impact of our pollution on the world's climate. A global weapon of mass pollution indeed.

Protecting Your Right To Die
As everyone who reads a paper or watches the national news now knows, in 1990 a woman named Terri Schiavo suffered brain damage when her heart stopped briefly from a chemical imbalance. Since that time, she has been in a persistent vegetative state while her husband and her parents have battled in Court – and no doubt in person – about whether or not she should be disconnected from the tube sustaining her body with food and water.

In his poem Mending Wall, Robert Frost said that "Good fences make good neighbors." That isn't true only of the stone wall which Frost's old farmer was repairing; it is equally true in a less literal sense of legal barriers. In the Terri Schiavo case, the nation has seen the daily unfolding of a tragedy: the shell of a woman in a persistent vegetative state, kept on life support against what we are told were her wishes; her husband and her parents, who should have been united in grief now bitter enemies. And all for the lack of one simple piece of paper: a living will – or, as it is called in this state – a health care directive.

In a health care directive, one expresses how one wants to be treated if ever diagnosed by one's attending physician to be in a terminal condition or in a permanent unconscious condition, where the application of life sustaining treatment would serve only to artificially prolong the process of one's dying. Terri Schiavo's husband states that she told him that she would not want to be kept alive artificially under such conditions. A credible statement? Although his credibility has been attacked by conservative commentators –one even referring to him as a Nazi – the facts are simple. As an attorney who does estate-planning, I have had probably hundreds of clients in my office expressing their wishes in Health Care Directives. But in my 23 years of practice as an attorney, I can recall only one client out of those hundreds who wanted to be kept "plugged in" to life support systems if in a state such as Terri Schiavo's. Almost universally, clients want to be "unplugged."

Had Terri Schiavo expressed her wishes in writing, this family tragedy would never have happened. Ms. Schiavo, or whatever was left of her, would have been disconnected from her feeding tube, and her body would have been dead and buried 15 years ago.

It is not unusual that Terri Schiavo didn't have a Health Care Directive: few young people do. And yet, we have all seen what can happen if one doesn't. The message: everyone needs to sign a Health Care Directive. Estate planners also recommend a "belt and suspenders" approach of also signing a Health Care Power of Attorney, where one officially appoints an agent to make health care decisions for you if you are unable to make them yourself. A Health Care Power of Attorney gives the holder of it the right to make medical decisions for you when you can't make them yourself, such as hiring – or firing – a physician, or having you moved home from a hospital for your last days. A Health Care Power of Attorney is particularly important for those not living in traditional relationships, such as unmarried couples living together, since the medical establishment will not recognize the rights of even a long-time life-partner to have any involvement in the health care decisions of a patient, unless those rights have been solidified in a Health Care Power of Attorney.

A Health Care Directive need not be expensive. While Health Care Powers of Attorney are more complicated and normally would require the assistance of an attorney, the first line of defense – the Health Care Directive – does not. If you don't have an attorney or want to avoid the expense of going to one, you can do a Health Care Directive yourself. The language is set out in the State of Washington's statutes at RCW 70.122.030. Your attorney can add more muscle to what the State statute provides, but if all you have is the statutorily-provided language, that is much better than nothing.

Strong interest groups are attempting to make it harder to end the life of a "Terri Schiavo"-type patient who does not have a Health Care Directive in effect. Although Ms. Schiavo's husband has prevailed in his battle to allow Ms. Schiavo to die in accordance with what he has testified were her wishes, some commentators are now suggesting that in the absence of a living will, there should be a presumption that the person wants to live. "It is life, not death, that our constitution protects," said Andy McCarthy in his March 28, 2005 article in National Review Online, entitled "PVS and the End of Life." High sounding words that unfortunately ignore the reality that under the circumstances in which Ms. Schiavo is "living" (if one can call it that), in my experience estate-planning clients when asked almost universally say they would want to be "unplugged." Some politicians are anxious to lead the battle to keep that from happening. In his March 29th Op Ed column in the New York Times, Paul Krugman reported that "Tom DeLay … believes that he's on a mission to bring a ‘biblical worldview' to American politics, and that God brought him a brain-damaged patient to help him with that mission."

As we have all seen with the Terri Schiavo case, this is important. And changes that the Schiavo case may bring to State or Federal law make it more important. People commonly put off estate-planning matters: don't let that happen to you.

And finally, even a Health Care Directive or a Health Care Power of Attorney, once fully executed, won't do you any good if it's locked away in your safety deposit box and no one else knows it's there. Make sure that you've given a copy of it to your medical provider and to your parents, children and the other important people in your life who might be called upon to make a difficult decision.