Environmental Law Prof Blog

New Method to Address Corruption in Developing Countries?

Corruption and poor governance are generally recognized as a key obstacle to achieving the Millennium Development Goals, ecological sustainability, social equity, and economic development as well as realizing human rights in many developing countries.  The problem has been that the weapons that the United States and other governments have used against corrupt leaders who plunder their countries' resources and violate their citizens'  human rights were relatively blunt: military invasion, assassination, promotion of coup d'etat, suspension of trade and aid, etc.  But yesterday a French judge opened a judicial investigation about corruption of three African leaders.  So another, more nuanced weapon has been added to our collective arsenal. 

Meanwhile, the Europeans aren't just taking African leaders to task.  Spain is also investigating lawyers and others from the Bush administration regarding their roles in approving torture tactics against alleged terrorist suspects.  Certainly we all know that the leaders of developing countries have no monopoly on corruption or human rights violations!

As posted in Intl Law Girls,

A French NGO has caught an investigator's attention with its complaint about excessive spending by 3 African leaders -- all 3 of whom, it should be noted, hail from countries whose people are said to suffer from human rights violations.

Reuters reports from Paris that a French juge d'instruction has opened an investigation into whether assets held by the Presidents of 3 oil-rich African countries came to them by way of public corruption.

Proceedings could extend to many posh holdings; specifically, in the case of:
► Teodoro Obiang Nguema, Equatorial Guinea's President since 1979, and family: At least 1 property, 1 bank account, and more than 4 million euros worth of luxury vehicles. Among them is the Rolls-Royce Phantom limousine depicted above, said to have been bought by Obiang's son. (photo credit) Obiang has been dubbed among the few "African despots who make Robert Mugabe seem stable and benign" by The Independent of London.

► Omar Bongo, President of Gabon since 1967, and family: 39 properties, 70 bank accounts, and nearly 1.5 million euros worth of luxury vehicles. In January Bongo, the world's longest-serving ruler, was publicly criticized by members of the U.S. Congress for having arrested and otherwise harassed members of civil society who campaign against public corruption.
► Denis Sassou-Nguesso, since 1979 the President of the Republic of Congo (commonly called Congo-Brazzaville to distinguish it from the neighboring state whose capital is Kinshasa, the Democratic Republic of Congo): 24 properties, 112 bank accounts, and more than 172,000 euros worth of luxury vehicles. In Sassou-Nguesso's country, slavery of 1 ethnic group by another is reported to persist.

Judge Françoise Desset decided to open the criminal-finance investigation in what's known in France as l'affaire BMA -- for "biens mal acquis," or "ill-gotten goods" -- based on a partie civile complaint filed in December by a Gabon citizen and Transparence International France, the French chapter of the global nongovernmental organization devoted to fighting public corruption, Transparency International (prior post). Judge Desset made her decision against the advice of the public prosecutor's office. The prosecution, which had declined to act on a inventory of the assets made by French police in 2007, may appeal her decision.

Despite the risk of upset on appeal, the attorney representing the parties civiles, William Bourdon, lauded Desset's initiative:

'This is a decision without precedent, because it is the first time that a judicial investigation has been opened concerning the alleged misappropriation of public funds by incumbent heads of state. From now on it is possible to identify and pursue those who, repeatedly and deceitfully, impoverish their own countries.'

It also suggests a Capone-precedent path to pursuit of leaders who fail to protect the human rights of their own people.

Total emisions approach - accurate but not novel and a flawed basis for policy

As this report on the new studies published in Nature indicates, the global warming problem is and always has been understood to be a matter of the total loadings of GHG emissions in the atmosphere, not a matter of timing.  The timing of the GHG emissions only matters over the course of centuries because eventually greenhouse gases emitted into the atmosphere decompose.  I don't think that anyone familiar with climate policy has ever believed otherwise.  So, on that score the new studies are not new, but they may alter how the problem is conceptualized for policy purposes.

Policy cannot simply divide the total allowable emissions among nations and be done with it.  First, absent intermediate goals tied to deadlines, countries cannot monitor each others compliance with reduction targets.  Second, it creates a tendency for nations to believe that they can just wait until 2050 or whatever when technology will save them and voila they will become carbon neutral.  Our experience in the Clean Air Act attainment with NAAQS was that, faced with a deadline and no requirement for annual progress, states just planned to do something at the last moment and when their plans didn't work, they threw up their hands and said, "OH well." 

We cannot afford to use that model of regulation with respect to climate.  Instead, we need to use technology-forcing technology based standards (e.g. no new coal plants without CSS; CSS retrofit for existing fossil-fuel plants by 2020) along with streamlining the ability of renewables to come online and planning ala the 1990 Clean Air Act amendments with annual progress requirements and contingency measures built into the plan.  Those approaches would be far more successful than the "consume up to the last moment" strategy that may be encouraged by the total emissions approach.

Lawyers have to leave science to the scientists and use extreme care when they are working on a cross-disciplinary basis.  But scientists need to be just as wary of providing policy concepts unencumbered by an understanding of past performance of various regulatory approaches.

From: Naomi Antony, Science and Development Network
Published April 30, 2009 10:40 AM
Scientists put carbon ceiling at a trillion tonnes

Scientists hope a new approach to assessing carbon build-up in the atmosphere will simplify issues
for policymakers and economists. Two papers published in Nature today (29 April) show that the
timings of carbon emissions are not relevant to the debate — it is the total amount of carbon dioxide
emitted over hundreds of years that is the key issue.

Rather than basing negotiations on short-term goals such as emission rates by a given year,
the researchers say the atmosphere can be regarded as a tank of finite size which we must not
overfill if we want to avoid a dangerous temperature rise.

Climate policy has traditionally concentrated on cutting emission rates by a given year, such as
2020 or 2050, without placing these goals within the overall context of needing to limit cumulative
emissions.

Both papers analyse how the world can keep the rise in average surface temperatures
down to no more than two degrees Celsius above pre-industrial levels. This figure is
widely regarded as the threshold beyond which the risk of dangerous climate change
rapidly increases. Policymakers around the world have adopted this limit as a goal.

The first study, led by Myles Allen from the University of Oxford, UK, found that
releasing a total of one trillion tonnes of carbon dioxide into the atmosphere
between 1750 and 2500 would cause a "most likely" peak warming of two degrees
Celsius. Emissions to 2008 have already released half of this. Allen said in a
press briefing this week (27 April): "It took 250 years to burn the
first half trillion tonnes and, on current predictions, we'll burn the next half
trillion in less than 40 years."

The second study, led by Malte Meinshausen at the Potsdam Institute for Climate
Impacts Research, Germany, used a computer model to demonstrate that to avoid
exceeding two degrees Celsius by 2100, cumulative carbon emissions must not exceed
0.9 trillion tonnes. "We have already emitted a third of a trillion in just the past nine years,"
Meinshausen says.

David Frame, a co-author of the Allen paper and researcher at the University of
Oxford, said that these findings make the problem "simpler" than it's often
portrayed. "[The findings] treat these emissions ... as an exhaustible resource. For
economists, this way of looking at the problem will be a huge simplification," Frame
said. "Basically, if you burn a tonne of carbon today, then you can't burn it tomorrow
" you've got a finite stock. It's like a tank that's emptying far too fast
for comfort. If country A burns it, country B can't. It forces everyone to consider
the problem as a whole."

In a separate essay, Stephen Schneider of the Woods Institute for the Environment at
Stanford University in the United States, discusses what a world with 1,000 parts
per million of carbon dioxide in its atmosphere might look like.

This article is reproduced with kind permission of the
Science and Development Network (SciDev.Net).
For more news and articles, visit www.scidev.net.

Nature Abstract of Allen letter:

WHO update May 3

May 3

Confirmed cases
Austria: 1
Canada: 70
Costa Rica: 1
Denmark: 1
France: 2
Germany: 6
Hong Kong: 1
Ireland: 1
Israel: 3
Mexico: 506 and 19 deaths
Netherlands: 1
New Zealand: 4
South Korea: 1
Spain: 13
Switzerland: 1
U.K.: 15
U.S.: 226 and 1 death

Jurist Op-Ed by Ed Richards about Adequacy of Existing Public Health Laws

Fighting H1N1: Why Laws are Not the Answer    Jurist link

JURIST Guest Columnist Ed Richards of Louisiana State University Law Center says that in the midst of current concerns about the spread of the H1N1 virus (popularly known as "swine flu"), passing more and stricter public health laws will neither strengthen the public health system nor effectively contain the spread of disease...

---

As this is being written, H1N1 is not a major threat, but this could change as the epidemic evolves. I want to look past the H1N1 outbreak and focus attention on what we will carry away from it, however it evolves. I am concerned because crisis-driven policy is easy to hijack, resulting in laws with horrible unintended consequences. Over the past four decades, public health crises have generated more than their share of bad laws. Some only create false expectations, but others have lead to great suffering and even death. I hope forewarned is forearmed for H1N1.

Do We Need More Law?

It is not law per se that I worry about. I am quite supportive of public health law as expressed through administrative regulations and the broad exercise of the police powers. While public health depends primarily on voluntary cooperation, state public health agencies and the federal government have tremendous powers to deal with a public health crisis. The United States entered the 1970s with a public health system that had nearly tripled life expectancy over the past 100 years through sanitation, which had nearly wiped out the worst of the communicable diseases in the U.S., and which was immunizing a sizable part of the population against seasonal flu. All this, including the quarantine of individuals and whole regions, had been managed through general grants of legislative power and administrative regulations. This framework has not been declared unconstitutional and as classic administrative law, there is no reason to think the United States Supreme Court would stop deferring to agency action in public health when it supports agency deference in all other areas of administrative law.

The Interest Groups

What I worry about are statutes, i.e., specific public health policies passed into statutes to please interest groups. From quarantining people who are coughing to taxing fat people, pushing for public health statutes has become the rage at the CDC, federal and state legislatures, and private foundations. These are driven by traditional interest groups, such as employers worried about health care costs, drug companies, military contractors who want to sell bioterrorism monitors, and federal officials in recent administrations who wanted to extend the national security state.

The last decade has seen a new interest group arise: contract researchers operating out of universities who live on grant funds to write new laws. No matter the problem, their solution is a new law, because they make no money if they admit that the problem is just that public health agencies do not have the staff to do a job because they are broke, or that there is no problem at all. Expect to see these groups calling for massive new public health powers to deal with H1N1, claiming that public health agencies and the federal government lack key powers. As noted below, public health emergencies are fully integrated into our national security laws, allowing the federal government essentially unlimited powers if it chooses to use them. Perhaps the only real limit is that since President Obama repudiated the torture memos, the torture of potential disease carriers is now off limits.

Untended Consequences - The Road to Hell

Concerns with the public health consequences of illegal drug use in the 1960s led to Nixon's war on drugs and Rockefeller's draconian drug laws, which spread across the United States. These laws have had profound unintended consequences and seem to slip the mind of public health law scholars who tout the value of new public health statutes. In the 1980s, civil libertarians lobbied state legislatures and Congress to protect persons with AIDS. The result was to make it nearly impossible to do public health screening and case finding for HIV infection. This exacerbated the AIDS epidemic and was only reversed as a matter of federal policy in 2006. Many states still have laws in place that limit disease control efforts for HIV. (In several states, the entire disease control code was revised, undermining the control of tuberculosis and other diseases. These laws had to be revised again as tuberculosis surged in the 1990s.)

Post 9/11 and the anthrax letters, fears of bioterrorism lead the CDC to develop the Model State Emergency Health Powers Act and push states to adopt it. This was criticized by many public law scholars for being a dangerous intrusion into civil liberties and probably also unworkable. More fundamentally, if you are versed in national security law, you know that the push for public health emergency powers laws at the state and federal level were derived from the Bush/Cheney vision of the seamless national security state. Taken with the Patriot Act and other national security laws, public health and safety emergencies have been recharacterized as national security threats, which creates paths for the use of the military in domestic policing and the overruling of state public health authority by the federal government.

The real problem with all of these laws is that the problems they address are not problems of legal authority. They do nothing to address the loss of resources and expertise from health departments, and the weakness of political leaders when facing difficult choices. We have created a system of Potemkin laws whose real purpose is to allow legislatures to claim to have done something about public health emergencies without spending the money or political capital to address the weakness in the public health and medical care system. Look how well these laws worked for Hurricane Katrina. Louisiana had passed stacks of emergency powers laws after 9/11, had done all the federal planning exercises, yet was completely unprepared for Hurricane Katrina because that would have required spending money and admitting that New Orleans could flood. Yet Katrina spawned another deluge of federal and state emergency powers laws, passed as states continued to cut their already inadequate health department budgets.

What We Did Not Learn From SARS

The most recent failure, and the one most on point with H1N1, was the reaction to the 2003 SARS outbreak. Canada appointed a royal commission to study and make recommendations about the lessons learned from SARS. The commission published an excellent set of reports on all aspects of the SARS epidemic and the government's response. The commission was clear: strategies such as social distancing, not going to work sick, and voluntary isolation can work only if the affected individuals are supported by the employers and the government. Individuals must have paid sick leave, worker's compensation must cover workplace acquired infection, there must be health insurance coverage for personally acquired illness, and employers and others institutions must workout the details of mandatory immunization programs with unions and workers before there is an outbreak.

The Canadians found little or no role for coercion, but a critical role for the government and employers to provide support to allow individuals to stay home without loss of income and with adequate medical care and food. The response in the United States was to pass even more quarantine laws, to provide bench books to judges on how to enforce those laws, and to encourage local law enforcement to think about their rules of engagement when enforcing quarantine - do you shoot the soccer mom fleeing with the minivan full of children?

There have been no provisions for the nearly half of workers without paid sick leave, for workers with infected family members who will lose pay if they stay home, for health care for the uninsured. The huge population of undocumented aliens and the legal and illegal underground economy have been ignored, yet we know those who participate in the underground economy are not likely to honor snow days and other social distancing strategies because they do not eat if they do not work.

What Will We Not Learn From H1N1?

The best outcome for H1N1 is that we have relatively few cases and deaths, we will develop a vaccine over the summer, we will conduct an orderly vaccination program in the fall, and H1N1 will become just one virus on the list we consider for each seasonal flu vaccine. (For perspective, remember that yearly flu outbreak results in a few million cases and 10-20,000 deaths, with no great disruption in life and the economy.) We will look back and realize that it would have been nice to have more epidemiologists in the states with cases, and the states and the federal government will increase funding and job protections for expert staff at health departments.

More likely, whatever the outcome of H1N1, the result will be more laws benefiting more interest groups and politicians' reelection campaigns, and no long-term support for the public health system.


Edward P. Richards III is Harvey A. Peltier Professor of Law at the Louisiana State University and Director of the Program in Law, Science, and Public Health.

May 02, 2009

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Comments:

I find a good deal to agree with in Prof. Richards' column, but I fear that he paints with too broad a brush.

Prof. Richards is of course correct that crises, and associated panic (of the sort promoted by the nonstop cable news outlets competing for viewers, properly lambasted on the Daily Show), tend to result in ill-considered emergency legislation (think PATRIOT Act in another context), often with unforeseen negative consequences (or carefully plotted ones for which the emergency provides a pretext: think PATRIOT Act). Often proper enforcement of pre-existing laws and regulations, coupled with adequate resources, would be far more effective in preventing or mitigating crises than emergency legislation will do in reacting to them (think banking and securities laws and regulations in our current financial meltdown).
Finally,sensitive facilitation of desirable private actions can constitute far sounder public policy than punitive and coercive measures, as Prof. Richards' comparison of Canadian and American responses nicely illustrates. So far, so good.

But I am not so convinced by other aspects of Professor Richards' catalog. Did our punitive and self-defeating war on drugs really result from, and remain in place because of, classical public health concerns--or does this reflect certain puritanical tendencies deep in American culture (think Prohibition) and the interests of the law enforcement-prison-industrial state? For many years, public health authorities have promoted a harm minimization strategy that has thus far had minimal impact on deconstructing the war on drugs (even recreational drugs posing relatively minor risks to public health)--although perhaps a moment of at least minor reform may be approaching. To be sure, the picture is not entirely uniform; the hysteria in the early days of crack cocaine, and the rush to impose severe penalties disproportinate to penalties on powder, did result in part from public health concerns, and did result in starkly different law enforcement responses on users in minority communities than for the economic elites able to afford their drugs of choice.

The AIDS example is also more complex, involving challenging conflicting approaches and priorities between medical confidentiality and protection of civil rights for those known to be afflicted. From this distance, one can reasonably argue that we did not get the balance right in real time, and that a different balance might have don e a better job of reconciling civil rights with disease prevention. But the fact that laws were eventually modified is not in itself conclusive; as scientific knowledge improved, hysteria diminished, civil rights protections were solidified (at least in some respects), the disease became more treatable, and HIV-infected individuals became less isolated and stigmatized, circumstances changed and the appropriate legal adjustments could follow--not least because the problems sought to be addressed had changed.

This highlights what I hope may be another area of potential agreement. Crises makes it easier to rush legislative changes through--including those that are ill-considered. It is often--certainly sometimes-- the case that thoughtful and well-considered legislative or regulatory approaches have been prepared in calmer times, but cannot achieve the political support or momentum necessary for enactment in the absence of a crisis. Not all law is bad, although we can probably identify some of the circumstances conducive to better, or less well considered, legislative or regulatory proposals. We need to do better in that dimension, although I am not convinced we have figured out just how to accomplish that.

We have become in increasingly aware of the global nature of many emerging health threats, and of marked disparities in the capacities of different societies to respond in open, timely, and appropriately resourced fashion. For all the difficulties in the American system of federalism and divided control over health matters, the problems at the international level are far more formidable. Whether law is the best instrument here is yet to be determined. Perhaps Professor Richards will address that aspect of the issue in a future posting; I look forward to hearing his thoughts.

Alan Jay Weisbard
Associate Professor (retired) of Law and of Medical History and Bioethics, University of Wisconsin Schools of Law and of Medicine and Public Health, and former Executive Director, NJ Bioethics Commission

May 02, 2009

Oregon H1N1 flu update - May 2nd

H1N1 influenza 4 p.m. update
__________________________________________________________________________
Cases: As of late Saturday, Oregon had identified eleven probable cases of
H1N1 influenza virus with additional specimens being tested at the Oregon State
Public Health Laboratory in Hillsboro. State public health officials expect to know
in the next few days whether any of the cases are confirmed as H1N1.
The county breakdown of the eleven probable cases is listed below:
• Lane (2)
• Marion (1)
• Multnomah (2)
• Polk (2)
• Umatilla (1)
• Wallowa (1)
• Washington (2)
“None of these 11 individuals has been hospitalized,” Mel Kohn, M.D., state
public health officer in the Oregon Department of Human Services, said today.
“However, the fact that this is a new strain of flu means we still need to be
concerned and be preparing for what may come.”

CDC Swine Flu Report - May 3rd - 226 confirmed cases, just 1 death, in 30 states

H1N1 Flu (Swine Flu)

Site last updated May 3, 2009, 11:00 AM ET

U.S. Human Cases of H1N1 Flu Infection
(As of May 3, 2009, 11:00 AM ET)

States	# of laboratory confirmed cases	Deaths
Alabama	1
Arizona	18
California	26
Colorado	4
Connecticut	2
Delaware	10
Florida	3
Illinois	3
Indiana	3
Iowa	1
Kansas	2
Kentucky*	1
Massachusetts	7
Michigan	2
Minnesota	1
Missouri	1
Nebraska	1
Nevada	1
New Hampshire	1
New Jersey	7
New Mexico	1
New York	63
Ohio	3
Rhode Island	1
South Carolina	15
Tennessee	1
Texas	40	1
Utah	1
Virginia	3
Wisconsin	3
TOTAL (30)	226 cases	1 death
International Human Cases of Swine Flu Infection See: World Health Organization *Case is resident of KY but currently hospitalized in GA.

CDC continues to take aggressive action to respond to an expanding outbreak caused by novel H1N1 flu.

CDC’s response goals are to:

1. Reduce transmission and illness severity, and
2. Provide information to help health care providers, public health officials and the public address the challenges posed by this emergency.

CDC continues to issue and update interim guidance daily in response to the rapidly evolving situation. CDC will issue updated interim guidance for clinicians on how to identify and care for people who are sick with novel H1N1 flu illness. This guidance will provide priorities for testing and treatment for novel H1N1 flu infection. The priority use for influenza antiviral drugs during this outbreak will be to treat people with severe flu illness.

On May 3, CDC is scheduled to complete deployment of 25 percent of the supplies in the Strategic National Stockpile (SNS) to all states in the continental United States. These supplies and medicines will help states and U.S. territories respond to the outbreak. In addition, the Federal Government and manufacturers have begun the process of developing a vaccine against the novel H1N1 flu virus.

Response actions are aggressive, but they may vary across states and communities depending on local circumstances. Communities, businesses, places of worship, schools and individuals can all take action to slow the spread of this outbreak. People who are sick are urged to stay home from work or school and to avoid contact with others, except to seek medical care. This action can avoid spreading illness furth