Wednesday, November 7, 2018
Does the President Really Matter to U.S. Participation in International Law? A View from the Perspective of Oceans Law
Robin Kundis Craig is the James I. Farr Presidential Endowed Professor of Law, University of Utah S.J. Quinney College of Law.
This is the third in a series of essays from the Environmental Law Collaborative on the theme: "Environmental Law. Disrupted."
How much do Presidents really matter to the United States’ participation in international environmental law?
Fairly obviously, presidential turnovers in the United States are absolutely critical to how the United States conducts its international relations. President George W. Bush’s pursuit of Middle Eastern terrorists in the wake of 9/11, including wars in Iraq and Afghanistan, represents a far different engagement with the rest of the world regarding international terrorism than President Obama’s reliance on drones and attempts to bring American troops back home. In turn, President Obama’s engagement with the rest of the world on climate change, including committing the United States to the Paris Accord, represents a radically different path than the one President Trump has thus far chosen to walk with regard to the same issue. Indeed, President Trump’s “America First” approach to international relations shows every sign of becoming one of the most presidentially-driven idiosyncratic periods in the United States’ relations with the rest of the world since at least the conclusion of World War II.
But how much does any of that matter to the United States’ participation in international environmental law?
The issue, of course, is that the United States Constitution formulates treaty-making as a two-body problem: The President signs and the Senate advises and consents. Failure of the United States to participate can occur at either stage. For example, President Clinton signed but Congress refused to ratify the 1997 Kyoto Protocol to the 1992 United Nations Framework Convention on Climate Change (to which the United States remains, at least for now, a party). Indeed, as of late August 2018, according to the U.S. Department of State, Presidents have sent 42 treaties to the U.S. Senate that still await the Senate’s advice and consent to ratification.
One of those 42 treaties is the 1982 United Nations Convention on the Law of the Sea (UNCLOS III). President Reagan refused to sign the treaty when it opened for signature while he was in office, but President Clinton signed it on July 29, 1994. It has been sitting with the Senate since October 7, 1994—that is, through Presidents Clinton, Bush II, Obama, and, so far, Trump. Clearly, the identity of the Chief Executive has not mattered much to the United States’ failure to ratify.
Perhaps perversely, however, the United States’ non-ratification and the identity of the Chief Executive also don’t seem to have mattered all that much to the treaty’s operation—including in U.S. waters. Of the 193 United Nations member states, 168 (including the European Union) have ratified this “constitution for the ocean,” which went into effect on November 16, 1994. The United States follows UNCLOS III’s jurisdictional provisions on the grounds that they are customary international law. Indeed, after refusing to sign the treaty, President Reagan first proclaimed a 200-nautical-mile Exclusive Economic Zone for the United States in March 1983, then in December 1988 added a 12-nautical-mile territorial sea —both exactly as UNCLOS III allows. All subsequent Presidents have accepted these proclamations. Finishing up, in September 1999, President Clinton proclaimed a contiguous zone for the United States out to 24 nautical miles, http://www.presidency.ucsb.edu/ws/?pid=56452—and, again, all subsequent Presidents have accepted that declaration. In addition, the United States ratified the supplemental Agreement for the Implementation of the Provisions of the Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocksin August 1996, and this treaty came into force on December 11, 2001.
The United States has perhaps been most out of step with the rest of the world with regard to rights in the seabed. In September 1945, more than a decade before the first Law of the Sea conventions opened for signature in 1958, President Harry Truman proclaimed the United States’ assertion of control over the continental shelf, a post-World War II recognition of the importance of offshore oil and gas reserves. The United States’ most prominent objection to ratifying UNCLOS III was its treatment of the deep seabed (denominated “The Area”) and its minerals as “the common heritage of mankind.” However, deep seabed mining is just now getting underway, and, so far, it is taking place only on the deeper parts of continental shelves controlled by coastal nations (gold and copper deposits off the coast of Papua New Guinea, and iron sands off the coast of New Zealand). As a result, the United States’ objection might be regarded as 40 years premature.
Even with respect to the seabed, however, the United States is beginning to behave like the rest of the world. Specifically, the United States is mapping its extended continental shelf in the Arctic Ocean in conformance with UNCLOS III—even though our non-ratification of the treaty means that we cannot submit a claim to that extended shelf to the Commission on the Limits of the Continental Shelf. Moreover, U.S. companies like Lockheed Martin prefer the legal safety of UNCLOS III when pursuing deep seabed mining; Lockheed Martin formed a U.K. subsidiary, UK Seabed Resources, so that it could receive its mining licenses from the International Seabed Authority pursuant to the treaty. Such industry preferences and the United States’ interest in the Arctic might finally induce the Senate to ratify the treaty.
Maybe. The larger point here, however, is that the United States’ relationship to UNCLOS III has been more or less the same since President Reagan, despite the fact that he did not sign the treaty and President Clinton did. Part of the reason, no doubt, is that President Eisenhower signed, and the Senate under a new President Kennedy ratified, the four 1958 United Nations Conventions on the Law of the Sea, which set forth many of the same kinds of obligations and rights as UNCLOS III. Another part, no doubt, is that the new jurisdictional provisions in UNCLOS III, and many other of its provisions, work to the United States’ advantage. But an important part of the reason is that Senate procedures and politics—not presidential inclination—have been an effective roadblock to ratification, underscoring the basic constitutional point that the United States’ assent and strict adherence to international environmental law is only partially a matter of who the President is.
Tuesday, June 4, 2013
ATA v. City of Los Angeles: Ports, Trucks and the Market Participant Exception Take a Tour of the Supreme Court
Back in mid-April I made my first visit to the Supreme Court of the United States, in order to hear oral argument in American Trucking Associations v. City of Los Angeles. I had written an amicus brief in the case, on behalf of a number of national local government associations, and was interested to see how it would go. As one prominent environmental law scholar/practitioner advised me, “There is nothing quite like seeing Justice Scalia sneer at your favorite argument.”
The case is one of an emerging category of market participant exception cases that implicate environmental law and policy. Here, ATA challenged certain aspects of the Clean Truck Program enacted by the Port of Los Angeles. The program was created to allay neighboring communities’ and environmental groups’ concerns about air pollution generated in and around the port by drayage trucks – usually old 18-wheelers at the end of their useful life that transport shipping containers from marine terminals to local railyards, truck depots, and other nodes in the intermodal transport network, for long-distance hauling. These groups had previously held up expansion of the Port through litigation and political opposition. The Port, making a business decision, decided it would be more efficient to address the air pollution than to keep fighting the communities and enviros.
The program requires trucking companies to enter into concession agreements—or contracts—with the Port, which impose a number of requirements on trucks that access port facilities. Two requirements made it through the 9th Circuit and landed before SCOTUS: one requires trucking companies to have off-street parking plans for their trucks, the other requires trucks to post a placard including a number to call to report air pollution problems. ATA’s argument is that these requirements are expressly preempted by the Federal Aviation Administration Authorization Act (which, in addition to deregulating the airline industry also addresses regulation of the trucking industry). The Port’s argument is that the requirements are not preempted because they do not have “the force and effect of law” required under the preemption provision, in large part because they fit under the market participant exception, a doctrine developed at SCOTUS under dormant Commerce Clause and implied preemption cases but never before applied to express preemption under a federal statute. At the risk of grossly oversimplifying the matter: the Port maintains that it is a landlord, operating a business, and that in order to grow its business it has to impose certain limitations on those who enter and use its property.
As you might imagine, the case is complicated. What I found most interesting about the oral argument was how straightforward the members of the Court appeared to find it. To those who spoke, the case seemed to boil down to the fact that noncompliance with the concession agreements could result in misdemeanor charges. The misdemeanor charges, however, under the terms of the Tariff that governs the Port, could only be applied to the marine terminal operator who leases space from the Port and who contracts with the trucking company, and not to the trucking company itself. The criminal penalty is not a term of the concession agreement between Port and trucking company. This fact, though, did not seem to sway the judges from their primary concern: Criminal penalties can only be enforced by the government acting as a regulator. Therefore, any concession agreement that in any way involves the threat of criminal sanction cannot be market participation.
I have two concerns about what appears to be the likely result, here. First, I think the emphasis on the criminal penalty mistakes a practical irrelevancy for a matter of theoretical or doctrinal importance. The Port’s attorney told the Court that the Port does not and would not seek criminal sanctions against a marine terminal operator for a trucking company's noncompliance with the concession agreement. Second, and perhaps more importantly, the existence of the criminal penalties is a red herring. State and local governments acting as market participants are always wielding a power different from that available to private firms, and they are always pursuing different purposes. Their contracting processes are likely to be dictated by law, rather than best practices or personal preference. Their profits are not distributed to partners or shareholders. And, of particular relevance here, government contracts are subject to the False Claims Act and its state analogs, which threaten criminal penalties.
Second, ATA’s lawsuit is a Trojan Horse. In addition to the relatively innocuous provisions at issue in the case, the Port of LA’s Clean Truck Program also includes a mandatory phase-out of old, dirty trucks. Similar phase-outs have been adopted by the Port of Seattle and the Port Authority of New York & New Jersey. The trucking association has not challenged these programs, but lawsuits directly challenging these important initiatives will almost certainly follow quickly on the heels of a decision limiting the market participant exception defense to statutory preemption. Of course, the Court can craft an opinion that avoids doing serious damage to ports’ ability to claim the exception in other circumstances unrelated to the FAAAA, such as under the Clean Air Act vehicle emissions standards provisions. Here’s hoping the Court writes with that in mind.
-- Michael Burger
Friday, July 20, 2012
In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the Chief Justice’s stated theory of the commerce power, or what precedential effect it will have under the Marks doctrine (given that his only supporters wrote in dissent). Still, the practical implications for existing governance is likely to be small, at least in the foreseeable future. After all, much of the debate over the individual mandate focused on how unprecedented it was: despite months of trying, nobody produced a satisfying example of this particular Congressional tool used in previous health, environmental, or any other kind of federal law.
By contrast, the most immediately significant portion of the ruling—and one with far more significance for most environmental governance—is the part of the decision limiting the federal spending power that authorizes Medicaid. Congress uses its spending power to persuade states to engage in programs of cooperative federalism all the time, including important environmental programs under the Clean Air Act, Coastal Zone Management Act, and others. Last month’s decision represents the first time the Court has ever invalidated a congressional act for exceeding its power under the Spending Clause, and the decision has important implications for the way that many state-federal regulatory partnerships work.
These partnerships reflect the complex way that the Constitution structures federal power, through both specific and open-ended delegations of authority. Specific congressional powers include the authority to coin money, establish post offices, and declare war. More open-ended grants of federal authority are conferred by the Commerce, Necessary and Proper, and Spending Clauses, about which we have heard so much in recent weeks. Whatever isn’t directly or reasonably indirectly covered by these delegations is considered the realm of state authority. (Of course, there is some overlap between the two, but that’s another story and a previous blog.)
The Spending Clause authorizes Congress to spend money for the general welfare. Congress can fund programs advancing specific federal responsibilities (like post offices or Naval training), but it can also fund state programs regulating beyond Congress’s specifically delegated authority (such as education or domestic violence). Sometimes, Congress just funds state programs that it likes directly. But it can also offer money conditionally—say, to any state willing to adopt a particular rule or program that Congress wants to see. In these examples, Congress is effectively saying, “here is some money, but for use only with this great program we think you should have” (say, health-insuring poor children).
In this way, the spending power enables Congress to bargain with the states for access to policymaking arenas otherwise beyond its reach. A fair amount of interjurisdictional governance takes place within such “spending power deals”—addressing matters of mixed state and federal interest in realms from environmental to public health to national security law. Federal highway funds are administered to the states through a spending deal, as are funds for public education, coastal management, child welfare, the Medicaid insurance program, and countless others.
Congress can’t just compel the states to enact its preferred policies, but spending power partnerships are premised on negotiation rather than compulsion, because states remain free to reject the federally proffered deal. If they don’t like the attached strings, they don’t have to take the money. Members of the Court have sporadically worried about undue federal pressure, but only in dicta and without much elaboration. In 1987, in South Dakota v. Dole, the Court famously upheld the spending bargaining enterprise, so long as the conditions are unambiguous, reasonably related to the federal interest, promote general welfare, and do not induce Constitutional violations. No law has ever run afoul of these broad limits, which have not since been revisited—until now.
In challenging the ACA, 26 states argued that Congress had overstepped its bounds by effectively forcing them to accept a significant expansion of the state-administered Medicaid program, even though Congress would fund most of it. All states participate in the existing Medicaid program, and many feared losing that federal funding (now constituting over 10% of their annual budgets) if they rejected Congress’s new terms. Congress had included a provision in the original law stating that it could modify the program from one year to the next, as it had done nearly fifty times previously. But the plaintiff states argued that this time was different, because the changes were much bigger and because they couldn’t realistically divorce themselves from the programs in which they had become so entangled. Even though they really wanted out, they claimed, now they were stuck. The feds maintained that congressional funds are a conditional gift that states are always free to take or refuse as they please.
In deciding the case, the Court stated a new rule limiting the scope of Congress’s spending power in the context of an ongoing regulatory partnership. Chief Justice Roberts began by upholding the presumption underlying spending power bargaining—that the states aren’t coerced, because they can always walk away from the table if they don’t like the terms of the deal. We mostly dispel concerns about coercion by relying on the states to “just say no” when they don’t like the federal policy. (In a choice rhetorical moment, he offered: “The States are separate and independent sovereigns. Some¬times they have to act like it.”) Accordingly, he concluded that the Medicaid expansion was constitutional in isolation, because states that don’t want to participate don’t have to. No coercion, no constitutional problem.
But then the decision takes a key turn. What would be a problem, he explained, would be if Congress were to penalize states opting out of the Medicaid expansion by cancelling their existing programs. Given how dependent states have grown on the federal partnership to administer these entrenched programs, this would be unconstitutionally coercive. By his analysis, plaintiffs chose the original program willingly, but were being dragooned into the expansion. To make the analysis work, though, he had to construe Medicaid as really being two separate programs: the current model, and the expansion. Congress can condition funding for the expansion on acceptance of its terms, but it can’t procure that acceptance by threatening to defund existing programs (analogizing to gun-point negotiating tactics). The decision requires Congress to allow dissenting states to opt out of the Medicaid expansion while remaining in the older version of the program.
Justice Ginsburg excoriated this logic in dissent, arguing that there was only one program before the Court: Medicaid. For her, the expansion simply adds beneficiaries to what is otherwise the same partnership, same purpose, same means, and same administration: “a single program with a constant aim—to enable poor persons to receive basic health care when they need it.” She criticized the Chief Justice for enforcing a new limitation on coercion without clarifying the point at which permissible persuasion gives way to undue coercion, and she pointed out the myriad ways this inquiry requires “political judgments that defy judicial calculation.”
On these points, Justice Ginsburg is right. The decision offers no limiting principle for future judges or legislators evaluating coercive offers. “I-know-it-when-I-see-it” reasoning won’t do when assessing the labyrinthine political dimensions of intergovernmental bargaining, but neither the decision nor the conservative justices’ dissent provides more than that. Moreover, the rule is utterly unworkable. No present Congress can bind future congressional choices, so every spending power deal is necessarily limited to its budgetary year as matter of constitutional law. But after this decision, Congress can never modify a spending power program without potentially creating two tracks—one for states that like the change and another for those that prefer the original (and with further modifications, three tracks, ad infinitum). The decision fails to distinguish permissible modifications from new-program amendments, leaving every bargain improved by experience vulnerable to legal challenge. And it’s highly dubious for the Court to assume responsibility for determining the overall structure of complex regulatory programs—an enterprise in which legislative capacity apexes while judicial capacity hits its nadir.
Nevertheless, the decision exposes an important problem in spending power bargaining that warrants attention: that is, how the analysis shifts when the states are not opting in or out of a cooperative federalism program from scratch, but after having developed substantial infrastructure around a long-term regulatory partnership. It’s true that the states, like all of us, sometimes have to make uncomfortable choices between two undesirable alternatives, and this alone should not undermine genuine consent. But most of us build the infrastructure of our lives around agreements that will hopefully last longer than one fiscal year (lay-offs notwithstanding). The Chief’s analysis should provoke at least a little sympathy for the occasionally vulnerable position of states that have seriously invested in an ongoing federal partnership that suddenly changes. (Indeed, those sympathetic to the ACA but frustrated with No Child Left Behind’s impositions on dissenting states should consider how to distinguish them.)
It’s important to get these things right, because as I describe in Federalism and the Tug of War Within, an awful lot of American governance really is negotiated between state and federal actors this way. Federalism champions often mistakenly assume a “zero-sum” model of American federalism that emphasizes winner-takes-all competition between state and federal actors for power. But countless real-world examples show that the boundary between state and federal authority is really a project of ongoing negotiation, one that effectively harnesses the regulatory innovation and interjurisdictional synergy that is the hallmark of our federal system. Understanding state-federal relations as heavily mediated by negotiation betrays the growing gap between the rhetoric and reality of American federalism—and it offers hope for moving beyond the paralyzing features of the zero-sum discourse. Still, a core feature making the overall system work is that intergovernmental bargaining must be fairly secured by genuine consent.
Supplanting appropriately legislative judgment with unworkable judicial rules doesn’t seem like the best response, but the political branches can also do more to address the problem. To ensure meaningful consent in long-term spending bargains, perhaps Congress could provide disentangling states a phase-out period to ramp down from a previous partnership without having to simultaneously ramp up to new requirements—effectively creating a COBRA policy for states voluntarily leaving a state-federal partnership. Surely this beats the thicket of confusion the Court creates in endorsing judicial declarations of new congressional programs for the express purpose of judicial federalism review. But in the constitutional dialogue between all three branches in interpreting our federal system, the Court has at least prompted a valuable conversation about taking consent seriously within ongoing intergovernmental bargaining.
Thursday, June 21, 2012
In the next few days, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution--the Obamacare decisions. And while they aren't directly about environmental law, they may as well be--because the same issues animate environmental governance conflicts from cross-boundary pollution management to nuclear waste disposal. For that reason, I thought I'd take this opportunity to go deep on the federalism issues at the heart of the long-awaited health reform decisions.
In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation’s first days.
Federalism is the Constitution’s mechanism for dividing authority between the national and local levels. In a nutshell, it assesses which kinds of policy questions should be decided nationally—yielding the same answer throughout the country—and which should be decided locally—enabling different answers in different states. Accordingly, the basic inquiry in all federalism controversies is always the same: who should get to decide? Is it the state or federal government that should make these kinds of health policy choices? And just as important, especially in this case, is who gets to answer that question—the political branches or the judiciary? Should the Court defer to Congress’s choices in enacting the ACA, or is it the responsibility of the Court to substitute its own judgment for the legislature’s on such matters?
To understand the quandaries of American federalism, a little history might help. In the first attempt at structuring the fledgling United States, the drafters erred on the side of localized autonomy in the failed Articles of Confederation, which established a union of powerful states constrained by little centralized authority. But this format offered the new Americans inefficient resources for managing interjurisdictional governance problems like interstate commerce, border-crossing harms, or cooperative projects of infrastructure and defense. Learning from that mistake, the Constitution’s architects sought a better balance—reserving broad authority to the states to regulate for public welfare while delegating a set of specific and open-ended powers to the federal government for resolving the collective action problems that confounded the states.
In service of this balance, the Constitution clearly delegates some responsibilities to one side or the other—for example, the federal government guarantees equal protection of the laws and regulates interstate commerce, while the states manage elections and regulate local land use. But between the easy extremes are realms of governance in which it’s much harder to know what the Constitution really tells us about who should be in charge. Locally regulated land uses become entangled with the protection of navigable waterways that implicate interstate commerce and border-crossing environmental harms. Voting rights cases merge election management with equal protection concerns (e.g., Bush v. Gore). Health care providers are licensed at the state level, but health insurance creates a national market of the sort long regulated by Congress.
As a result, the Constitution creates spheres of state and federal authority that are at once separated and overlapping, at least at the margins. The Constitution anticipates such overlap and provides management tools via the Supremacy Clause, which clarifies that legitimate federal law can always preempt conflicting state law. But even that isn’t the end of the issue, as the feds often share regulatory space with the states even when preemption is clearly possible, especially when state and local government brings useful capacity to the regulatory table.
Throughout American history, the question that keeps coming up—and that hangs in the balance of the Obamacare cases—is just how big we should understand that marginal area of overlap to be. Is that gray area between more clearly exclusive areas of national and local prerogative as big as the ACA proponents contend, or as small as its detractors prefer? The Obamacare cases most directly ask how best to understand the appropriate bounds of federal power, but the flip-side of that question—how to understand the bounds of appropriate state power—is also implicated. This is the issue that underlies the important preemption cases that also plague the Court, such as this Term’s Arizona v. United States immigration-related case.
But here’s the thing. The reason these issues get so complicated—and so controversial—is that the Constitution, beautiful as we may think it, usually doesn’t resolve them. Indeed, the problem that pervades all federalism/preemption controversies is that the Constitution mandates but incompletely describes our system of dual sovereignty, in a way that forces those implementing it to rely on some external theory about what American federalism is for and how it should operate when applying its vague directives to actual controversies. And unsurprisingly, there are multiple competing theories, all consistent with those directives but pushing us in different directions.
Two have especially influenced the Court’s notoriously vacillating approach to understanding federalism. The “dual federalism” approach prefers stricter separation between proper spheres of state and federal power, policed by judicially-enforced constraints that trump legislative determinations. For example, the Court followed dual federalism thinking when it rejected federal remedies under the Violence Against Women Act in United States v. Morrison in 2000, and if it follows that approach in the ACA cases, it would likely strike down Obamacare as the appropriate vindicator of appropriate limits on federal power. Dual federalism thinkers see federalism as a zero-sum game, in which any expansion of federal reach comes at the direct expense of state reach, and vice versa.
By contrast, the “cooperative federalism” approach rejects the zero-sum model and tolerates greater jurisdictional overlap. Cooperative federalism urges judicial deference to federalism-sensitive policymaking, on grounds that “political safeguards” for federalism are already built into legislative decision-making by constitutional design, given that national representatives are elected at the state level. The Court has repeatedly relied on cooperative federalism thinking in upholding Congress’s use of federal funds to bargain for shared regulatory jurisdiction over social programs like Social Security and Medicare, or the regulation of education and health care. If the Court follows that approach in the ACA cases, it might defer to the interpretive choices of the democratically-elected legislature in deciding an issue that falls through the cracks of more clearly articulated constitutional lines.
The battle between these classic contenders of federalism theory was on full display during the ACA oral arguments. For example, the question most vexing Justice Kennedy about the individual mandate was that of federal limits. If the federal government can do this, he asked, then what can’t it do? Does affirming a mandate like this one effectively eviscerate all determinable limits of federal power under the Commerce Clause or any other? Could Congress next order us to eat broccoli, for all the same reasons it can require us to buy health insurance? In this respect, he voiced the dual federalism perspective, suggesting that judicial safeguards might be necessary to police the boundaries of federal authority. (Begging the question: if it were the state government ordering us to eat broccoli, would that be okay?)
Donald Verrilli, the Solicitor General defending the ACA, replied from the cooperative federalism perspective that the effective limits on federal power were located in the democratic process itself. He argued that nobody can seriously imagine a congressional mandate to eat broccoli, because to the extent Americans believe this unreasonable, they will not elect representatives who would create it (and they will replace any who do). In other words, he answered with the political-safeguards refrain that Congress can reliably make gray area regulatory choices, because interpreting that zone of overlap is more amenable to legislative deliberation than bright-line judicial review. (So as long as the Congress that orders us to eat broccoli is duly elected, federalism is satisfied?)
This moment of Supreme Court dialog, reiterating a conversation hallowed by centuries of repetition, reveals the rabbit-hole in which federalism debates have languished for too long—stuck between the dual and cooperative federalism alternatives of jurisdictional separation or overlap, and judicial or legislative interpretive hegemony. The dual federalism approach imagines that the very purpose of federalism is to draw lines between state and federal power (no matter how arbitrary they may be in the gray area), and credits the judiciary as best-poised to interpret such bright-line constitutional crystals. The cooperative federalism approach better understands the unavoidable mud of jurisdictional overlap and appropriately credits political safeguards in circumstances where judicial review is unworkable—but itself lacks a satisfying theoretical answer to the question of who should decide. And neither approach gives us the tools we really need to evaluate the broccoli law, or any other.
A better approach to resolving federalism controversies like Obamacare frames the “who decides” question as neither a quest for bright-line boundaries nor pure faith in the political process, but as an examination of how the challenged governance relates to the values that underlie American federalism in the first place.
Americans invented federalism to help us actualize a set of good-governance goals in operation of the new union. We created checks and balances between local and national power to protect individuals against governmental overreaching or abdication on either side. Federalism fosters local autonomy and interjurisdictional competition, and we hope it will promote governmental accountability that enhances democratic participation throughout the jurisdictional spectrum. Federalism facilitates the problem-solving synergies that arise between the separate strengths of local and national governance for dealing with different parts of interjurisdictional problems. On balance, if governance advances these values, then it is consistent with the Constitution’s federalism directives. If it detracts from them, we have a problem.
The trick, of course, is that while all of these values are independently good things, they are nevertheless suspended in tension with one another, such that you can’t always satisfy all of them at the same time. Sometimes local autonomy pulls in the opposite direction from checks-and-balances, which can alternatively frustrate problem-solving synergy. These tensions expose the values “tug of war” within federalism, highlighting the inevitable tradeoffs in interjurisdictional governance that makes it so difficult. It also reveals why the line-drawing exercises of dual federalism are ultimately unsatisfying—a two dimensional approach for resolving a multi-dimensional problem on a wholly separate plane of analysis.
Federalism’s tug of war suggests that the most robust approach for resolving federalism controversies should be tethered to a more transparent consideration of how challenged governance fails or succeeds in advancing these fundamental values: checks and balances, accountable governance, local autonomy, and interjurisdictional synergy. It should also take advantage of the relative capacities of the different branches of government for considering these factors in different circumstances.
And that’s just what the Court should be doing in analyzing the ACA. Rather than asking whether the law violates some abstract limit on federal power, the Court should ask whether the trade-offs against some federalism values are justified in service to others.
The states submit that the law compromises local autonomy too much, and the federal government maintains that the need for collective-action problem-solving justifies any intrusion, which is limited by the flexibility the law confers on states to create alternative programs and to opt out entirely by declining federal funds. The plaintiffs argue that the individual mandate compromises the very individual rights that checks and balances are designed to protect, while the defendants protest that there is no recognized right to not buy health insurance, especially when the failure to do so externalizes harms to other individuals. They might further argue that both checks and synergy values are served by the use of a regulatory partnership approach to health reform rather than full federal preemption. And so on.
In a new book, Federalism and the Tug of War Within, I offer a theory of Balanced Federalism to facilitate these foundational inquiries. Federalism analysis tethered to underlying constitutional values would help ensure governance that best advances them, and it would defuse the frequent constitutional grandstanding in which federalism is strategically deployed to mask substantive policy disagreements. In the end, the question should not be whether only the state or also the federal government can make us eat broccoli; it is whether there are any constitutionally compelling reasons for either to do so. Either way, one thing remains clear: no matter what the Court decides this month, we are sure to be talking about it for a very long time.
Thursday, February 23, 2012
Earlier this week, the U.S. Supreme Court issued its opinion in the first of two important environmental cases on its docket this term: PPL Montana v. State of Montana. (The Court has yet to issue its decision in the other, Sackett v. EPA.)
In a unanimous opinion authored by Justice Kennedy, the Court declared in PPL Montana that the Montana Supreme Court erred in finding three rivers navigable for title purposes. Sifting through Justice Kennedy’s citations to the journals of Lewis and Clark, centuries-old newspaper reports, and countless other obscure secondary sources (many of which were not even in the record), the opinion can be summarized so: If commercial travelers had to portage around a segment of a river at the time of statehood, title to that segment is not held by the state unless the segment was so short that it lacked commercial value. The likes of Rick Frank at Legal Planet and Tom Merrill at SCOTUSblog already have provided thought-provoking analysis of this conclusion by the Court.
There is at least one noteworthy (though not necessarily surprising) omission in Justice Kennedy’s opinion: despite the pleadings of PPL Montana and several amici, the Court did not use the case to expound upon its musings on judicial takings theory set out in its splintered 2010 Stop the Beach Renourishment v. Florida Department of Environmental Protection decision. Readers may recall that in Stop the Beach, a 4-2-2 split (with Justice Stevens recused) left open the question of whether judicial interpretations of property law can, like actions of the political branches, amount to unconstitutional takings of property. In short, Justice Scalia’s plurality opinion said “yes” (if a court declares that an “established” property right “no longer exists”); Justice Kennedy, joined by Justice Sotomayor, said “probably not” since the Due Process Clause is well-equipped to address rogue judicial interpretations; and Justice Breyer, joined by Justice Ginsburg, said “very likely not” but the question need not be decided here. However, these ruminations on judicial takings theory proved completely irrelevant in the case at hand, for the Court unanimously affirmed the Florida Supreme Court’s opinion that no taking had occurred.
Taking a cue from the Stop the Beach plurality, PPL Montana had suggested that the Montana Supreme Court was the “operative force” behind a “land grab” of privately-owned riverbeds, such that the decision itself could be violative of the Takings Clause. Yet the U.S. Supreme Court ultimately did not address this assertion. Still, Justice Kennedy’s opinion in PPL Montana could be viewed as the continuation of a disturbing trend promoted by the Court in Stop the Beach: it represents an implicit, wide-ranging distrust of state courts and a disregard for the principle that property rights are generally determined with reference to state law.
Since its release in June of 2010, it appears that at least six lower federal courts have cited Stop the Beach for the principle that property interests are defined by state law for federal takings purposes. This is somewhat ironic, for all eight participating Justices in Stop the Beach arguably can be criticized for conducting an independent review of Florida state law. They all said property rights are defined by state law, yet showed no level of deference to the Florida Supreme Court’s decision doing just that—defining state property rights. Instead, the U.S. Supreme Court unanimously upheld the Florida Supreme Court’s decision only on reasoning set forth in a 1927 Florida case to which the Florida Supreme Court had not even cited. This approach, however, did not come as a total surprise—as Laura Underkuffler has noted, in the fifteen important U.S. Supreme Court takings opinions since 1987, only three actually interpreted property rights in terms of state law.
The PPL Montana Court arguably can be criticized in the same way. For instance, while the Court stressed that the “public trust doctrine remains a matter of state law,” it offered its own, very narrow explanation of the doctrine: “the public trust doctrine…concerns public access to the waters above [the relevant riverbeds] for purposes of navigation, fishing, and other recreational uses.” The lack of deference to the Montana courts was also evident in Justice Kennedy’s assertion that, “contrary to the Montana Supreme Court’s decision,” at least one specific stretch of one of the Montana rivers at issue—the 17-mile Great Falls stretch—“is not navigable for purposes of riverbed title.” As Tom Merrill notes, “Ordinarily, when the Court reviews a decision of a state supreme court, it will correct errors in federal law, and remand for application of the correct legal principles [here, application of the correct navigability-for-title test] by the state courts. … But the statement about Great Falls admits only one action on remand.”
Stop the Beach is arguably a poor case for lower federal courts to cite as demonstrative of deference to state courts or for the principle that property interests are determined with reference to state law, though PPL Montana does not seem far behind.
Thursday, February 9, 2012
An earlier post on this blog raised the issue of whether the stringent takings standards of Nollan and Dolan are applicable at the point in time when the government, in a pre-decisional negotiating session, merely proposes a permit condition to counter environmental and infrastructural impacts of new development. A recent decision by the Florida Supreme Court in the matter of St. John’s River Water Management District v. Koontz concludes that the answer is no, though there are select opinions to the contrary in other jurisdictions. A related, or corresponding, temporal issue involves the doctrine of waiver: does a landowner, after acquiescing to a conditional permit, maintain the right to challenge the condition therein as a compensable taking? Several decisions out of California seem to suggest the answer is no. For instance, in Rossco Holdings, Inc. v. State of California, a state appellate court indicated that a landowner cannot challenge a condition attached to an issued permit after “specifically agreeing to the condition.”
If both Koontz and Rossco Holdings are correct, there arguably is never an opportunity to apply Nollan and Dolan. However, this obviously cannot be the case, for the U.S. Supreme Court unanimously preserved the Nollan and Dolan standards in 2005 in the course of clarifying components of its regulatory takings jurisprudence in Lingle v. Chevron, Inc.
So where does this leave the state of exaction takings law? My inclination is to say that Koontz is justifiable and Rossco Holdings — at least the above interpretation of Rossco Holdings — is suspect. Despite the many criticisms of and uncertainties surrounding exaction takings doctrine and the closely related unconstitutional conditions doctrine, the premise of these doctrines is evident: to protect people from being in the hopeless position of having no recourse but to submit to a manipulative, unconscionable state. Assuming this premise is both accurate and sound, it would seem that a landowner should be considered to have waived the right to challenge an exaction as a taking under Nollan and Dolan only after he or she has commenced the conditionally permitted construction or otherwise taken advantage of the permit.
Wednesday, April 20, 2011
If the Clean Air Act Displaces Public Nusiance Claims, What Happens if Congress Displaces the Clean Air Act?
During yesterday’s oral argument of AEP v. Connecticut, it seems that things did not go so well for the states attempting to address climate change through public nuisance litigation, see for example here, here, here, and here as representative of typical prognostications of the argument. Because those reading the tea leaves seem to agree the states will lose, the main question up for grabs is how they will go down.
Earlier today, Richard Frank posted a very thoughtful post on this subject. According to Professor Frank, the states will likely lose on the grounds that the Clean Air Act displaces the ability of litigants to bring public nuisance suits arising from greenhouse gas emissions because they are covered by the Act. This is certainly the gist, for example, of the now familiar Justice Ginsburg barb: “Congress told EPA to set the standards [in the Clean Air Act]. You are setting up a District judge as a kind of ‘super EPA.’”
I agree with Prfoessor Frank. However, if this is how the case is resolved, it is interesting to speculate whether or not congressional attempts to strip EPA of its power to regulate greenhouse gases under the Clean Air Act, if indeed successful, would reopen the door for public nuisance claims. In other words, by displacing the Clean Air Act’s ability to regulate greenhouse gases would Congress also displace a litigant’s ability to argue that the Clean Air Act displaces such public nuisance claims?
Indeed, as the attorneys and the Justices have prepped for AEP’s oral argument over the past few weeks, the news has been filled with the unfolding saga of many of those in Congress attempting to eliminate or cutback the Clean Air Act’s reach to regulate greenhouse gases.
Additionally, as the Justices work into the summer attempting to hammer out an opinion in this case, it also seems likely that further efforts to eliminate or cut back the EPA’s power in this area will continue. In fact, on the heels of the most recent attempt to make EPA’s regulation the ransom necessary to avoid a shutdown of the federal government, Speaker Boehner told us this will not be the last attempt to go after EPA’s regulatory powers. Looking forward, it seems that the question of raising the country’s debt ceiling, which is probably going to be debated within the next few weeks, is a very likely flashpoint in this ongoing congressional battle.
As disturbing as it might be if litigants like those in AEP v. Connecticut ask a district court to act like a Super EPA, one has to question what happens if EPA is forced to act as a Miniature EPA or stripped of its power to act like EPA at all.
-- Brigham Daniels
Monday, April 11, 2011
Wetlands expert Roy Gardner, Stetson University College of Law, has recently published a fascinating book on U.S. wetland law and policy. The book, Lawyers, Swamps, and Money, U.S. Wetland Law, Policy, and Politics has recently become available for purchase (Island Press), and you may purchase a copy here. You can read the press release for the book below.
Professor Gardner is one of the nation's leading experts on wetland law and policy. His book reflects not only his expertise, but also his special ability to make the details of wetland law and policy accessible to all - even despite the complex web of constitutional, administrative, and environmental questions raised. I recommend this book to anyone interested in wetlands, and think it would be great supplementary reading for Natural Resources Law and Policy or related courses.
Professor Gardner is the director of Stetson's Institute for Biodiversity Law and Policy, and was instrumental in Stetson University College of Law becoming the first school in the country to gain membership to the US National Ramsar Committee, which supports the Ramsar Convention on Wetlands in the United States. Stetson students worked with the site manager of Audubon’s Corkscrew Swamp Sanctuary to seek its designation as a Wetland of International Importance under the Ramsar Convention, and it was successfully designated as such in the spring of 2010.
Lawyers, Swamps, and Money
U.S. Wetland Law, Policy, and Politics
By Royal C. Gardner
Washington, D.C. (April 2011) — A leading expert on wetlands law and policy has written an engaging guide to the complex set of laws governing these critical natural areas.
Lawyers, Swamps, and Money explains the importance of America’s wetlands and the threats they face, and examines the evolution of federal law, principally the Clean Water Act, designed to protect them. Royal Gardner’s writing is simultaneously substantive and accessible to a wide audience — from policy makers to students to citizen activists.
Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:
• the geographic scope and activities covered by the Clean Water Act
• the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency
• the goal of no net loss of wetlands
• the role of entrepreneurial wetland mitigation banking
• the tension between wetland mitigation bankers and in-lieu fee mitigation programs
• wetland regulation and private property rights.The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.
The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.
- Blake Hudson
April 11, 2011 in Biodiversity, Constitutional Law, Environmental Assessment, Governance/Management, International, Land Use, Law, Physical Science, Science, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Friday, April 10, 2009
Palmyra Pacific Seafoods, L.L.C. v. U.S., No. 08-5058 (Fed. Cir. April 09, 2009) PDF
Yesterday, the Federal Circuit decided a takings case where the U.S. created a wildlife refuge around an island on which the plaintiff had acquired contractual rights to operate a base and pier for its commercial fishing operation. The refuge regulations prohibited commercial fishing within the refuge and allowed limited sports fishing to facilitate operation of a camp owned by the Nature Conservancy. The Federal Circuit affirmed the Court of Federal Claims' dismissal for failure to state a claim. The Federal Circuit reasoned that the government's regulation of activities in the waters surrounding Palmyra may have adversely affected the value of plaintiff's contract rights, but did not take the contract rights themselves. The plaintiff is left with an ability to fish beyond the 12 mile limit of the refuge. Even if the government regulation targeted plaintiff's contract rights in order to promote the interests of another party, creation of the refuge and its regulations still did not constitute a compensable taking as those actions regulated conduct in which plaintiff had no protected property interest.
Monday, March 2, 2009
Sometimes its a good idea to stand back and contemplate the universe. Today's early news that the Dow Jones Industrial Index took another header because of AIG's $60+ billion loss prompts me to do that.
What is the vector of our society? What will it look like after all the dust has settled? It is not just the financial crisis that prompts me to contemplate this. Although the phrase is over-used, we are in the midst of a perfect storm -- a global economy that creates and distributes goods and services through the internet, computerized machines and cheap labor virtual collapse of the financial system, the advent of peak oil, and the climate crisis. How will all of these things cumulatively affect our future?
We've lived with the first problem for decades now -- what do people do as they become less and less important to production of goods and services. The science fiction of our times: what happens when people and their primary asset, labor, becomes virtually superfluous. Certainly countries with high labor costs relative to Asia and South America already are beginning to experience the problem. Computerized machines can plant, water, and harvest the fields; robots can make the cars and prefabricated housing; department stores, bank branches, car dealers, even retail grocery stores can be replaced by internet marketing; 100 law professors lecturing to law students and 1000 college professors lecturing to college students is more than enough -- creating the prospect of a British or continental education system, with those professors raised to unseemly heights and the remainder left to do the grunge work of tutors; even more radically, 100 K-12 teachers can teach a nation of students with computer graded exams, if we believe that convergent answers are the goal of education; priests and ministers can be replaced by TV showmen and megachurch performers.
So what do the other 6.95 billion of us do? Now, we consume. Voraciously. If we don't, then the basics can be provided by a very few and the rest of us become unwanted baggage. A non-consumer is a drag on the system. We depend on the velocity of money, excess consumption, and inefficiency to provide each of us with a job and to maintain the current economy.
And what happens when money moves at a crawl, when people stop consuming, when production becomes life-threatening to the planet, and when a key resource for production, oil, reaches the point of no return??? The answer is a new subsistence economy. A new world where a few are need to produce, a few more can consume, and the remainder have no economic role and are left to subsist as best they can.
Admittedly, it will be subsistence at a higher level -- through the internet, computerization, and technology, each of us will have the capacity to do things for ourselves that are beyond the imagination of today's impoverished subsistence farmers. But, relative to those who own all of the means of production, a few entertainers (be they basketball players, lecturers, moviestars, or mega-church leaders), and a few laborers (building the machines, computers, the information infrastructure and doing basic and applied research), we will all be poor. Perhaps only relatively and perhaps only in material terms. But poor, living at a subsistence level, consuming food from our own gardens, building our own houses, wearing clothes for function not fashion, educating our own children through the internet, capturing essential power through distributed energy, and buying very little of goods that are bound to be too expensive for most -- probably just computers. It won't necessarily be bad. Perhaps we can refocus on relationships, family, community, art, music, literature, and life, rather than define ourselves in terms of our job and our things. Perhaps we can refocus on spirituality instead of materialism. Who knows? Maybe the new society won't be such a bad thing after all -- at least if we insist that the few who have the privilege of production have a responsibility to share the wealth with the many.
March 2, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)
Wednesday, February 25, 2009
As the President says about the long term investments that are absolutely critical to our economic future:
It begins with energy.
We know the country that harnesses the power of clean, renewable energy will lead the 21st century. And yet, it is China that has launched the largest effort in history to make their economy energy efficient. We invented solar technology, but we’ve fallen behind countries like Germany and Japan in producing it. New plug-in hybrids roll off our assembly lines, but they will run on batteries made in Korea.
Well I do not accept a future where the jobs and industries of tomorrow take root beyond our borders – and I know you don’t either. It is time for America to lead again.
Thanks to our recovery plan, we will double this nation’s supply of renewable energy in the next three years. We have also made the largest investment in basic research funding in American history – an investment that will spur not only new discoveries in energy, but breakthroughs in medicine, science, and technology.
We will soon lay down thousands of miles of power lines that can carry new energy to cities and towns across this country. And we will put Americans to work making our homes and buildings more efficient so that we can save billions of dollars on our energy bills.
But to truly transform our economy, protect our security, and save our planet from the ravages of climate change, we need to ultimately make clean, renewable energy the profitable kind of energy. So I ask this Congress to send me legislation that places a market-based cap on carbon pollution and drives the production of more renewable energy in America. And to support that innovation, we will invest fifteen billion dollars a year to develop technologies like wind power and solar power; advanced biofuels, clean coal, and more fuel-efficient cars and trucks built right here in America.
As for our auto industry, everyone recognizes that years of bad decision-making and a global recession have pushed our automakers to the brink. We should not, and will not, protect them from their own bad practices. But we are committed to the goal of a re-tooled, re-imagined auto industry that can compete and win. Millions of jobs depend on it. Scores of communities depend on it. And I believe the nation that invented the automobile cannot walk away from it.
None of this will come without cost, nor will it be easy. But this is America. We don’t do what’s easy. We do what is necessary to move this country forward.
February 25, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)
Congratulations to all of the participants in the National Environmental Law Moot Court Competition held at Pace University during the last few days. Roughly 70 law schools participated in the competition, which featured a difficult and oft-times confusing problem about salvage of a Spanish shipwreck. The law covered by the problem included admiralty law, administrative law, international law such as the UNESCO treaty and the Law of the Sea, the National Marine Sanctuaries Act, the Endangered Species Act, the Clean Water Act, the Rivers and Harbors Act, the Outer Continental Shelf Lands Act, and for good measure, the Submerged Military Craft Act. Just typing that list makes me tired!
The learning is in participating, but the honors for Best Briefs go to University of Houston, Georgetown, and University of California at Davis, with Houston winning overall Best Brief. The Best Oralist Honor goes to Louisiana State University. The final round of the competition featured Lewis & Clark law school, University of Utah, and Louisiana State. Lewis & Clark prevailed, winning the overall competition for the 2d time in a row. If I recall correctly, that may be the first back to back win. Congratulations to everyone!
The students of Pace University deserve special mention for sacrificing their ability to compete and for running a flawless competition. More details can be found at the NELMCC site.
February 25, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)
Tuesday, January 27, 2009
One of my students just published an article on Oregon's battle with takings legislation: David Boulanger, The Battle over Property Rights in Oregon: Measures 37 and 49 and the Need for Sustainable Land Use Planning, 45 Willamette L Rev 313 (2008).
If you have any interest in land use law, how takings law affects the environment or in takings legislation, this article is worth a read.
Friday, January 23, 2009
Here's my church's video to launch our 2009 Drink Water for Life lenten challenge. If you benefit from the work I do on this blog, please, please, please......take the challenge or find another way to contribute to organizations that do community-based water projects. Church World Service or Global Ministries are great faith-based organizations. Water for Life and Water for People are great secular groups. Every 15 seconds, a child dies from a water borne disease like cholera or dysentery from lack of clean water and sanitation. Together, we can change this. Village by village.
January 23, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 20, 2009
E & E News reported:
The Senate unanimously confirmed seven of President Barack Obama's Cabinet picks today, including Agriculture Secretary Tom Vilsack, Energy Secretary Steven Chu and Interior Secretary Ken Salazar, but postponed debate on his nominees to lead the State Department, U.S. EPA and White House Council on Environmental Quality...In a post-inauguration session, the Senate quickly approved Chu, Salazar, Vilsack, Education Secretary Arne Duncan, Homeland Security Secretary Janet Napolitano, Veterans Affairs Secretary Eric Shinseki and Office of Management and Budget Director Peter Orszag.
Senate Majority Leader Harry Reid (D-Nev.) also scheduled a 3 p.m. roll call vote for tomorrow on Sen. Hillary Rodham Clinton (D-N.Y.), Obama's nominee to be secretary of the State Department.... The Senate did not take up two other Obama nominations: Lisa Jackson to be the next EPA administrator and Nancy Sutley to be the chairwoman of the White House CEQ. Both nominees did not face significant scrutiny during their confirmation hearings last week, leaving several Senate Republican and Democratic leadership aides today searching for answers about who was holding up the two Obama environmental picks....Andrew Wheeler, Republican staff director for the Senate Environment and Public Works Committee, said ranking member James Inhofe (R-Okla.) supports both nominees and isn't sure who raised the objection to Jackson and Sutley's confirmations, though he said the objection to Sutley being confirmed today was because her position is not Cabinet-level.
January 20, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)
Today I had the pleasure as Director of our law school's Certificate Program in Law and Government to host two visitors from Mozambique through the International Leadership Visitor Program funded by the State Department. This program focuses on bringing emerging leaders from developing countries concerned with good governance to the United States, to expose them first-hand to various aspects of American governance. Last year, we hosted 16 visitors from more than a dozen African countries. Today's session was more informal and a bit more manageable.
Our visitors were the Governor of a northern province and the second in command of a major department within the national government. They were interested in learning how the United States trains its graduate or advanced students in law and government. We were able to share some aspects of our program, including attending and speaking with my first year Lawmaking Process class. They were also fascinated by how the United States is evolving with its election of President Obama.
The treat, of course, for me was to learn first-hand something about Mozambique, its politics and policy, and role in Africa. Certainly, its thorough integration of woman into the power structure and into all aspects of administration is a lesson for Americans as well as other Africans. This is beginning to happen here, witness Hillary Clinton, Nancy Pelosi, Diane Feinstein, the corps of talented Governors through the US and the league of women joining the Obama administration. But, until a woman stands where President Obama stood today, we still lag behind virtually every developed country in the world -- and many, such as Mozambique, in the developed world. Women took their place in the struggle for independence in Mozambique -- even on the battlefield. They have continued to serve in Parliament and throughout government, with stature and an assured equality that American woman still lack.
Their challenge is to solidify their independence and their emerging democracy -- and to solve the problem of poverty. There, President Obama gave them reason to hope: "To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds. And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to suffering outside our boders; nor can we consume the world's resources without regard to effect. For the world has changed, and we must change with it."
As you who read this blog regularly no doubt realize, these words, especially about providing clean water and reducing our consumption of resources, were music to my ears. And perhaps to yours.
We have a President who in the midst of the raging storms of the failure of our economy and two wars, understands that "each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet." That the work to be done includes the promise that "[w]e will harness the sun and the winds and the soil to fuel our cars and run our factories." That "we will work tirelessly...to roll back the specter of a warming planet."
As my new friends from Mozambique realize, President Obama has not become just an American president, but he is today the most important leader of the whole world. Not just by virtue of our relative prosperity and military power, but by virtue of our willingness to turn the page of history and to pledge to live up to our responsibilities to people seeking peace and justice and equality and means to enjoy their full measure of happiness throughout the world.
Today, my friends, let us celebrate with all of our new friends...and pledge ourselves to making this vision become a reality, in law, in policy, and in how we conduct our obscure, everyday lives.
January 20, 2009 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack (0)
Thursday, December 18, 2008
Dear Readers and Friends:
It is so difficult this time of year to decide how to spend one's limited resources in a way consistent with our duty to reduce human suffering and make the world a better place. It is especially difficult now, when all of us are a bit uncertain about our financial future and have lost a considerable amount of our paper wealth. But, I am concentrating for now on Haiti, the most impoverished nation in the Western hemisphere. Below I post a letter from a friend in Haiti, in the hope that some of you may help in the resurrection of Haiti after this fall's hurricane season. Obviously, my friend is a Christian (as I am), but human need knows no religion. Be assured that any money sent him through the church will be used to meet profound human need, not the promotion of a creed. And, if you are reluctant to send money to a faith-based organization, just let me know and I'll be happy to find a secular route for your gift.
[We] are writing you all with a great mix of emotions – sadness and frustration, great doubts, fear, but also some sense of hope. Many of you already know that in the past five weeks, Haiti was affected by four hurricanes – Fay, Gustav, Hanna and Ike, resulting in profound destruction throughout the entire country. Chavannes Jean Baptiste, the director of MPP (Mouvman Peyizan Papay–Farmer’s Movement of Papay) noted this past Monday that the situation is without precedent. MPP along with other national and international organizations are beginning to get a grasp of the level of havoc and devastation, but it seems impossible that anyone will ever be able to make a full accounting of the loss of life and property.
Many of the root causes of the poverty in Haiti–weak government, inadequate communication, lack of roads and other infrastructure, virtually non-existent social services–have always kept Haitind other countries with similar conditions, open to the full effects of disasters such as this. These same conditions now make it difficult and in some cases impossible for a quick response to those who need help the most. It is even nearly impossible to know who needs the help the most. In the last two days, I have received reports via e-mail of whole communities without food and water, with no help in sight. Lack of real roads have always been part of the isolation of many of these communities. Now, the serious damage to bridges and other weak points along the roads that do exist has increased the number of people who are isolated from any easy access, as well as deepening the level of isolation for those who have always lived at the limits.
Given all this, [our] sense of sadness is easy to understand. We live along side people who carry on their daily lives with grace, great generosity and wonderful senses of humor, despite the profound limitations. Now, these same people, some of whom are close personal friends, have lost homes and possessions and we know they have no real resources, or hope, for recuperating their losses. We have a great need to help, but we ourselves do not have the ability to provide any help that seems significant, even at the local level. Not even for just the families who are part of MPP – at least 52 families whose homes were flooded last week. Multiply the needs of the folks in Hinche by all of communities in nearly every part of Haiti, you can easily understand our frustration. What can we do? Within the sadness and frustration I also feel some guilt, because we ourselves are safe and suffered no damage at all to our home or even to the project where I work.
We also wonder whether the kind of help that is starting to come could possibly be adequate, given the enormous need. And will the assistance that comes be directed to address some of the root causes of poverty in Haiti? Will the funds help rebuild roads and bridges so that they are better than they were, or will the be used to make the highways and byways merely passable, subject as always to rapid degradation by even normal use? And will the international lending agencies, such as the International Monetary Fund, encourage the Haitian government to create “safety nets” that can help families and communities recuperate losses? Or will they follow their standard policy, insisting on budgetary stringency, regardless of the needs of the most vulnerable–the poor in general, and women, children and the aged in particular?
It is impossible to write about the current catastrophe without mentioning as well the ongoing global wide crises of food prices which are spiraling out of US control. In the project that I help coordinate – the crew prepares and shares two meals a day. We produce all of the vegetables for these meals ourselves, but for the items we can’t produce (corn, rice, coffee, oil etc), we paid a total of around $100 in May. In August, we spent around $135 for the same supplies and in September we spent $175. In a country where over half the population earns less than $US 1.00 a day, the situation was devastating, before the flooding will now die from hunger, giving in at last to ongoing deprivation?
And the fear we feel, where does that come from? Haitians have a marvelous way of dealing with difficult situations that I have come to respect a great deal. They sing, they laugh, they joke and suddenly, the load lightens and the way forward opens up again. There is also a great deal of tolerance, or patience, with unjust conditions. But there are limits. The suffering from the food crisis was becoming nearly insufferable before the hurricanes. If there is not a rapid, reliable and comprehensive response to the current situation, especially by the Haitian government, there will almost surely be massive unrest, probably focused, as always, in Port au Prince, the capital of Haiti.
At the end of such a letter, what could we say about hope that could balance the discouragement I’m sure you can sense in what I write? First and foremost is faith – [our] faith as well as the profound faith of Haitians in general. We do believe in a God who makes a way where there is no way – our God who sent our savior, Jesus Christ, to die on the cross, not only to demonstrate God’s profound solidarity with his chosen people, but also to completely and finally put an end to despair. Because we are Christ followers, we hope, and there is nothing that can separate us from that hope, from the constant renewal of that hope. As [we] and several crew members were heading south, into Port au Prince,... we passed through an area just north of the city of Mirebelais (Mee be lay) where the farmers have access to irrigation. In field after field as we traveled down the road, farmers were out in those fields transplanting rice, hoeing rice, irrigating rice. Just one day after Hurricane Ike had passed through, the fields were already moving from devastation into abundance, farmers moving from being victims to being the agents of their own resurrection. What a miracle. What a God.
Please be part of Haiti’s resurrection. Contributions for the crisis in Haiti may be sent to Presbyterian Disaster Assistance (PDA). Please write on the check “DR-000064 Haiti Emergency.” Mail it to:
Presbyterian Church (USA)
Individual Remittance Processing
P.O. Box 643700
Pittsburgh PA 15264-3700
December 18, 2008 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)
Wednesday, December 17, 2008
DON’T FORGET TO MARK PIELC IN YOUR 2009 CALENDARS!
The 27th Annual Public Interest Environmental Law Conference
Solidarity! United Action for the Greener Good
February 26th – March 1st
University of Oregon School of Law
Read on for planning updates and reminders . . .
- Last day to submit panel
suggestions is January 15th, but the sooner the better, as our timeslots are
already starting to fill up. Go to http://www.pielc.org/pages/
- Submit artwork for PIELC 2009 posters and t-shirts now! Email submissions to email@example.com, or mail them to 1221 University of Oregon School of Law, Eugene, OR 97403, attn: LAW
- Coming in mid-January, our website will be updated with more travel, lodging, and childcare options than ever at www.pielc.org.
- Our confirmed keynote speakers are:
Katherine Redford – Co-Founder and US Office Director of Earth Rights International, is a graduate of the University of Virginia School of Law, where she received the Robert F. Kennedy Award for Human Rights and Public Service. She is a member of the Massachusetts State Bar and served as counsel to plaintiffs in ERI's landmark case Doe v. Unocal. Katie received an Echoing Green Fellowship in 1995 to establish ERI, and since that time has split her time between ERI's Thailand and US offices. In addition to working on ERI's litigation and teaching at the EarthRights Schools, Katie currently serves as an adjunct professor of law at both UVA and the Washington College of Law at American University. She has published on various issues associated with human rights and corporate accountability, in addition to co-authoring ERI reports such as In Our Court, Shock and Law, and Total Denial Continues. In 2006, Katie was selected as an Ashoka Global Fellow.
Riki Ott – Experienced firsthand the devastating effects of the Exxon Valdez oil spill—and chose to do something about it. She retired from fishing, founded three nonprofit organizations to deal with lingering social, economic, and harm, and wrote two books about the spill. Sound Truth and Corporate Myths focuses on the hard science-ecotoxicology, and the new understanding (paradigm shift) that oil is more toxic than previously thought. Not One Drop describes the soft science--the sociology of disaster trauma, and the new understanding that our legal system does not work in cases involving wealthy corporations, complex science, and class-action. Ott draws on her academic training and experience to educate, empower, and motivate students and the general public to address the climate crisis and our energy future through local solutions. Ott lives Cordova, Alaska, the fishing community most affected by the disaster.
Stephen Stec – Adjunct Professor at Central European University (HU) and Associate Scholar at Leiden University (NL). As well as the former head of the Environmental Law Program of the Regional Environmental Center (REC), Stec is one of the authors of The Aarhus Convention Implementation Guide and main editor for the Access to Justice Handbook under the Aarhus Convention. The subject of the Aarhus Convention goes to the heart of the relationship between people and governments. The Convention is not only an environmental agreement; it is also a Convention about government accountability, transparency and responsiveness. The Aarhus Convention grants the public rights and imposes on parties and public authorities obligations regarding access to information and public participation and access to justice.
Fernando Ochoa – Legal Advisor for Pronatura Noroeste a Mexican non-profit organization and the Waterkeeper Program for the Baja California Peninsula, and founding member and Executive Director for Defensa Ambiental del Noroeste (DAN), an environmental advocacy organization. Mr. Ochoa has helped establish more than 60 conservation contracts to protect more than 150 thousand acres of land in Northwest Mexico. As the Executive Director of DAN, Mr. Ochoa has successfully opposed several development and industrial projects that threatened ecosystems in the Sea of Cortes and the Baja California Peninsula, having saved critical habitat for Gray Whales, Whale Sharks and other endangered species. His work has set important legal precedents on environmental law in order for local communities to gain participation in decision making processes, transparency and access to justice.
Claudia Polsky – Deputy Director of the Office of Pollution Prevention and Green Technology (P2 Office) in California’s Department of Toxic Substances Control (DTSC). The P2 Office is central to the implementation of new (2008) legal authority that gives California expansive ability to regulate toxic chemicals in consumer products. Instead of focusing on cleanup of past pollution -- the historic emphasis of DTSC -- the P2 Office looks to the future by preventing the use of toxic materials in consumer products and industrial operations. Ms. Polsky's duties include implementing California’s Green Chemistry Initiative, overseeing hazardous waste source-reduction programs, and working with staff engineers to evaluate and deploy new environmental technologies that reduce the need for toxic chemicals. The Office's work involves interaction with stakeholders as diverse as electronics manufacturers, breast cancer activists, analytical chemists, and venture capitalists. Before joining DTSC, Ms. Polsky worked for the California Department of Justice, Earthjustice, Public Citizen Litigation Group, and The Nature Conservancy. She holds an undergraduate degree from Harvard University, and a J.D. from Boalt Hall School of Law, where she was Editor in Chief of Ecology Law Quarterly. She is also a former Fulbright Scholar to New Zealand, receiving a Masters of Applied Science in Natural Resource Management.
Gail Small – The director of Native Action, an environmental justice organization in Lame Deer, Montana. Small's political engagement in energy issues began in the early 1970s, when she and other high school students were sent by the tribal government to visit coal extraction sites on the Navajo Reservation and in Wyoming, after the Bureau of Indian Affairs (BIA) signed leases opening the Northern Cheyenne Reservation to strip-mining. Small later served on a tribal committee that successfully fought for the cancellation of the BIA coal leases. She received her law degree from the University of Oregon and formed Native Action in 1984. Her work at Native Action includes litigation, drafting tribal statutes, and creating informational resources for tribal members.
Derrick Jenson – bio coming soon
SEE YOU THERE!
The Conference Co-Directors
Questions? Suggestions? Comments? email firstname.lastname@example.org
December 17, 2008 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)
Tuesday, December 2, 2008
Go check out the Center for Global Development's 2007 Commitment to Development Index page. Its got some great graphics that you have to see to appreciate. Unsurprisingly, EU countries lead the way on the Center for Global Development's index of commitment to environmentally sustainable development and the US trails the pack, scoring under 3 on a 10 point scale, while EU countries tend to score 6 or above with Norway near 9. Center for Global Development Commitment to Development Index
December 2, 2008 in Africa, Agriculture, Air Quality, Asia, Australia, Biodiversity, Cases, Climate Change, Constitutional Law, Economics, Energy, Environmental Assessment, EU, Forests/Timber, Governance/Management, International, Land Use, Law, Legislation, Mining, North America, Physical Science, Social Science, South America, Sustainability, Toxic and Hazardous Substances, US, Water Quality, Water Resources | Permalink | TrackBack (0)
Friday, August 29, 2008
ExxonMobil agrees to pay most of the reduced Exxon Valdez damage award - about 3 % of its most recent quarterly profits
This week ExxonMobil and plaintiffs' lawyers in the Exxon Valdez case concluded a settlement to pay out most of the $507.5 million maximum damages award set by the U.S. Supreme Court in June. August 26, 2008 AK Daily news Exxon will pay $383.4 million to be distributed to 33,000 commercial fishermen and others who sued after the Exxon Valdez tanker spilled almost 11 million gallons of oil in Prince William Sound in 1989. Exxon continues to battle with plaintiffs over another $70 million and potential interest of $488 million on the Supreme Court judgment. The figures don't add up because ExxonMobil will reimburse itself $54 million -- the largest single payout -- under terms of a side agreement Exxon made in 1991with seven Seattle-based fish-processing companies. The $ 383.4 million payment represents roughly 3 % of $11.7 BILLION profits ExxonMobil garnered last quarter, the largest corporate profit ever gained in history. 7/31/08 AP report on ExxonMobil 2d quarter profits At this profit rate, ExxonMobil will pay roughly 8/10th of 1% of its annual profits. Oh, I'm sure that ExxonMobil is quaking in their boots about ever being so negligent again. The average American family would pay a larger fine (as a percentage of their take home income or even their total income) for tossing a gum wrapper out the window of a car. Litter fines What's the take home message of the Supreme Court....maybe litter fines are unconstitutionally excessive? They might actually deter littering by the likes of ExxonMobil! If ExxonMobil had been fined at the rate of $1000 per cubic foot (the Washington State fine for littering more than a cubic foot of litter), ExxonMobil would have owed $ 1.47 BILLION. Forgive me. I'm still a bit irritated by the Supreme Court's sense of justice in the damages case.