James Marc Leas
Vermont can take action now to restrain the corrupting effects of money in elections without running afoul of Citizens United. With a result joined by all nine Justices, in Nevada Commission on Ethics v. Carrigan, the Supreme Court approved legislative conflict of interest recusal as a method to prevent corruption.
Recusal takes a cut at the corruption problem in a manner that is opposite to the way the old limits on election spending attempted. Vermont’s own reasonable contribution limits were declared unconstitutional by the United States Supreme Court in Randall v. Sorrell based on the notion that money is protected speech. The United States Supreme Court initiated this line of decisions with Buckley v. Valeo, continuing through Citizens United and more recent cases that take its logic even further. Recusal rules straightforwardly address the heart of corruption in democracy while entirely avoiding any entanglement in the convoluted and mostly improvised First Amendment reasoning of those decisions.
Outrage over Citizens United was initially directed toward advocacy of a constitutional amendment to permit restoration of election spending restrictions. However, the Supreme Court’s decision in Nevada Commission on Ethics means that updating our recusal rules provides a far easier and faster way for Vermont to begin to stamp out the corrupting influence of money on elections.
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In November 2014, the United States Supreme Court denied certiorari in Blum v. Holder, a lawsuit brought by the Center for Constitutional Rights (CCR) challenging the federal Animal Enterprise Terrorism Act (AETA) as a violation of the First Amendment. The plaintiffs were five
animal rights activists with long histories of participating in peaceful protests and nonviolent civil disobedience. They argued that the AETA is
overbroad, vague, and discriminatory on the basis of content and viewpoint.
The first section of the AETA punishes “caus[ing] the loss of any real or personal property . . . used by an animal enterprise.” Plaintiffs argued
that the statute makes no distinction between loss caused by unlawful or unprotected activity, such as arson and other property damage, and loss
caused by boycotts and other constitutionally protected activity. The briefing throughout the case largely debated whether personal property
includes profits, as distinguished from physical property. If it does, this lends credence to plaintiffs’ claim that the plain language of the AETA proscribes more than vandalism, theft, and other harm to tangible property, and further legitimizes their alleged chill from documenting agricultural conditions, organizing lawful protests, speaking at public events, and other protected expression aimed at harming the profits of animal enterprises.
One plaintiff alleged a distinct chill. She argued the AETA dissuaded her from engaging in a course of conduct that included both advocacy of illegal tactics and protests against specific individuals because, while each of these actions is constitutionally protected on its own, together they violate the AETA. These allegations were directed, in particular, at § (a)(2)(B) of the statute, which punishes “intentionally plac[ing] a person in reasonable fear of [death or bodily injury] . . . by a course of conduct involving threats, . . . harassment, or intimidation . . . .”
This plaintiff had good reason to fear prosecution under this section of the law. Five years before Blum was filed, in United States v. Fullmer, she had been convicted of conspiring to violate the AETA’s predecessor statute, the Animal Enterprise Protection Act (AEPA), for precisely this conduct: speech in the course of a campaign that included both advocacy of illegal tactics and protests against individuals. In Fullmer, this entire multi-year campaign was treated by the Third Circuit Court of Appeals as an illegal conspiracy to violate the AEPA. Additionally, the Third Circuit ruled that protest chants used by this Blum plaintiff, then a Fullmer defendant, were unprotected true threats—despite the fact that a Massachusetts court had previously ruled that the exact same chants were protected by the First Amendment and dismissed state indictments against this plaintiff. For her conviction under the AEPA and related charges, this Blum plaintiff was sentenced to 52 months in federal prison, 3 years of probation, and ordered to pay $1,000,001.00, jointly and severally with her codefendants, in restitution. Thus, in Blum, this plaintiff alleged that her speech had been chilled both because she was uncertain whether the speech she wished to engage in would be deemed protected and because the AETA unconstitutionally discriminates on the basis of content and viewpoint within the unprotected category of true threats.
That plaintiff in Blum and defendant in Fullmer was me.
There has been limited scholarly treatment of the grave First Amendment dangers raised by the Third Circuit’s affirming my and my codefendants’ (collectively, the SHAC 7) convictions. Though a smattering of law review articles have discussed the case, none has thoroughly probed the depths of the First Amendment problems in Fullmer—namely: (1) the Third Circuit’s reckless use of conspiracy to criminalize an entire protest campaign; (2) the court’s use of a protest campaign wherein some individuals committed illegal acts as context to deny First Amendment protection to nonthreatening speech and expressive activity; and, (3) an extensive factual record that belies many of the Third Circuit’s conclusions. Meanwhile, Fullmer has not gone quiet. Indeed, in Blum both the district and appellate courts repeated Fullmer’s sweeping and unsupported claims that the SHAC 7 defendants’ speech was evidence of illegal activity.
Almost a century ago, during the first Red Scare, the fervor of war and anti-socialist panic led a nation to prosecute hundreds of anti-war agitators based on nothing more than their words and associations—and the Supreme Court to (in)famously affirm the convictions it reviewed. Justice Brandeis and Justice Holmes are lauded for their (eventual) bold dissents from this line of cases and for articulating principles that ultimately prevailed and created robust protections for speech. Who will dissent from the Green Scare?
Activists and lawyers have been sounding alarms and defending against repression of the animal rights and environmental movements for over a decade. But they have been almost completely ignored by the scholarly First Amendment community. Despite the seriousness of the charges in Fullmer—terrorism—the nature of the evidence against the defendants—speech and expressive activity—and the gravity of the consequences—multi-year prison sentences and excessive financial lawyers, activists, and a journalist have written the few law review articles addressing the case. Meanwhile, industries and legislatures continue working to criminalize animal rights activism in an effort to silence a movement that challenges the inviolability of human dominance over, and violence against, all other species on Earth.
In March 2015, a federal court rejected another First Amendment challenge to the Animal Enterprise Terrorism Act. In United States v. Johnson, defense attorneys, including the Center for Constitutional Rights, moved to dismiss animal enterprise terrorism charges against two activists alleged to have released, and conspired to release, thousands of mink and foxes from fur farms in rural Illinois. The motion to dismiss argued that the AETA is unconstitutionally vague and overbroad, and that charging the defendants as terrorists for allegedly freeing animals was an unconstitutional denial of substantive due process. In July 2015, two more activists were indicted on AETA charges for allegedly freeing animals from fur farms and vandalizing property. As courts allow the AETA to stand, the way that such designer legislation was used in Fullmer is instructive. It reveals the reality of what activists face and fear due to the very existence of the AETA.
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The start of the Green Revolution was a time of optimism. Fueled by chemical fertilizers, new hybrid seeds, and a sense of moral righteousness, the Green Revolution increased field productivity through the magic of science and innovation. Yet this short-term miracle of technology has failed to deliver a long-term solution to malnutrition and food shortages. Concerned with feeding the largely disenfranchised and hungry populations of the Global South, the makers of the Green Revolution failed to contemplate that though their interventions would provide semi-reliable harvests for some of the poorest individuals in the world, they would also transform human agriculture into an industry largely defined by chemical dependency and ultimately diminishing yields Today, 40% of the 437 million farms in developing states that feed approximately two-thirds of the human population are dependent on Green Revolution technologies. In practice, the Green Revolution simultaneously succeeded and failed. It succeeded for the earliest generations or poor communities who benefited from the extra crop yields, but it is failing the current generation that is left with a legacy of contaminated soils and waters.
The continued need to achieve the high yields associated with the Green Revolution becomes increasingly important when contemplating current rising global demographic trends. The United Nations Food and Agricultural Organization (FAO) predicts that a 70% increase in food may be needed to feed the increasing population. In response to increasing population projections, States have chosen to invest in known conventional food security strategies rather than explore less-tested strategies that might achieve both food security and environmental security. For example, the market for nitrogen fertilizer, a key input for the Green Revolution, is predicted to reach an all-time global production high of 200.5 million tons in 2018—24% more than the global usage in 2008. Much of this usage is concentrated in states with large populations, such as China, where the rate of fertilizer application has increased four-fold over about three decades. Applying large amounts of agricultural fertilizer to achieve industrial-level crop yields has profound implications for the environment, including substantial contributions to both global greenhouse gas emissions and contaminated water tables.
This Article asks whether states in pursuit of cheap outputs of food to feed burgeoning populations should continue to pursue status quo domestic food security strategies that are likely to threaten long-term environmental security. More production promotes immediate food security, but governments also have human rights obligations, including the duty to respect, promote, and fulfill both the “right to food” and the “right to a clean and healthy environment.” Existing industrial food production strategies pose legitimate threats to achieving long-term food security objectives. Part I of this Article reviews the impact of industrial food production on environmental resources. Part II explores the intersection between the human right to food and the human right to a clean and healthy environment. Part III proposes additional legal interventions in support of strategies for ensuring the full realization of both the right to food and the right to a clean and healthy environment.
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Raquel Aldana & Randall S. Abate
Metal mining is not big business in Guatemala. It generates less than one percent of the country’s gross national product and employs less than one percent of the official workforce in the country. The metal mining industry has also been in decline since 2012, and a significant subpart of the industry will disappear completely in a matter of decades when all of the gold, silver, and other metals have been extracted.
For such a small industry, metal mining represents a giant problem for Guatemala. Metal mining has generated chaos in the country and provoked ire among many within and beyond its borders. Metal mining in Guatemala is controversial for significant reasons. First, at an alarmingly quick pace, metal mining is destroying much of the country’s beautiful environmental resources. Second, this destruction is occurring largely without the consent of the affected communities—both indigenous and non-indigenous. For these communities, the few benefits—mostly in the form of jobs with higher wages for some of the local residents—pale in comparison to the short-term and long-term harms. In the short term, residents in metal mining communities are disturbed by noise; sickened by contamination; impoverished by reduced water supply and food production; divided by conflict even among friends and family; and criminalized and physically harmed during protests. In the long term, water depletion and contamination linger, mountains and landscapes disappear, and the jobs and monies that mines brought dissipate. The affected communities—and the entire country as a result—are left with an even bleaker future than prior to exploitation, literally and figuratively.
These environmental and human rights harms alone justify a rejection of the industry in Guatemala. The disdain for metal mining, however, lies exactly in the reasons for its presence in the country. Why is an industry that represents such an insignificant economic investment and with such destructive characteristics allowed to operate in the country? The answer is cynical but tragically true. Metal mining makes a great deal of investment sense to the foreign investors and shareholders and to the economic elite and self-interested politicians who profit from it. In turn, as a struggling democracy with weak laws and institutions, but strongly favorable investment laws and practices, Guatemala is the ideal host for the continuation of corporate practices that are senseless and destructive.
This same assessment of metal mining in Guatemala applies across the region and globally, particularly in developing nations with similar democratic and social struggles. It also applies to several other types of industries that extract natural resources or cheap labor for global consumption. Unlike Guatemala, however, some of these nations are stepping back and instituting important reforms to limit or ban certain types of mining. There are important lessons in these reforms for Guatemala.
This Article proposes recommendations for managing Guatemala’s metal mining problem. It proceeds from the premise that metal mining is a bad investment for Guatemala, at least in the short term. Metal mining is never a sustainable practice for any country because metal is an exhaustible and non-renewable natural resource and its extraction is inherently toxic and destructive. There is a legitimate argument that metal mining may be necessary for development and that it could be done in ways that significantly reduce the harms to the environment and communities. This Article does not address whether or how Guatemala might choose to engage in metal mining in the future. Rather, it asserts that Guatemala is ill prepared to implement a metal mining regime that makes sense for the country at this time. Guatemala is now grappling—in good ways—with significant and visible democratic problems. For the first time in the near decade of the United Nations Commission against Impunity’s (CICIG) operation in Guatemala, its investigations are finally exposing the shameful and cynical acts of corrupt politicians. Not a single Guatemalan is surprised by the dirty secrets the CICIG’s wiretaps and secret recordings revealed. Several high-level officials resigned following the revelations, including the Vice President and the President who now face criminal charges for their acts of corruption. This alone represents remarkable progress for Guatemala.
These potentially monumental transitions in Guatemala, however, do not guarantee real and sustained reforms in the country. Today, nearly 20 years after the signing of an ambitious peace agenda, Guatemala is nowhere near a strong enough democracy as it needs to be to manage metal mining in order to minimize harms and maximize benefits for its citizens. Much needs to happen first, including electoral reform, eradication of deep inequality, greater transparency in public spending, and tax and social spending reforms. This Article addresses the primary concerns that pertain to mining: reforming the 1997 Mining Law; the need to regulate water and the consultative process; and the need to improve transparency in tax collection, public spending, and social investment, particularly as it relates to the mining industry. These reforms must occur in tandem with the broader and systemic reforms already mentioned if metal mining is to be successful. Until then, Guatemala should consider banning metal mining in the country. This course would not be unchartered territory in the region. Other nations, with Costa Rica as one of the best examples, have paved the way.
Banning metal mining in Guatemala, even if temporarily, will likely face fierce opposition from investors and potentially from Guatemala’s important trading partners. Guatemalans would be right to be concerned about two possible negative consequences from the decision to ban or limit metal mining: (1) companies already holding exploration and exploitation licenses could sue in international tribunals or foreign courts for millions alleging expropriation; and (2) Guatemala could damage its relationship with Canada, the United States, and other potential trading partners and international economic institutions. This Article addresses strategies and defenses for banning mining in Guatemala in response to expropriation claims in international tribunals. Also, it proposes standards and norms that arbitrators should apply to resolve these claims. As to the second concern, the potential impacts on trade and investment might be exaggerated and overstated. Guatemala nonetheless should explore alternatives for sustainable development that would be better for the country in the long term. Costa Rica’s ecotourism industry serves as a model for Guatemala in this regard.
Part I of this Article explains the nature and scope of the metal mining industry in Guatemala. It also examines the environmental, health, property, and social impacts of metal mining and discusses the unbalanced costs and harms of the industry under Guatemala’s status quo. Part II documents the challenges and gaps in the existing domestic and international legal frameworks that attempt to regulate metal mining activities in Guatemala. Part III proposes an incremental model for Guatemala to address its metal mining problem. First, this Article recommends that Guatemala exercise its sovereign right to adopt a law banning all future metal mining concessions. Second, Guatemala should rely on existing domestic laws to close the mines in order to mitigate the substantial damages resulting from these activities. Under either approach, Guatemala is likely to face investor liability in the millions, and perhaps lose future investment in the country. This Article offers Guatemala suggestions for defending and mitigating these costs by relying on comparative studies of similar actions taken by Costa Rica and El Salvador.
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Every year, there are about 14,000 oil spills within the United States alone. There are approximately “25 spills per day into navigable waters and an estimated 75 spills on land.” Yet few Americans could name more than one or two of the largest oil spills and, for the most part, are oblivious to the rest. The actual number of oil spill incidents is astounding, and the fact that the overwhelming majority of these spills are allowed to go unnoticed by the nation is especially alarming. The shroud of secrecy drawn by oil corporations, and the public’s lack of access to accurate information, ensures that people will remain complacent in their attitudes regarding oil activities, and as such, will not advocate for changes in our energy production and transport.
When the public does become aware of an oil spill, powerful energy corporations remain free to tout their philanthropy as they clean up the spill and spread misinformation about the extent of the damage. With the current approach, the ultimate impact of a spill and potentially its very existence remain unknown to the general population. Although under the Oil Pollution Act oil companies must pay fines and face other sanctions after a spill, as part of their retribution, they should also be required to provide full disclosure to the public about the spill, using information gathered from independent researchers, not their own hires. As courts continue the trend of treating corporations like individuals, enhanced and unique punishments for largely avoidable environmental catastrophes become imperative.
Borrowing a proven method of remediation from criminal law, this deterrent should take the form of public shaming, through a requirement to accurately publicize oil spills. This will have a direct and meaningful impact on corporations that heretofore would have relied on secrecy and misdirection to mitigate their responsibility. The ultimate goals of public shaming are deterrence, public awareness, and accurate publicity of oil spill disasters. Public shaming provisions would have the effect of making oil companies and their practices more transparent, as well as permitting the public to make more informed decisions, and courts to levy fines and sanctions that accurately reflect a spill’s real damages. The result of public shaming and the tandem education of the populace may ultimately tip society toward less damaging forms of energy, such as solar, electric, and wind. So long as oil companies keep the public in the dark, the status quo will continue. To better address oil pollution in our country, Congress should include public shaming and independent monitoring during a spill in the Oil Pollution Act.
This Note proceeds in two parts. The first section discusses three oil spill incidents. The first, the Exxon Valdez, set the stage for modern oil pollution control and legislation. The Deepwater Horizon spill chronicles the outcomes of a modern large-scale oceanic spill. The third spill, a largely unknown pipeline spill in Tioga, North Dakota, illustrates the practice of corporate secrecy and the need for public awareness after a spill.
This Note’s second section explores a method of punishment for oil polluters that both sanctions the violators and engages the public, thereby encouraging people to use their voices and consumer power in response to a spill. This section argues that the Oil Pollution Act must require public shaming of oil companies to bring greater public attention to spills. The shaming will take unique forms, and the information used to shame the companies responsible for the incidents will originate from third-party observers, rather than from within the companies themselves. This Note urges Congress to incorporate public shaming into the Oil Pollution Act in order to increase public awareness of oil spills and the environmental dangers they cause.
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Climate change has become an active intersection of environmental and human rights law. At the global level, the United Nations Framework Convention on Climate Change (UNFCCC) was created to respond to climate change’s impacts on humans, first by setting greenhouse gas (GHG) mitigation norms to prevent or limit atmospheric warming. More recently, the UNFCCC’s added focus on adaptation recognizes the changes already in play and their disproportionate impact on vulnerable populations. But, while the UNFCCC reflects concern for human rights, neither the original framework convention nor its Kyoto Protocol contains explicit references to specific human rights or human rights laws.
Likewise, early human rights law did not express a right to a healthy environment. The 1948 Universal Declaration of Human Rights and its two covenants adopted in 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), lacked references to specific environmental rights. The first connection between the right to life and the need for a healthy environment appears in the 1972 Stockholm Declaration, which proclaims the natural environment is “essential to . . . the right to life itself.” Since then, many countries have codified the right to a clean and healthy environment in their national constitutions or have become parties to regional conventions that include this right. John Knox, Special Rapporteur on Human Rights and the Environment, has observed “a rapid ‘greening’ of human rights law” as human rights bodies have interpreted the rights to life and health as requiring states to protect the environment. Yet, despite this progress, there still is no global human rights agreement that explicitly includes a right to a healthy environment.
Climate change catalyzed the human rights community to bridge this gap. Human rights groups mounted a campaign advocating for explicit human rights protections in the international climate change agreement adopted in Paris on December 12, 2015. Beginning with the UNFCCC’s sixteenth Conference of the Parties (COP16), held in Cancun, Mexico in 2010, the Convention’s Parties expressly acknowledged climate change’s impacts on human rights. Beginning in 2011, negotiations opened for a new agreement to succeed the Kyoto Protocol in 2020 and they have included human rights language in multiple working drafts. The final Paris Agreement includes express reference to human rights in its preamble. Even though references in operational provisions of the draft agreement were deleted, the Paris Agreement represents the first multilateral environmental agreement to recognize explicitly the intersection of human rights and climate change.
The Paris Agreement also embodies a sea change in international climate change governance. By focusing on “bottom up” nationally determined actions and not on “top down” global mitigation targets, it invites all countries to act on climate change domestically within a treaty architecture that carefully calibrates national sovereignty with international objectives. This evolution in the nature of the UNFCCC Parties’ obligations to one another began at COP15 in Copenhagen in 2009 and gained momentum at COP16 the next year. It culminated at COP17 with the creation of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) and its mandate to “develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties” by the end of 2015 at COP21. Thus, at the same time that the relationship of human rights to climate change was under negotiation, so too was the fundamental framework of legally binding UNFCCC commitments.
In December at COP21, the 196 Parties adopted an outcome that creates a structured process for pledging and reviewing nationally determined but internationally promised actions. These actions go beyond mitigation to address adaptation, finance, capacity building, and technology development and transfer—essential components for developing countries to contribute to international climate change mitigation and adaptation according to their “common but differentiated responsibilities and respective capabilities.” The Paris Agreement requires each Party to individually determine and pledge what it deems to be a “fair” contribution, which is then publicly registered on an UNFCCC website. It also requires the Parties to collectively review these pledges, and measure the group effort against the objective of keeping global warming to at least “well below 2°C.” Finally, in a virtuous cycle, it requires Parties to revise pledges every five years in light of collective progress on the global goal and to increase the fairness and ambition of these national pledges each time.
Many have lauded this new approach for its ability to bring all developed and developing country parties into a common and transparent framework of balanced commitments. At the same time, experts recognize that holding sovereign nations accountable for their treaty obligations is hard. The UNFCCC and Kyoto Protocol have used consultative review of Parties’ progress on their commitments to ensure compliance. This approach aims to identify barriers to implementation, share best practices for overcoming them, and lead sovereign decisions to adopt them. But this compliance mechanism did not keep Canada from withdrawing from the Kyoto Protocol during the first commitment period when faced with not achieving its 6% reduction commitment. Likewise, it did not stop Japan, New Zealand, and Russia from choosing not to join a second commitment period. The question now becomes whether the Paris Agreement’s nationally-focused approach can change this dynamic and lead countries to make the hard political and economic domestic changes more than the Kyoto Protocol did.
This Article argues that it can because the very nature of these nationally determined pledges offers new avenues for holding UNFCCC Parties accountable for their international contributions. Where facilitative compliance mechanisms between sovereign treaty members fall short, enforcement actions under domestic laws for the implementation of national pledges developed through international negotiations have potential to fill this accountability gap. How? By focusing on national strategies when formulating their international contributions, Parties necessarily build on national policies and laws. These domestic levers provide political and legal pressure points for advocates seeking to hold their countries responsible for honoring international commitments. For example, civil society organization leaders, like Bill McKibben, underscore the role of national citizen engagement and political activity in nationally determined contributions (NDC) implementation post-COP21.
Recent national climate change suits in UNFCCC member countries build on this political will and show how existing domestic laws can be used to hold Parties accountable for their internationally pledged national contributions. For example, the NGO Urgenda drew on the Netherlands’ tradition of making human rights justiciable in court when it successfully argued that the government’s international climate change pledges were below its capacity and thus failing to protect its citizens’ rights to life and health under national tort law. The June 2015 trial court decision ordering the government to increase its pledges was the first to use domestic law to hold a UNFCCC Party accountable for its international commitments. This case resonated loudly in the climate change advocacy community in the three months leading up to COP21’s negotiations. It is regularly cited as one example of what Marcos Orellana described as using human rights law as a “new tool to address contemporary realities.” Since then, administrative and judicial actions have been filed in six other UNFCCC party countries. There has not been such a spike in cases since the early climate change litigation boomlet in the United States and Australia in the early 2000s. Each of these recent cases seeks different remedies, under different kinds of national laws, with some based on human rights law and some based on domestic climate change legislation. But they all share a common litigation strategy: use international climate change norms to hold individual countries accountable through their domestic courts.
This kind of national litigation will only grow as the dust settles on the Paris Agreement.24 First, the new “bottom up” orientation of international climate change law places authority in nation states for determining the content of these pledges and hence opens the door for making enforcement claims based on the domestic laws and policies used to create them. Second, the absence of a world climate change tribunal or other specific enforcement mechanism in the new Agreement makes domestic courts an attractive venue for addressing non- or low-performance of national obligations. Third, the transparent submission of NDCs will provide ample, available information for bringing suit. Fourth, NDC analysis by third parties like the NGO Climate Action Tracker and the UNFCCC Secretariat, along with the IPCC’s reports on mitigation pathways needed to stay within a predicted carbon budget, provide expert evidence on global norms that national courts may draw on. While threshold procedural issues may impede litigation on the merits, these suits individually—and more so en masse—place the spotlight on national efforts to achieve their NDCs.
To reach these conclusions, this Article first chronicles the growing acknowledgment of climate change’s impacts on human rights and how this movement affected the COP21 negotiations. It next puts this human rights advocacy campaign into the broader context of the new Agreement architecture at the heart of the negotiations. The Article then describes the six national cases brought to date, and analyzes how they use international climate change norms when making domestic law claims. Finally, it concludes with several observations about how the Paris Agreement’s NDCs may ultimately lead to greater treaty compliance via nationally determined enforcement. This method can complement the facilitative international compliance mechanisms inscribed in the new Agreement while closing the accountability gap. In doing so, it also puts into practice the aspirational human rights language in the Paris Agreement’s preamble.
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Over the past decade, unconventional oil and gas plays have revolutionized the domestic oil and gas industry. Oil and gas are, of course, finite natural resources. They can be developed only so long as they can feasibly and economically be extracted from the ground. Not so long ago, many experts predicted that the world had reached or would soon reach peak oil—the point where humans had used more than half of the recoverable hydrocarbon resources. Further development would presumably occur under the cloud of mining an ever diminishing resource that was more difficult and expensive to access. While a few naysayers remain, talk of peak oil seems to have largely gone away. This change in perspective about oil and gas resources has come about almost entirely because of the evolution of horizontal drilling and the recognition that such drilling when combined with fracking of low permeability rocks, especially shale rock, can yield commercial quantities of oil and gas at a reasonable cost. Suddenly, the development of hydrocarbon resources that had seemed so implausible only a few years earlier became accessible, and before long these “unconventional” oil and gas resources proved to be lucrative new sources of oil and gas.
But with the new technologies and the resulting rush to develop unconventional resources have come a new series of environmental challenges that have yet to be resolved. With horizontal drilling comes highpressure hydraulic fracturing, or “fracking”. And developing these fracked wells presents a range of environmental problems that, in many cases, go well beyond the problems associated with conventional oil and gas development. Although fracking itself has been around for more than half a century, fracking a horizontal well that might be two or three miles long in a lateral direction requires the use of significant quantities of fracking fluids at extremely high pressures—far more water introduced at far higher pressures than are used to frack a conventional well. These big frack jobs typically require multiple pump trucks to create the pressure, and hundreds of water tanker trucks to deliver the fracking fluids. A substantial portion of that fracking water will return to the surface as “flowback,”4 accompanied by many new contaminants including volatile organic compounds. This flowback must be carefully managed to minimize the risk to humans and wildlife from water and air pollution.
Notwithstanding the many new problems often attending horizontal drilling, there is a silver lining because unconventional development actually offers many potential advantages in terms of minimizing environmental impacts. These advantages and the means for realizing them are described in conjunction with an assessment of the environmental problems in Part III of this Article.
Beyond well development itself, much infrastructure is needed to support unconventional oil and gas development, including, for example, compressor stations for natural gas, storage tanks to hold the recovered resources, and gathering lines and pipelines for transporting them to market. All of these facilities pose their own environmental challenges, especially for protecting air quality and the health of people who live, learn, and work near oil and gas development.
To be sure, many of these problems exist with conventional oil and gas development. But the breakneck pace of unconventional development in some parts of the country, and the special problems that such development poses, have so exacerbated the environmental risks and so inflamed some communities that they are increasingly drawn to efforts to enact outright bans of oil and gas development, or its chief surrogate—fracking.
This Article is offered to engage policymakers, community leaders, and the oil and gas industry on ways to retool unconventional oil and gas development to better protect communities and oil and gas workers, even while promoting the efficient development of oil and gas. It begins with a description of unconventional oil and gas development and the technologies that have evolved to support it. This is followed by a lengthy discussion of the environmental problems associated with that development. Even as the environmental costs are considered, however, the Article acknowledges the substantial opportunities that unconventional development offers for more sensible and cost-effective production of oil and gas resources. In addressing these costs and in laying out the opportunities, the focus is on better planning, and the need for regulators to become more proactive in their approach to regulating oil and gas development.
Four particular categories of impacts are addressed: (1) surface impacts; (2) impacts on water resources; (3) air quality impacts; and (4) community impacts. In the course of laying out these impacts, this Article proposes various strategies for responding to them with a particular focus on the necessity of good planning. The Article concludes with additional recommendations for designing an effective and adaptive regulatory program for unconventional oil and gas resource development.
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I want to thank Vermont Law School, Vermont Law Review, and the organizers of this Symposium, “Habitat for Human Rights,” for bringing us together to discuss this important topic. It is commonly assumed that environmental protection and human rights go hand in hand. And on the ground, they normally do. But environmental law and human rights law do not always work together, or further their stated aims. In the Amazon Rainforest in Ecuador, the effectiveness of environmental law and human rights law is undermined by the failure to recognize and address historical legal structures and policies that seek to dominate Indigenous peoples and continue to shape the law. I’d like to begin by highlighting three general scenarios where environmental and human rights laws intersect, and then talk about the indigenous Huaorani communities I work with, who have organized themselves to defend their habitat as human rights in the area now known as Yasuni National Park and Biosphere Reserve, in the Amazon Rainforest in Ecuador.
I. HUMAN RIGHTS AND THE ENVIRONMENT
A first scenario where human rights and the environment intersect is when the human rights of environmental defenders are violated. This can include rights violations that take place outside of the law, such as arbitrary detention and excessive use of force against protesters. It can also include use of the law to violate human rights, such as when governments criminalize dissent and repress freedom of expression by using criminal defamation or overly-broad counterterrorism laws to prosecute protestors and influential critics.
A second scenario where environmental and human rights law intersect is when environmental degradation is a source of human rights violations. The question of what types, and extent, of environmental degradation rise to the level of human rights violations is complicated when approached from an environmental law perspective. This is because international law is based on agreement among States, while environmental law is dynamic—it can change and evolve. In addition, not only do the details of many environmental norms differ from place to place, but also, at a more general level, some States maintain that so-called developing nations should not require the same level of environmental protection as wealthier nations.
For example, we hear a lot of talk about international standards for oil extraction operations. But there is no clear body of international environmental rules. At the national level, standards vary. And here, in the United States, even national standards are limited and important environmental norms can differ from state to state.
As a result, it is difficult to define precise environmental standards that have international consensus, and that is one reason why customary international environmental law is so limited. But human rights law could help address this challenge in some circumstances by providing a shared performance-based standard: basically, that environmental degradation is not acceptable when it violates human rights. And as we heard in this morning’s Keynote Address, human rights law has been able to maintain universality despite some differences.
In 1997, the Inter-American Commission on Human Rights (IACHR, or the Commission) published a report with a groundbreaking analysis linking environmental contamination and human rights. The report examined human rights in Ecuador, and included a chapter on the situation of people affected by oil extraction in the Amazon region that focused on the ability of local residents “to realize their rights to life and physical security in an environment that has been subjected to severe environmental pollution.”
The Commission began its analysis of relevant Inter-American human rights law by recognizing that “[t]he realization of the right to life, and to physical security and integrity [as protected by the American Declaration on the Rights and Duties of Men and the American Convention on Human Rights] is necessarily related to and in some ways dependent upon one’s physical environment.” “Accordingly,” the Commission reasoned, “where environmental contamination and degradation pose a persistent threat to human life and health, the foregoing rights are implicated.”
The Commission further noted that Inter-American human rights law recognizes “the interrelationship between the rights to life and health;” that “[t]he right to have one’s life respected is not limited to protection against arbitrary killing;”10 and that “[r]espect for the inherent dignity of the person is the principle which underlies the fundamental protections of the right to life and to preservation of physical well-being.” It concluded that “[c]onditions of severe environmental pollution, which may cause serious physical illness, impairment and suffering on the part of the local populace, are inconsistent with the right to be respected as a human being.”
The Commission also found that, in this context,
protection of the right to life and physical integrity may be best advanced through measures to support and enhance the ability of individuals to safeguard and vindicate those rights. The quest to guard against environmental conditions which threaten human health requires that individuals have access to: information, participation in relevant decision-making processes, and judicial recourse.
The Commission did not define “severe” pollution or “serious” illness, or explain how much increased risk of disease and suffering is too much. But the Commission did find that, in the case of Ecuador’s Amazon region, “‘[d]econtamination is needed to correct mistakes’” that should not have happened, that both the State and the oil companies are responsible for correcting those mistakes, and that the State has a duty to ensure that they are corrected.
The Commission also recognized—in a separate chapter examining “human rights issues of special relevance” to Indigenous peoples—that additional human rights violations occur when Indigenous peoples maintain special ties with their traditional territories and are displaced, or when those lands are degraded.16 This is because “the control and use of territory are essential” to the physical and cultural survival of Indigenous peoples, and to their “individual and collective well-being.”
So when we think about the nexus between human rights and environment, and what that means for Indigenous peoples, the environment is not only a source of life-sustaining services, such as food, water, air, and so on, which are essential for life and the full enjoyment of human rights— or, as the organizers of this Symposium aptly put it, a “habitat for human rights.” I love this title (of the Symposium) because it reinserts human beings and their communities into the landscape, and reminds us that human rights are linked to environmental quality, and that we need to think not only about violations of human rights and litigation after those violations occur, but also about preventing violations and safeguarding human rights.
I would like to take this concept further by passing on something I have learned about human rights from the Huaorani. For Indigenous peoples who live on the land, habitat is human rights. It provides the resources that sustain life—and much more. It is also a space, a territory and living environment through which, and in which, Indigenous peoples can realize their cultural, social, economic, and political rights. In other words, it is a space where Indigenous peoples can exercise genuine self-determination or, as the Huaorani say, “live as Huaorani, in freedom.” And without it, they cannot survive.
A third scenario where environmental and human rights laws intersect is when environmental initiatives affect Indigenous peoples and their traditional lands, territories, and resources. We hear a lot about how environmentally harmful “development” violates the rights of Indigenous peoples. And for good reason: it is a serious and widespread problem.
But a growing number of Indigenous communities are also concerned about environmental initiatives that empower outsiders to make decisions about their territories, lands, and resources, and fail to respect their rights. For example, in some places, people have been displaced from traditional lands for the cause of wildlife conservation. In other areas, conservation bureaucracies and nongovernmental organizations (NGOs) impoverish Indigenous communities and violate or threaten their cultural, subsistence, and other rights when they seek to manage protected areas that were superimposed on Indigenous lands without consent. They are seen as just another colonizer.
So there is a need to include respect for human rights in environmental initiatives. This means more than adding a traditional knowledge annex to a conservation project plan, or using Indigenous plaintiffs in a lawsuit. It means truly understanding, and respecting, the priorities of the affected communities and how they want to work with outsiders. And it means avoiding the pitfalls of taking an overly dominant role and excluding local community members from decisionmaking. This can be especially difficult when litigation is involved, or when the interests of local communities are perceived as being in conflict with conservation interests. But it is necessary.
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Brian L. Porto*
Professor Anthony Renzo passed away on Sunday, November 1, 2015 surrounded by his family after a long fight with cancer.
Tony Renzo’s brave spirit watches over us and encourages us as we go about the important work of training lawyers at Vermont Law School. His continued presence became clear to me just a few weeks after his death, as I prepared for the spring semester by compiling a course packet for Legal Writing II, a course Tony taught often and well. Flipping through the completed packet to make sure the pages were in order, I happened to focus on the following words at the beginning of one Eighth Circuit case: “Anthony Renzo, Des Moines, Iowa for the Plaintiff.” Missing the conversations I had enjoyed with Tony while we were colleagues, I smiled at seeing his name in print, consoled a bit by knowing that he would accompany my students and me through Legal Writing II, inspiring me to inspire them by setting high standards, yet offering warm encouragement.
The case that Tony argued before the Eighth Circuit featured a freespeech claim against an Iowa school district by a high school student who had been dismissed from the basketball team for criticizing her coach. Seeing his name among the participating attorneys reminded me of who he was and of the considerable assets he brought to the legal academy. Tony was a passionate defender of individual rights who cared deeply about the people he served and a veteran litigator whose advocacy skills had been tested repeatedly in courtroom combat. Law professors are often criticized for not having been “in the arena,” but nobody could say that about Professor Renzo.
Indeed, Tony’s experience as a litigator paid enormous dividends for his students upon his arrival at Vermont Law School in 2001. The best indicators of that are the testimonials to Tony’s inspirational teaching offered by his former students. The testimonials reveal that when he taught, Tony wielded a velvet hammer; that is, he demanded excellence and did not tolerate slackers or whiners, but he always cushioned his critiques with, in one former student’s words, “a healthy dose of encouragement.” Other former students have recalled Tony’s “kind heart and indomitable spirit,” “endless patience for questions,” and “constant reminders to write clearly and succinctly.” One graduate remembered his adherence to the famous maxim of Justice Louis Brandeis: “There is no such thing as great writing; there is only great rewriting.” But Tony received perhaps the ultimate complement a legal writing teacher can ever receive from the former student who wrote, “I brood over words because of you.”
Tony’s considerable experience as a litigator enabled him to impart priceless lessons about oral and written advocacy to his students in Legal Writing II, Appellate Advocacy, and the Civil Rights Litigation seminar, and to the members of the Emory Moot Court Competition team, which he coached. As a professor, he transferred to his students the loyalty he had previously shown to clients, prompting the affectionate and grateful reminiscences noted here. But Tony also became a scholar, producing several probing articles like the one that follows. His writings remind us of the need for democratic societies to check government’s urge to sacrifice individual liberties on the altar of security when faced with perceived
Thus, Tony’s rich professional life encompassed the roles of advocate, teacher, and scholar. But I will also remember him as my colleague and my friend. Indeed, I will always remember his laughter, as we shared lateafternoon stories about places we had been, people we had met, and lessons we had learned earlier in life. Both of us were befuddled, and a bit chagrined, by the increasing dominance of technology in our daily work lives, but we usually ended up laughing about those feelings, too. And that is how I will remember Tony: smiling, laughing, and saying, “Have a good weekend, Partner.” A deep humanity always tempered his professionalism, and that humanity makes me grateful to have known him.
*Professor of Law, Vermont Law School. B.A., University of Rhode Island, 1974; Ph.D., Miami University (Ohio), 1979; J.D., Indiana University-Bloomington, 1987.
For Tony Renzo Remembrances, please visit the page here (last visited Feb. 29 2016).
Anthony F. Renzo*
James Thompson was born in Denver, Colorado in 1966. At the age of five he moved with his family to Seattle, Washington. As a young adult, Thompson changed his name to Earnest James Ujaama and converted to Islam. He was recognized for his work with gangs and troubled youth by the City of Seattle, which awarded him the key to the City. Washington State lawmakers declared June 10, 1994 “James Ujaama Day.” In addition to his community service, Ujaama authored three books on youth entrepreneurship. On July 22, 2002, Ujaama was arrested by federal agents at his aunt’s house in Denver. He was imprisoned without judicial processfor several months in Virginia and was later charged with various offenses, including aiding terrorist organizations.
Like Ujaama, Ali al-Marri was arrested in the United States on December 12, 2001 as part of the investigation into the September 11 attacks. Al-Marri, a Qatari national lawfully residing in Peoria, Illinois, was indicted and charged as a civilian in the Federal District Court for the Southern District of New York with offenses related to aiding terrorist organizations. The case was transferred back to Peoria and scheduled for trial beginning on July 21, 2003. On June 18, al-Marri moved to suppress evidence allegedly obtained in violation of the Fourth Amendment, and an evidentiary hearing was set for July 2. On June 23, the government presented the court with an order signed by President Bush designating al-Marri as an enemy combatant and dismissing the indictment.10 Al-Marri was then transferred to military custody, where he has been detained for over three years awaiting trial by military commission.
The Bush Administration has claimed constitutional authority to subject persons detained in the United States, including U.S. citizens, such as Ujaama, and legal-alien residents of the United States, such as al-Marri, to trial by military commission if the executive branch decides that the detainee is an “unlawful enemy combatant” who has violated the law of war. On June 29, 2006, in Hamdan v. Rumsfeld, the Supreme Court held that the Authorization for Use of Military Force (AUMF), passed by Congress in the wake of the September 11 terrorist attacks, impliedly authorized the President to create military commissions for enemy combatants “in appropriate circumstances” and subject to the limitations of Articles 21 and 36 of the Uniform Code of Military Justice (UCMJ). Although the Court in Hamdan declined to make a specific ruling as to whether the President has the inherent Article II authority in the absence of action by Congress to convene law-of-war military commissions, the majority nonetheless stated that “authority [to establish military commissions,] if it exists, can derive only from the powers granted jointly to the President and Congress in time of war.” The Hamdan majority recognized that the issue of military-commission trials raises “important questions about the balance of powers in our constitutional structure,” and Justice Kennedy in his concurring opinion cited “the risk that offenses will be defined, prosecuted, and adjudicated by [the Executive] without independent review.”
In addition to addressing the balance of power between Congress and the President, the Court in Hamdan reaffirmed that Congress’s power to create military tribunals, including military commissions, is subject to constitutional limitations. The baseline constitutional limitation that governs this issue was drawn 140 years ago in the Supreme Court’s landmark decision Ex parte Milligan. Milligan and its progeny established that the Constitution’s jury-trial guarantees prohibit the military trial of a detainee apprehended within the jurisdictional reach of operational Article III civilian courts unless, during wartime or other national emergency, the government convinces those same civilian courts that the detainee is not a civilian but an enemy combatant. To show enemy-combatant status, the government must prove that the prisoner is a member of, or acting under the command of, the enemy’s armed forces. Hence, if the detainee is a civilian, that detainee-civilian is entitled to a trial by jury in a civilian court
in the absence of a complete breakdown of the institutions of civil government rendering the civilian courts unable to function. On the other hand, a detainee found to be an enemy combatant is subject to military jurisdiction, including the trial of any alleged criminal offense by military tribunal. This Article will demonstrate that a military commission convened in areas where Article III courts are open and functioning has no jurisdiction to try a detainee unless the civilian courts have determined that the detainee is properly classified as an enemy combatant and not as a civilian.
Part I of this Article provides a short overview of the well-settled constitutional principles that govern military trials of civilians. Part II traces the origins of the Constitution’s jury-trial guarantees. Part III provides a brief history of the use of military tribunals in America since its founding. Part IV explains why Congress does not have the power under the Constitution to authorize military tribunals to try civilians during war or other national emergency. Part V explores the law-of-war distinction between the legal categories of “enemy combatant” and “civilian.” Finally, Part VI demonstrates that the government’s use of military commissions in the war against terrorism is subject to judicial review to ensure that Article III and Sixth-Amendment rights of trial by jury have not been infringed.
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*This article was originally published in Vol. 31 of the Vermont Law Review and can be found at 31 VT. L. REV. 447 (2006). The citations have been slightly edited to bring them in line with current citation standards and to update URLs that have been taken offline in the intervening years. The sources used were those available to the author at the time of publication.