Students across college campuses are protesting war again and police are breaking up and arresting protesters.[1] American students, part of a global movement, are protesting the genocide occurring in Gaza and the war being waged against Palestinians. Those opposed to students protesting Israel’s war in Gaza frame the issue as a surge of antisemitism.[2] Those protesting demand that their academic institutions disclose and divest from companies facilitating Israel’s war in Gaza.[3] Protests create disruption to bring attention to serious, pressing issues. States, universities, employers, and other institutions regularly use police to break up the protests. State legislatures frequently grapple with how to draft legislation to stop protesters, popular political movements, and uprisings.[4] Attempts to legislate the parameters for protest are doomed to fail. The issue for protesters when governments create parameters for protest is this: if protesters remain lawful and within dictated “peaceful” activities then the protest itself becomes controlled dissent and can be ignored or dismissed. Some rule breaking is either necessary or inevitable if a protest’s argument is going to reach the ears it needs to. Kwame Ture,[5] a critic of peaceful, nonviolent protest, opined to this issue, stating: “in order for nonviolence to work, your opponent must have a conscience, the United States has none.”[6] Kwame Ture’s point resonates today with those disillusioned by the persistent and effective diffusion of popular political movements from urgent calls for change to vapid platitudes repeated by politicians running for office.
In Missouri, the state where Michael Brown was murdered by police, the state house passed a bill in 2021 that criminalized protesting in streets—a response to calls to defund the police.[7] The bill was a reaction to Black Lives Matter protests that occurred after the murder of George Floyd.[8] State Representative Rasheen Aldridge said “if this bill goes into effect, I’m not going to stop protesting, so I hope that I can continue to serve in this body when you try to get me a felony.”[9] The intention of the bill is apparent: make the most common tactic of Black Lives Matter protesters illegal. Assuming that disobedience is central to civil disobedience, this bill points to a specific protest tactic and makes it illegal, seemingly elevating the profile of a disobedient act. This illustrates the adage that best way to make someone look is to say, “don’t look.” Attempts to ban types of protest highlight the targeted protest as effective to organizers. If the aim is to stop a certain tactic, any such bill will backfire. Rather, if the aim is to allow police to use their monopoly on violence against protesters, organizers will find new methods of disruption.
When states or universities create parameters or criminalize protest tactics, protesters either obey or disobey. Those who disobey, engage in civil disobedience. Those who obey have the message of their protest channeled into a means which the authority decides. As someone who has protested before and will likely again, it feels as though the constrained parameters in which Americans can voice public opposition are designed to make the protests ignorable. Governments, businesses, universities, and any other institutions which exert authority over people do not change without being pushed. Sometimes that push is based in the interests of the institution, sometimes it is a moral conscious saying what it must. The true peril facing protesters apart from the threat of state violence, is not being charged with trespassing, it is the very real possibility that they are organizing within a structure of authority which is designed to ignore or placate them. Rules about how and when people may protest are a waste of time because effective protesters will find a way to create the disruption necessary for their message to be heard. States are best to leave protesters alone, adopting a policy only to intervene to prevent violence against people.
To the protesters currently struggling against militarized police, their university administrators, and the genocide in Gaza, hold on to the moral righteousness of your cause, protect and care for one another, and remember that your message is one that must be heard.
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[1]See Nick Perry, Jim Vertuno and Acacia Coronado, Dozens Arrested on California Campus After Students in Texas Detained as Gaza War Protests Persist, AP, https://apnews.com/article/gaza-war-campus-protests-47f4f7f0916a6493b79eede3e4d0a55d, (last updated April 24, 2024). (Sharing live updates on protests and arrests of student protester across the country).
[2]Antisemitism on Campus Surges as Agitators Take Over, FOX NEWS, https://www.foxnews.com/live-news/antisemitism-campus-surges-agitators-take-over-columbia-yale-universities, (last updated Apr. 26, 2024).
[3] Kim Bellware, College Students are Protesting Schools’ Ties to Israel. Here’s Why., The Washington Post, https://www.washingtonpost.com/education/2024/05/03/campus-protest-origins-demands-divest/, (last updated May 3, 2024).
[4]See Anti-Protest Bills Around the Country, ACLU, https://www.aclu.org/issues/free-speech/rights-protesters/anti-protest-bills-around-country (last visited Apr. 26, 2024). (tracking the states with anti-protest bills as of June 2017).
[5] Kwame Ture was Stokely Carmichael before changing his name.
[7] Jeanna Kuang, Missouri House Passes Penalties for Protesters for Blocking Traffic, Police ‘Bill of Rights,’ THE STAR, May 4, 2021, https://www.kansascity.com/news/politics-government/article251160869.html.
Without a listing under the Endangered Species Act (ESA), the gray wolf (Canis lupus) may become something that the next generation can only know in the pages of a fairytale. The gray wolf is a distant relative of the near-extinct red wolf[1] and shares a distant evolutionary history with the eastern wolf that occupies the Great Lakes Region and much of Canada.[2] The stunning gray wolf has served many important roles for centuries. First, as an apex predator the wolf provides an essential ecological function by keeping prey species at healthy population sizes. This population control creates a cascading effect that improves ecosystem function across trophic levels and increases nutrient cycling.[3] Second, the gray wolf is considered the most sacred species to several Tribes, and broadly holds cultural and political importance across Indigenous communities.[4] Finally, this species is teeming with myth and intrigue: it has filled the pages of children’s books and public programming that has sparked curiosity about wildlife and cultivated an environmental ethic in children for generations. The gray wolf used to roam the contiguous United States until European settlers hunted them to near extinction, marking a harsh contrast to the centuries of coexistence wolves enjoyed with Native Americans.[5] Today, the delisting of the gray wolf could effectively exterminate Canis lupus in the contiguous United States.
The gray wolf has been fully extirpated from the East Coast;[6] however, gray wolf populations in the Northern Rockies and Western Great Lakes regions have since rebounded from near-total extinction.[7] Over last decade, gray wolves have naturally redispersed to California.[8] Moreover, Colorado passed Proposition 114 to reintroduce the species back into its native Southern Rockies range.[9] Importantly, much of the gray wolf’s recovery over the last fifty years is attributable to the ESA which conferred nationwide protections for decades.
The gray wolf was originally listed under the predecessor of the ESA and remained listed up until 2020.[10] Under the ESA, the population of Canis lupus found in Minnesota was listed as threatened, whereas the populations found across the rest of the contiguous United States were listed as endangered.[11] Specifically, the population of gray wolves found across the Northern Rocky Mountain (NRM) region was designated as a Distinct Population Segment (DPS), a listable entity under the ESA.[12] It was this population of gray wolf that was delisted between 2009 and 2017 because the Fish & Wildlife Service (FWS) found that it had recovered. In 2020, the FWS delisted the gray wolf from the remaining contiguous United States.[13] In 2022, this delisting was vacated and remanded by the U.S. District Court for the Northern District of California. In fact, Courts have invalidated five out of six rulemakings by the FWS on gray wolf delisting for failing to consider how delisting a subpopulation affects gray wolf recovery nationwide.[14] As a result, the FWS published a final rule relisting the gray wolf across the contiguous United States; however, this relisting excluded the NRM DPS.[15]
Put plainly, the exclusion of the NRM DPS resulted in the wolf being listed as endangered where it does notlive, and having its listing removed where it does live. This is an absurd outcome that does nothing to protect the wolf from extinction. While population numbers have increased dramatically across the western region, those numbers are artificially padded because of years of protection under the ESA, the use of junk science[16], and novel reintroduction programs, such as Colorado’s Proposition 114. Moreover, this year FWS published a finding that the NRM population no longer constitutes a DPS because of a high genetic exchange and connectivity with populations across the West. The FWS did find, however, that a new Western United States DPS exists. The FWS found that this DPS does not meet the criteria for listing as a threatened or endangered species because population numbers, genetic diversity, and habitat viability are all high—indicating that the species can persist without the help of the ESA.[17] However, this fails to account for the only significant threat to wolf populations in this region: man.
Without federal protections, wolf management plans are left to the state agencies. State management plans are highly controversial and paint a dire future for the gray wolf. Over the past few years, western states have adopted “laws and regulations designed to substantially reduce gray wolf populations in their states using means and measures that are at odds with modern professional wildlife management.”[18] These management strategies include permitting the use of chokehold snares on pregnant females in Montana, allowing the hunting of 90% of the population in Idaho, and the establishment of Predatory Animal Areas in Wyoming that allow the taking of a gray wolf year-round, without a license, using any means possible.[19] These practices far exceed hunting and trapping norms and permit unnecessary violence against our nation’s most intriguing carnivore. Since the delisting of the species, conservationists have reported that the rate of takings and the methods used have returned to that of colonial times, when wolves were nearly wiped off the continent.[20]
FWS is developing a new plan to “foster a national dialogue” to support conflict prevention between wolves and humans.[21] This is too little, too late. Without federal protections, the gray wolf will face deleterious rates of human-caused mortality. Just as the Judiciary has found time and time again, FWS has failed to consider how state management plans in the American West will affect the persistence of the species at large. As a result, the gray wolf continues to be forced in and out of federal protection. However, conservation advocacy groups have banded together and given notice of their intention to bring suit.[22] We can only hope this litigation will force FWS’s hand in promulgating a common-sense, federal management plan before wolves become something that the next generation can only know on the pages of a book.
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[1]Red Wolf, U.S. Fish & Wildlife Serv., https://www.fws.gov/species/red-wolf-canis-rufus (accessed Apr. 22, 2024) (noting only 15 to 17 individuals remain in the wild, all of which are part of a reintroduction plan in California).
[2] Eric Ralls, Eastern Wolves and Grey Wolves Evolved Separately, https://www.earth.com/news/eastern-wolves-and-grey-wolves-evolved-separately/ (Apr. 13, 2023) (noting the gray wolf and eastern wolf evolved from different natural histories and, thus, require different management plans).
[5] Wolf Conservation Planning: A Guide for Working Together Using Science, Inclusivity, and Ethical Practices, Endangered Species Coalition, www.wolfplanning.org (accessed Apr. 21, 2024).
[6]Gray Wolf (Canis lupus) Biologue, U.S. Fish and Wildlife Serv., http://www.fws.gov/midwest/wolf/biology/biologue.htm (last updated May 2004).
[8]See Gray Wolf, Ca. Dept. of Fish & Wildlife, https://wildlife.ca.gov/Conservation/Mammals/Gray-Wolf (accessed Apr. 22, 2024) (discussing gray wolf naturally relocating to California from Northern Oregon).
[9] See H.R. 21-105, 1st Gen. Assemb., 1st Reg. Sess. (Co. 2020) (outlining the passing of Proposition 114 to reintroduce the gray wolf into Colorado).
[10] Endangered and Threatened Wildlife and Plants; Removing the Gray Wolf (Canis lupus) From the List of Endangered and Threatened Wildlife, 85 FR 69778 (2020).
[12] Endangered and Threatened Wildlife and Plants; Finding for the Gray Wolf in the Northern Rocky Mountains and the Western United States, 89 FR 8391 (2024).
[14]U.S. Fish and Wildlife Service Completes Status Review and Finding for Gray Wolves in the Western United States; Launches National Recovery Plan, U.S. Fish & Wildlife Serv., https://www.fws.gov/press-release/2024-02/service-announces-gray-wolf-finding-and-national-recovery-plan (Feb. 2, 2024).
[15] Endangered and Threatened Wildlife and Plants; Finding for the Gray Wolf in the Northern Rocky Mountains and the Western United States, 89 FR 8391 (2024).
[16] Lindsay Botts, Conservation Groups Sue to Stop Wolf Hunting in Idaho, Montana, and Wyoming, Sierra, https://www.sierraclub.org/sierra/conservation-groups-sue-stop-wolf-hunting-idaho-montana-and-wyoming (Apr. 11,2024) (discussing how state agencies place cameras near wolf dens in order to pad the population numbers that are reported to the U.S. Fish & Wildlife Service for consideration of delisting).
[17] Endangered and Threatened Wildlife and Plants; Finding for the Gray Wolf in the Northern Rocky Mountains and the Western United States, 89 FR 8391 (2024).
[18]U.S. Fish and Wildlife Service Completes Status Review and Finding for Gray Wolves in the Western United States; Launches National Recovery Plan, U.S. Fish & Wildlife Serv., https://www.fws.gov/press-release/2024-02/service-announces-gray-wolf-finding-and-national-recovery-plan (Feb. 2, 2024) (emphasis added). See Lindsay Botts, Montana Launches War on Wolves, Sierra, https://www.sierraclub.org/sierra/montana-launches-war-wolves (Apr. 14, 2021) (discussing the use of chokehold snares on pregnant females in Montana); and see Lindsay Botts, Idaho Legislature Sets Sights on Wolf Extermination, Sierra, https://www.sierraclub.org/sierra/idaho-legislature-sets-sights-wolf-extermination (May 3, 2020) (allowing the illegal taking of 90% of the gray wolf population in Idaho).
[19] Ramon Antonio Vargas, Outrage After US Hunter Who Reportedly Took Wolf to Bar and Killed It Only Fined, The Guardian, https://www.theguardian.com/us-news/2024/apr/10/wyoming-wolf-bar-animal-abuse (Apr. 10, 2024) (discussing the recent incident where a hunter ran over a gray wolf pup with his snowmobile which maimed the pup, then taped its mouth shut, and brought it to a bar where it tortured and eventually killed it before an audience of onlookers—the man was only charged a $250 fine).
[21]U.S. Fish and Wildlife Service Completes Status Review and Finding for Gray Wolves in the Western United States; Launches National Recovery Plan, U.S. Fish & Wildlife Serv., https://www.fws.gov/press-release/2024-02/service-announces-gray-wolf-finding-and-national-recovery-plan (Feb. 2, 2024).
[22]Northern Rockies Gray Wolves Denied Endangered Species Protection: New Lawsuit to Protect Persecuted Wolves Is Likely, CBD, https://biologicaldiversity.org/w/news/press-releases/northern-rockies-gray-wolves-denied-endangered-species-act-protection-2024-02-02/ (Feb. 2, 2024).
The freedom against unreasonable searches and seizures is a keystone of American civil liberties. The Fourth Amendment prevents governmental actors from unreasonably invading Americans’ homes, cars, effects, or persons without probable cause to do so.[1] But what about at protests? Obviously, police officers have the ability to search an individual suspected of criminal behavior at protests. But, what about warrantless searches of a wide swath of individuals without their knowledge?
With cell-site simulator (or “Stingray”) technology, police departments can search and seize a variety of data from the cellphones of any individuals in the technology’s vicinity entirely inconspicuously.[2] Stingray technology, in essence, acts as a fake cell-phone tower and forces cellphones in its area to automatically connect to it.[3] Once connected, Stingray technology can obtain the locational information, identifying data, and metadata of that cellphone.[4] Put simply, this military-grade technology[5] can track a phone, identify its unique identification number, and view a variety of personal communications—all without the user’s knowledge.[6]
Further, this technology is a brute. Especially when used at protests, anyone with a cellphone in attendance is likely being tracked and farmed for data – even without presenting a suspicion of probable cause. Chances are, if you have attended a protest in recent years, you have likely been subject to such a search. And, in most states, police departments do not even need a warrant to use Stingray technology.[7] As a result, American police departments can trample the constitutional rights of countless Americans simply to search a haystack for a single needle.
Historically, police surveillance has disproportionately targeted marginalized communities.[8] These historic trends continue today.[9] Policing biases are further entrenched by use of surveillance technologies.[10] And these technologies are disproportionately deployed in marginalized, overpoliced communities.[11]
There are few instances of case law dealing directly with Stingray technology. The Supreme Court, however, has encountered this issue—yet, only from afar. Carpenter established the rule that Americans have a “reasonable expectation of privacy” in their locational data that can be gleaned from a Stingray search.[12] As a result, if an American has their locational data searched and seized, then it becomes a Fourth Amendment violation.[13]
Regulation of this technology is sparse and typically enacted on a state-by-state basis, usually following a court case. With no federal regulation, procedures and practices governing the use of Stingray technology differ greatly – allowing some states to skirt constitutional protections. To account for this patchwork regime of regulation, the federal government must step in. Regulation at the federal level would eliminate “confusing” and “overlapping” policies and laws at the state and local levels while providing “clear legal standards” for use of Stingray technology by any government agency.[14]
The Cell-Site Simulator Warrant Act of 2021 provided a model for such federal regulation.[15] This Act established a warrant requirement for use of Stingray technology by any governmental agency. Further, on the warrant application, the agency would have to disclose the data to be collected, any potential third-parties that may be inadvertently impacted by the search, and whether it was to be used at an event with constitutionally-protected activity, such as a protest.[16]
Despite being a bipartisan issue, this Act unfortunately died in committee,[17] leaving no practical alternative at the federal level. Thus, for the foreseeable future, it appears that the state-by-state regulation regime will continue, being spurred only by judicial challenges after constitutional violations have already occurred.
But the American people deserve more. Instead of relying on a retroactive vindication of their constitutional rights, state and federal governments must provide proactive protections for protestors. Further, police departments have a multitude of other resources to rely on to catch criminals; most of which do not subject the masses to unconstitutional searches merely for participating in the expression of grievances.
During our tumultuous time, Americans must be able to freely express their grievances without fear of being tracked and farmed for data. Otherwise, protestors, regardless of their intentions, come to be viewed under an air of suspicion, can be freely searched without their knowledge, and fall victim to the surveillance state.
[5]See John Haystead, Optical Warfare: Technology Emerges to See the Enemy, and to Blind Him, Military Aerospace Electronics (Mar. 1, 1997), https://www.militaryaerospace.com/communications/article/16710290/optical-warfare-technology-emerges-to-see-the-enemy-and-to-blind-him.
[6]Street-Level Surveillance: Cell-Site Simulators/ IMSI Catchers, Electronic Frontier Foundation (last updated on Aug. 28, 2017), https://www.eff.org/pages/cell-site-simulatorsimsi-catchers.
[7]See Status of Location Privacy Legislation in the States, American Civil Liberties Union (Aug. 26, 2015), https://www.aclu.org/news/privacy-technology/status-location-privacy-legislation-states-2015.
[8]See Jeffrey L. Vagle, Tightening the OODA Loop: Police Militarization, Race, and Algorithmic Surveillance, 22 Mich. J. Race & L. 101, 124–26 (2016).
[9]See George Joseph, Racial Disparities in Police ‘Stingray’ Surveillance, Mapped, Bloomberg (Oct. 18, 2016), https://www.bloomberg.com/news/articles/2016-10-18/u-s-police-cellphone-surveillance-by-stingray-mapped.
[14] Press Release, Ron Wyden: United States Senator for Oregon, Wyden, Lieu, Daines and McClintock Introduce Bipartisan Legislation to Require Warrants for Government Use of “Stingray” Phone Surveillance (June 17, 2021), https://www.wyden.senate.gov/news/press-releases/wyden-lieu-daines-and-mcclintock-introduce-bipartisan-legislation-to-require-warrants-for-government-use-of-stingray-phone-surveillance.
Rachel Carson famously stated, “If we are going to live so intimately with these chemicals—eating and drinking them, taking them into the very marrow of our bones—we had better know something about their nature and their power.”[1]
In early 2022, Vermont residents discovered the overly simplistic process for acquiring a permit to spray herbicides in shared lakes to eradicate aquatic plants. This discovery sparked a heated debate regarding the use of herbicides in Vermont’s lakes.[2] The Vermont legislature needs to balance the harms of herbicides and the potential impacts of non-native aquatic plants when considering whether to approve or deny an herbicide permit.
Aquatic herbicides can have long-lasting effects on humans, aquatic life, and terrestrial organisms.[3] Early herbicide studies frequently overlook possible harmful effects. For example, glyphosate was once believed to be safe but was later classified as carcinogenic to humans by the International Agency for Research on Cancer in 2015.[4] 2,4-D is another ingredient that was initially believed to be safe.[5] According to a senior scientist at the Natural Resources Defense Council, the connection between 2,4-D and cancer in humans “[is not] clear enough” in early studies.[6] Even though there is data connecting 2,4-D to non-Hodgkin’s lymphoma (blood cancer), sarcoma (soft-tissue cancer), and thyroid disorders, this herbicide was still registered in the United States.[7] Moreover, compelling evidence suggests that 2,4-D has endocrine-disrupting properties by either mimicking or inhibiting the body’s hormones.[8] Following the registration of an herbicide, concerning signs gradually emerge.[9] Yet many findings remain inconclusive despite recent research.[10]
In addition to an herbicide’s potential impact on humans, it can impact aquatic life. Even if an herbicide fails to kill an aquatic organism, there may still be sublethal effects.[11] Sublethal effects manifest when an organism experiences alterations in behavior such as weight loss, reduced agility and defense mechanisms, and lower tolerance to high temperatures.[12] Moreover, herbicides have the potential to induce mutations and abnormalities in fish larvae.[13]
The potential impacts of non-native aquatic plants are that they can compete with native plant species,[14] non-native plants can change the fish populations based on decreased predation,[15] and that the abundance of non-native plants can be an inconvenience for lake-goers.[16] In comparison, the possible harm from herbicides is much greater than that of non-native aquatic plants.
The Environmental Protection Agency (EPA) mandates herbicide registration under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).[17] In the Supreme Court decision, Wisconsin Public Intervenor v. Mortier, the Court held that FIFRA does not preempt local regulations,[18] allowing state and local governments to fill in the gaps.[19] Thus, Vermont should enact stricter legislation regarding herbicide permitting for non-native aquatic plants. Vermont can better the legislation in four ways. First, by creating an interagency task force to create a comprehensive non-native plant species management plan and to review herbicide permits around the state. Second, enhancing recognition of the common-law public trust doctrine to reinstate sufficient safeguards for the public’s right to utilize the state’s natural resources. Third, adhering to the Administrative Procedure Act by giving weight to public input and facilitating a better process for public comment. Lastly, mandating public education on herbicides and non-native plants. If none of these methods are considered, at the very least, Vermont should employ the precautionary principle in herbicide legislation.
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[1] Rachel Carson, Silent Spring 17 (25th ed.1962).
[2] Emma Cotton, Denial of Herbicide Permit for Lake Bomoseen Would End Long Controversy, vtdigger (July 5, 2023), https://vtdigger.org/2023/07/05/state-set-to-deny-permit-for-herbicides-on-lake-bomoseen.
[3]IARC Monograph on Glyphosate, World Health Org. (July 19, 2018), https://www.iarc.who.int/featured-news/media-centre-iarc-news-glyphosate/; Danielle Sedbrook, 2,4-D: The Most Dangerous Pesticide You’ve Never Heard of, Nat. Res. Def. Council (Mar. 15, 2016), https://www.nrdc.org/stories/24-d-most-dangerous-pesticide-youve-never-heard (both sources indicating the different health implications of herbicides on humans); Louis A. Helfrich, Pesticides and Aquatic Animals: A Guide to reducing Impacts on Aquatic Systems 6 (2009), https://vtechworks.lib.vt.edu/bitstream/handle/10919/48060/420-013_pdf.pdf (explaining sublethal effects of herbicides on fish); see Oluwaseun Olusegun Babalola & Hannes Johannes van Wyk, Impacts of Diquat Dibromide Herbicide Formulation on Amphibian Larval Development, Nat’l Ctr. of Biotechnology Info. (Apr. 13, 2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8066383/ (stating that a type of herbicide disrupts amphibian growth); Diquat Ecological Risk Assessment Final Report, Bureau of Land Mgmt. (Nov. 2005), https://digitalcommons.usu.edu/cgi/viewcontent.cgi?article=1102&context=govdocs (stating that a type of herbicide is “moderately toxic to birds and honeybees.”).
[7]Id.;see About Pesticide Registration, Env’t Prot. Agency (Jan. 4, 2024), https://www.epa.gov/pesticide-registration/about-pesticide-registration (stating registration is based off of current scientific data and that herbicides must be registered before they are used in the United States).
[11] Alan G. Heath, Sublethal Effects of Pesticides on Fishes, Va. Polytechnic Inst. and State Univ., https://ucanr.edu/repository/fileaccess.cfm?article=161542&p=JNBAWA (last visited March 11, 2024).
[12] Louis A. Helfrich, Pesticides and Aquatic Animals: A Guide to reducing Impacts on Aquatic Systems 6 (2009), https://vtechworks.lib.vt.edu/bitstream/handle/10919/48060/420-013_pdf.pdf.
[13]Beyond Pesticides, Fish and Other Aquatics, https://www.beyondpesticides.org/programs/wildlife/fish (last visited March 11, 2024).
[15] William E. Lynch, Benefits and Disadvantages of Aquatic Plants in Ponds 2–3 (2006), https://woodlandstewards.osu.edu/sites/woodlands/files/imce/0017%20%281%29.pdf.
The U.S. is in a housing crisis. Between the end of 2019 and 2022, the median home sale price in the U.S. increased by an average of 25%.[1] Rental prices also increased by 18% over the last five years. In 2020, 46% of renters in the U.S. spent more than 30% of their income on rent[2], which meets the Department of Housing and Urban Development’s definition of being cost-burdened.[3] In response, jurisdictions have taken many routes to promote affordable housing.
Cities have adopted mandatory inclusionary zoning as one of the many policy tools to address the affordable housing crisis.[4] Mandatory inclusionary zoning generally mandates developers set aside a portion of units at a below-market rate or contribute to a city-run affordable housing fund.[5] Major cities like New York, Seattle, San Francisco, Los Angeles, and Boston have implemented mandatory inclusionary zoning.[6] However, builders, economists, and housing advocates have criticized these policies as being inefficient and actually decreasing the housing supply.[7]
Proponents argue that mandatory inclusionary zoning increases affordable housing and fosters economic integration throughout cities.[8] Moreover, mandatory inclusionary zoning achieves these goals without adding to the municipal budget, making it an attractive option for local politicians.[9]
Opponents, however, state mandatory inclusionary zoning acts as a tax on development.[10] Developers then pass on this increased cost via market-rate housing prices, eventually leading to fewer new housing units due to the increased development costs.[11]
The key question remains: Which side is correct, or are they both right? Empirical studies generally favor opponents when examining the effect of mandatory inclusionary zoning on cities.[12] For instance, a study examining the effects in Boston found that inclusionary zoning resulted in “greater growth in housing prices and reduced construction.”[13]
Two possible courses of action exist to address these policies: the political process and the legal system. Since city councils implement mandatory inclusionary zoning, these policies can be changed or overturned through local legislative actions. As such, it’s crucial for residents to understand local zoning regulations, participate in local elections, and voice their opinions to the city council whenever possible.
In addition to the political process, the legal system offers another avenue to challenge these policies. Some legal scholars have pointed to recent Supreme Court precedent presenting an opportunity to challenge these mandatory inclusionary zoning ordinances under the Takings Clause of the Fifth Amendment.[14] The legal argument against mandatory inclusionary zoning gained support from the Supreme Court’s recent decision in Sheetz v. County of El Dorado. Sheetz clarified whether legislatively imposed exactions[15] face the same scrutiny as administrative exactions.[16] The Court held that the Takings Clause makes no distinction between administrative and legislative decisions and, as such, each type of exaction faces the same scrutiny.[17]
The constitutional test for exactions is governed by the Nollan/Dolan framework.[18] The Nollan/Dolan framework states that exactions must have a nexus and be roughly proportional to what the development is causing.[19] In the case of mandatory inclusionary zoning, cities will now likely have to show (1) there is a nexus between new developments and affordable housing and (2) the amount of affordable units required is roughly proportional to the effect the development would have on affordable housing.[20]
The Nollan/Dolan framework poses a significant issue for many mandatory inclusionary policies. In general, adding additional housing does not usually lead to a decrease in affordable housing.[21] In fact, adding additional supply to a market without a concurrent increase in demand should decrease the overall prices, which increases affordability.[22] There are some instances where a new development could lead to a decrease in affordable housing.[23] For example, a newer, more expensive development could replace an older, cheaper apartment complex–in turn decreasing the supply of affordable housing. However, affordability would likely not decrease in instances where these developments are built on vacant land or add significantly more units than the older development.[24]
However, a legal challenge against mandatory inclusionary zoning hinges on several key questions. First, would mandatory inclusionary zoning be considered a taking outside the permit process – a current requirement to apply the Nollan/Dolan framework?[25] Second, does the Nollan/Dolan framework operate differently when applied to a class of properties instead of a specific property?[26] And does a legislatively imposed exaction need to meet the same level of tailoring as an administrative exaction imposed on a single property?[27]
Regardless of the legal outcome there are more economically and legally sound policy options to increase affordable housing.[28] Better policy options include increasing density, incentivizing inclusionary zoning, removing parking space requirements, increasing the speed of the permit process, and eliminating single-family zoning.[29] All these options are designed to decrease development costs and increase the total housing supply.[30] In conclusion, while the affordable housing crisis demands urgent attention, taxing developers may not offer the most effective solution from a policy or legal perspective.
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[1] Katherine Schaeffer, Key Facts About Housing Affordability in the U.S., Pew Research Center (Mar. 23, 2022) https://www.pewresearch.org/short-reads/2022/03/23/key-facts-about-housing-affordability-in-the-u-s/.
[3]Id.; Rental Burdens: Rethinking Affordability Measures, OFFICE OF POLICY DEVELOPMENT AND RESEARCH, https://www.huduser.gov/portal/pdredge/pdr_edge_featd_article_092214.html#:~:text=HUD %20defines%20cost%2Dburdened%20families,of%20one’s%20income%20on%20rent (last visited Apr. 23, 2024) (stating an individual is “cost-burdened “they “pay more than 30 percent of their income for housing”).
[6] Nick Brunick, et. al., Large Cities and Inclusionary Zoning, Wellesley Inst. (Nov. 2003) https://www.wellesleyinstitute.com/wp-content/uploads/2013/01/ResourceUS_BPI_IZLargeCities.pdf.
[8] Oscar Chan, The Failures of New York’s Mandatory Inclusionary Housing Program, NYU Am. Pub. Policy Rev., (Nov. 14, 2023) https://nyuappr.pubpub.org/pub/wd818qeb/release/3.
[12]See id.; Connor Harris, The Exclusionary Effects of Inclusionary Zoning: Economic Theory and Empirical Research, Manhattan Inst. (Aug. 10, 2021) https://manhattan.institute/article/the-exclusionary-effects-of-inclusionary-zoning-economic-theory-and-empirical-research.
[13]See Harris, supra note 12 (highlighting that inclusionary zoning “seems likely to have contributed to housing shortfalls.”)
[14]See Kristoffer James S. Jacob, California Building Industry Association v. City of San Jose: The Constitutional Price for Affordable Housing, 7 Cal. L. Rev. Circuit 20 (2016); James S. Burling & Graham Owen, The Implications of Lingle on Inclusionary Zoning and Other Legislative and Monetary Exactions, 28 Stan. Envtl. L.J. 397, 417–27 (2009).
[15] An exaction is a condition imposed by a jurisdiction that a landowner must meet to obtain permit approval. See Dolan v. City of Tigard, 512 U.S. 374, 390; Nollan v. California Coastal Commn., 483 U.S. 825, 837.
[23]See Chui On Ki & Jayantha Wadu Mesthrige, The Effects of Urban Redevelopment on Neighbourhood Housing Prices, 14 International Journal of Urban Sciences 276 (2011); Craig T. Schlatter, The Impact of Downtown Revitalization on Residential Home Prices: Evidence from Normal, Illinois. Illinois State University (Jul. 11, 2006) https://ir.library.illinoisstate.edu/cpe/1.
[25] Sheetz v. Cnty. of El Dorado, California, No. 22-1074, 2024 WL 1588707, at 7 (2024) (Sotomayor, J., concurring). Proving mandatory inclusionary zoning is a taking outside the permit process remains a major hurdle, with the best argument being that the policies infringe on a landlord’s right to exclude. See Cedar Point Nursery v. Hassid, 594 U.S. 139, 140 (2021) (expanding the per se taking standard of Loretto by holding government-authorized physical occupations are per se takings regardless of duration).
[28] Jenny Schuetz, To Improve Housing Affordability, We Need Better Alignment of Zoning, Taxes, and Subsidies, Brookings Inst. (Jan. 7, 2020) https://www.brookings.edu/articles/to-improve-housing-affordability-we-need-better-alignment-of-zoning-taxes-and-subsidies/.
In 2023, over 1 billion de minimis shipments worth over $50 billion entered the United States.[1] Less than ten years ago, that number was less than 150 million.[2] What is a de minimis shipment? By definition, a de minimis shipment is too small to be meaningful.[3] That is, however, no longer the case. Currently, any shipment sent into the United States with a fair retail value less than $800 is not subject to duty or import tax.[4] The rationale being that U.S Customs and Border Protection should focus on high-value shipments and spend less time and resources on low-value ones. To that end, Congress raised the de minimis threshold from $200 to $800 in 2016.[5] In the interim, the prevalence of e-commerce skyrocketed.[6]
Traditionally, large companies send shipping containers full of products to a warehouse in the United States. At the port of entry, the requisite duty is paid, and the container is subject to inspection.[7] The de minimis exception enables foreign companies to bypass this process. In particular, Chinese companies ship small, direct-to-buyer packages directly to consumers.
So, what is the issue? De minimis shipments, beyond being tax and duty free, are subject to less stringent data standards. U.S officials have no idea what is being sent into the country or what is purported to be in the packages that come in under the de minimis threshold. This creates a public safety issue. As Representative Mike Gallagher (R-WI) put it “[n]o less than 94% of all import transactions now enter the U.S. through De Minimis rules, accounting for 90% of all illegal narcotics, agricultural goods, and counterfeit seizures by customs.”[8] The deluge of de minimis shipments are overwhelming the system and it has become far too easy to ship drugs (especially fentanyl) and counterfeit goods into the United States. Seemingly, all one must do is claim de minimis and the chances of an illicit shipment reaching its destination unscathed increases greatly.
Beyond the public safety aspect, the aggressive use of de minimis by foreign companies unfairly disadvantages U.S companies and deprives the United States of substantial revenue.[9] In 2023, the de minimis practices of Chinese companies SHEIN and Temu caught the attention of the House Select Committee on the Chinese Communist Party.[10] The Committee found that the two companies make-up over 30% of de minimis shipments into the United States, some 600,000 packages daily.[11] According to the companies themselves, SHEIN and Temu paid a grand total of $0 in import taxes in 2022. For reference, during the same year, GAP paid $700 million in import duty while H&M paid $205 million.[12] The Committee has called on Congress to act immediately to address de minimis concerns.
In today’s hyper-fractured political climate, bipartisanship often seems like a pipe dream. However, there are currently two bipartisan bills in the 118th Congress concerning the de minimis exception.[13] The Import Fairness Act––introduced by Representative Earl Blumenauer (D-OR), Representative Neal Dunn (R-FL), Senator Sherrod Brown (D-OH) and Senator Marco Rubio (R-FL)––aims to exclude certain countries, namely China and Russia, from using the de minimis exception. The De Minimis Reciprocity Act, introduced by Senator Bill Cassidy (R-LA) and Senator Tammy Baldwin (D-WI), would allow shipments from any given country to claim de minimis exception up to the same amount the origin country extends to the United States. For example, if Country A sets its de minimis level at $100 for imports, a package being sent to the United States from Country A could only claim a de minimis exception if the value was $100 or less.
Both bills were referred to the House Committee on Ways and Means and the Senate Committee on Finance, respectively. Since then, nothing has happened in Congress. Outside of Congress, labor unions, domestic manufacturers, business organizations and other business associations have announced the formation of a coalition to bring attention to the effort of de minimis reform.[14] Kim Glas, president and CEO of the National Council of Textile Organizations, supported the coalition’s efforts in stating, “[d]e minimis is not just a textile issue, de minimis is a wildfire out of control, killing our manufacturing sector and jobs, destroying local communities and facilitating illegal, illicit and dangerous products into the U.S.”[15]
To remedy this, Congress should reform the de minimis framework by passing the Import Safety Act or the De Minimis Reciprocity Act to protect American consumers and businesses.
—
[1]De Minimis Shipment Worth Over $11 Million Stopped by Louisville CBP, U.S Customs and Border Protection (Mar. 11, 2024), https://www.cbp.gov/newsroom/local-media-release/de-minimis-shipment-worth-over-11-million-stopped-louisville-cbp#:~:text=In%20FY%202023%2C%20the%20U.S.,a%20billion%20de%20minimis%20shipments.
[5]Section 321 Programs, U.S Customs and Border Protection, https://www.cbp.gov/trade/trade-enforcement/tftea/section-321-programs (last visited Mar. 11, 2024).
[6] Mayumi Brewster, E-Commerce Sales Surged During the Pandemic, U.S. Census Bureau (Apr. 27, 2022), https://www.census.gov/library/stories/2022/04/ecommerce-sales-surged-during-pandemic.html.
[6] Id.
[7] Jordyn Holman, Bipartisan Proposals Would Hit E-Commerce Like Fast Fashion, N.Y Times (Jun. 15,2023) https://www.nytimes.com/2023/06/15/business/ecommerce-SHEIN-us-china-trade.html.
[8] Chelsey Cox, Labor Unions, Domestic Manufacturing Groups launch coalition to Reform De Minimis Import Loophole, CNBC (Mar. 6, 2024), https://www.cnbc.com/2024/03/06/lawmakers-stakeholders-coalition-against-de-minimis-import-loophole.html.
For many, the problems created by net pen aquaculture are out-of-sight, out-of-mind. Below the surface waters, net-pens trap dense stocks of salmon in a slurry of waste and pathogens, endangering wild fish that swim past and suffocating life on the seabed.[1] Fish escape during transfers, extreme tides, and from holes in the nets.[2] Once in the wild, the escapees wreak havoc on wildlife for hundreds of miles up and down the coast.[3] On distant coasts, fish are harvested by the ton, ground up, and then fed to other fish—only to create less fish.[4] But, when affordable salmon appears on grocery store shelves, images of murky water, parasite-covered salmon, or depleted fisheries do not come to mind. Nor should they have to. Sustainable alternatives to net pen aquaculture exist. Several states have successfully banned net pen aquaculture and supported such alternatives.[5] In Washington, however, a loophole in the state statute phasing out net pen aquaculture creates an opportunity for industries to perpetuate the harms of this practice.
On August 19, 2017, moorings anchoring a net pen in Washington’s Puget Sound failed.[6] Over 250,000 Atlantic salmon were released into Puget Sound.[7] With “widespread public concern” following this catastrophe, the Washington legislature enacted a statute to “phase out nonnative fish farming in Washington waters.”[8] The statute calls on agencies to design statewide guidance to eliminate harms perpetuated by this practice.[9] Except for Section 1, the Governor signed the bill into law.[10]
Wildlife and environmental advocates saw the new law as a victory.[11] However, Cooke Aquaculture (“Cooke”), the collapsed net pen owners, saw an opportunity. In January 2019, Cooke submitted a proposal to transition its farming operations from nonnative Atlantic salmon to native steelhead trout.[12] The Washington Department of Fish and Wildlife (“the Agency”) approved the proposal and issued a mitigated determination of nonsignificance (MDNS) under the State Environmental Policy Act (SEPA). The Agency concluded that “the steelhead net-pens will not have a probable, significant adverse impact on the environment.”[13] The Wild Fish Conservancy brought suit, challenging the MDNS.[14] Ultimately, in January 2022, the Washington Supreme Court found that the Agency did not violate SEPA when they issued an MDNS allowing Cooke to transition to steelhead trout with specific conditions.[15]
Washington’s Commissioner of Public Lands, Hilary Franz, responded quickly. Remaining steadfast in her promise to phase out net pens in Washington, Commissioner Franz denied Cooke’s lease renewal.[16] And, on November 17, 2022, she issued Commissioner’s Order 202211 (“the Order”), which called for the development of “necessary changes to agency rules . . . to prohibit commercial finfish net pen aquaculture on state-owned aquatic lands.”[17]
Initially, the Order was viewed as a ban on net pen aquaculture.[18] However, both Cooke and their venture partner, Jamestown S’Klallam Tribe,[19] challenged the denial of their lease renewal and the Order itself.[20] A superior court “gutted” Cooke’s challenge by issuing a “summary judgment against most of its claims.”[21] Alternatively, the Jamestown S’Klallam Tribe—and net pen aquaculture proponents—were optimistic with their summary judgment hearing when Judge Indu Thomas concluded that the Order “has no legal effect.”[22] However, it remains to be seen how the Order will impact the aquaculture industry in Washington or what subsequent challenges will bring.
While the back-and-forth continues in Washington, all other states along the Pacific Coast—California, Oregon, and Alaska—have successfully banned net pen aquaculture.[23] In California, the state legislature mandates the California Department of Fish & Wildlife provide a “detailed environmental impact statement” for any project affecting salmon and steelhead resources.[24] Further, the California Department of Fish & Wildlife issues regulations restricting certain species to “closed-water systems.”[25] These closed-water systems “ensure against the release of live organisms, including parasites, pathogens, and viruses, into waters of the state.”[26] Through these statutes and regulations, California has successfully kept aquaculture companies from perpetuating the harms associated with net pen aquaculture.
The Washington State legislature should amend Sections 77 and 79 of the Washington Revised Code. Like Section 1015 of California’s Fish & Game Code, the amendment should require the Agency to conduct a detailed environmental impact statement, as SEPA requires, that considers reasonable alternatives, including no action. The amendment would apply to any action impacting the salmon and steelhead populations and resources in state waters. An amendment that mandated an environmental impact statement would eliminate the “threshold question” of whether the action has an adverse environmental impact.[27] Here, the legislature would answer that question affirmatively. Therefore, the only proper determination is that any action impacting salmon or steelhead resources requires the Agency to prepare a detailed environmental impact statement, not an MDNS.
Additionally, the amendment should incorporate the language used by Commissioner Franz. In Commissioner’s Order 202211, Commissioner Franz used the language “commercial finfish.”[28] This amendment would close the loophole. By changing “nonnative” to “commercial” in the state statutes,[29] Cooke could not move forward with its proposal to transition its net pens from nonnative fish to native fish.[30]
Further, the amendment should authorize the Agency to restrict specific species to closed-water systems or recirculating aquatic systems (RAS). RAS do not adversely affect local fish populations because commercial finfish raised in RAS never interact with local fish. If finfish were confined to RAS, there would be both safer food products and a safer marine ecosystem. Importantly, this amendment would not ban aquaculture generally but would encourage sustainable alternatives. In the end, Washington benefits from a better domestic supply of fish, keeping prices low for this important food, and a healthier environment.
—
[1] Douglas Frantz & Catherine Collins, Salmon Wars 98 (2022).
[5] Isabella Breda, WA Bans Commercial Net-Pen Fish Farming in State Waters, Seattle Times (Nov. 18, 2022), https://www.seattletimes.com/seattle-news/environment/wa-lands-commissioner-bans-net-pen-fish-farming-in-state-waters.
[6] Wild Fish Conservancy v. Cooke Aquaculture LLC, No. C17-1708-JCC, 2019 WL 6310660, at *1 (W.D. Wash. Nov. 25, 2019) (discussing the order denying defendant’s motion to exclude expert testimony and granting and denying in parts plaintiff’s motion for summary judgment).
[7] Wild Fish Conservancy v. Wash. Dep’t Fish & Wildlife, 502 P.3d 359, 363 (Wash. 2022).
[10] 2018 Wash. Sess. Laws 950 (explaining that the Governor’s reasons for vetoing Section 1 were because he felt it was “unnecessary [for] implement[ing] the bill” and he did “not agree with all the assertations”); see generally 2018 Wash. Sess. Laws 944 (“[M]arine finfish aquaculture in general may pose unacceptable risks not only to Washington’s native salmon populations but also to the broader health of Washington’s marine environment.”).
[11]See Our Sound, Our Salmon, https://www.oursound-oursalmon.org/we-did-it (last visited Mar. 27, 2024); see also Linda V. Mapes, Washington State Senate OKs Phasing Out Atlantic Salmon Net-Pen Farming, Seattle Times (Feb. 8, 2018), https://www.seattletimes.com/seattle-news/environment/washington-state-senate-oks-phasing-out-atlantic-salmon-net-pen-farming.
[12] Wash. Dep’t Fish & Wildlife, 502 P.3d at 363 (emphasis added).
[13]Id. at 364; see also Wash. Dep’t Fish & Wildlife, Justification for the Mitigated Determination of Non-Significance (MDNS) for Wash. Dep’t Fish & Wildlife SEPA 19-056 and for the Approval of Cooke Aquaculture Pacific’s Marine Aquaculture Permit Application (Jan. 21, 2020) [hereinafter Permit Justification], https://wdfw.wa.gov/sites/default/files/2020-01/marine_aquaculture_permit_justification.pdf.
[14] Wash. Dep’t Fish & Wildlife, 502 P.3d at 365.
[16] Wash. Dep’t Nat’l Res., Commissioner Franz Cancels Leases for Remaining Net Pen Salmon Farms in Puget Sound (2022), https://www.dnr.wa.gov/news/commissioner-franz-cancels-leases-remaining-net-pen-salmon-farms-puget-sound.
[17] Wash. Dep’t Nat’l Res., Commissioner Order 202211 (2022) [hereinafter Order 202211], https://www.dnr.wa.gov/publications/em_commissioners_order_net_pens.pdf.
[19] Jamestown S’Klallam Tribe, https://salishfish.net/ (highlighting their partnership with Cooke Aquaculture).
[20] Bellamy Pailthorp, Cooke Aquaculture Files Suit Over Terminated Net Pen Leases in WA, KNKX Pub. Radio (Dec. 14, 2022), https://www.knkx.org/environment/2022-12-14/cooke-aquaculture-files-suit-over-terminated-net-pen-leases-in-wa.
[21] Cliff White, Divergent Outcomes for Cooke, Jamestown S’Klallam Lawsuits Against Washington DNR, SeafoodSource (Sept. 22, 2023), https://www.seafoodsource.com/news/premium/aquaculture/divergent-outcomes-for-cooke-jamestown-s-klallam-lawsuits-against-washington-dnr.
[22]See Northwest Aquaculture Alliance, Washington State’s Commercial Net Pen Ban “Has No Legal Effect,” Court Says; Commissioner’s Order Ruled as “An Internal Policy Directive”—Not a Ban, Perishable News, (Oct. 23, 2023), https://www.perishablenews.com/seafood/washington-states-commercial-net-pen-ban-has-no-legal-effect-court-says-commissioners-order-ruled-as-an-internal-policy-directive-not; see also Chris Chase, Judge Rules Net-Pen Ban in Washington State “Has No Legal Effect”, SeafoodSource (Oct. 23, 2023), https://www.seafoodsource.com/news/premium/aquaculture/judge-rules-net-pen-ban-in-washington-state-has-no-legal-effect.
[23] Breda, supra note 5 (“Net-pen fish farming has already been outlawed in California, Oregon, and Alaska.”).
[27]See Wash. Dep’t Fish & Wildlife, 502 P.3d at 365 (explaining that SEPA allows for a third determination to the “threshold question,” which asks “whether the action will result in ‘probable significant adverse environmental’ impacts”).
In the United States, the Fourth Amendment protects against unreasonable search and seizure. The mainstay test for unauthorized search of government officers comes from Katz v. United States, which claimed that Fourth Amendment protections rested on whether a person showed that they expected privacy, and that their expectation of privacy was reasonable.[1] The takeaway of Katz was that the “Fourth Amendment protects people, not places.”[2] Up until Katz, homes had been absolutely protected: trespass on the home by officers of the law without a warrant was a violation of the Fourth Amendment.[3] In 2001, Kyllo returned to the idea that a home was in some way sacrosanct, citing a litany of decisions that protected homes more strongly than other places.[4]
The idea that the state’s officers cannot just go into a home and search is nothing new, or exceptional to the United States. The sanctity of the home is an ancient concept. Documents from 100 B.C.E.–100 C.E. containing legal codes and reports of cases from Han Dynasty China include an interesting law under the Arresting Statues.[5] The statute stated “Officers are forbidden to enter without an approved reason into huts or houses to arrest people. People may beat and wound intruders in their houses, and the matter is then dealt with according to ‘the Statute on Entering People’s Houses without an Approved Reason.’”[6] Other documents from the same period make similar statements. For example, a commentary on the Chou-li included “[t]hose who, without an approved reason, enter into people’s houses or huts or step onto their carriages or boats, or drag other people to commit legal offense can be resisted and killed, without liability.”[7]
The protection that these statutes offer from officers of the state is astounding for this period and culture. The Han Dynasty succeeded the Qin Dynasty, which was known for its authoritarian laws, and used the same legal system with few changes.[8] The original Kingdom of Qin adopted Legalism as the state school of thought, and used the law to build a governmental system that supported an expansionist, authoritarian state.[9] The legal code that developed was egalitarian: the law applied to everyone, and the punishments doled out to lawbreakers were harsh.[10]
A new concept introduced in this legal code was the crime of aiding and abetting.[11] The populace were broken into groups of five families.[12] If a person within a group of five committed a crime, the other members within their group had to denounce the person to the local magistrates, or be charged as an accomplice, and receive the same punishment.[13] Sentences under Qin Legalism were known as punishments, and while they could include time spent in jail, they often started at forced tattooing and mutilation, before rising to execution.[14]
Despite some reform of the system during the Han Dynasty, the records of legal proceedings mostly involved denunciations of various people.[15] Effectively, the culture of the early Han was the same police state of the Qin.[16] But even with the great importance placed on reporting others to the state officials, the officials themselves were not allowed to enter a home without cause.[17] Further, if they did enter the home, they would be subject to either state punishment, or retributive justice by the home owner.[18] A system created to grow the power of the central state still allowed people the privacy of their homes. It even created accountability for any officer who chose to break these laws.
Much like the true utility of the Fourth Amendment, how well the officials enforced the Statute on Arresting is up for debate.[19] The Qin, and later the Han posted their laws in public places for everyone to read and be aware of every detail of the intensely complex and evolving legal code.[20] While this did not mean universal knowledge, most people of all walks of life had access to not only their responsibilities to denounce any wrong doing, but also their right to protecting their home against unwarranted intrusion.
On one hand, the Qin legal code created an atmosphere where denunciation was the tone of the day. Parents denounced sons for being unfilial, people who served in the house denounced the people they served, and there were always handy neighbors around to denounce one another.[21] In such an atmosphere, giving the people the right to harm or kill officers of the law if they invaded the home might have been seen as a sensible release valve. On the other hand, the policies of the Qin and the Han pushed for an attitude of respectful citizenry in a unified and centralized authoritarian government.[22] It is possible that the state refused to enforce the prohibition against government officers entering people’s homes.
It should also be kept in mind that this was a society which valued military service, growing out of the Warring States period, and had created a promotion system based on the number of heads of enemies of the state that a person could collect.[23] Indeed, many of the denunciations involve crimes regarding the possession of these trophy heads.[24] How free could a person be to defend their rights against someone who might have earned their position by beheading the last person who objected?
Homes deserve special protection. Katz’s privacy test protects us in a whole variety of situations and against technologically advanced searches.[25] However, in an era when we expect our most personal information will be shared, the question of what a reasonable person would believe is private grows narrower and narrower. Respecting the home under trespass is potentially a stronger protection of individual rights. Whatever the detractors of Kyllo wish to say, protecting the home, and giving the right of that protection to the people, is something humans have been doing in law since at least the Legalist reform of the Kingdom of Qin, and probably long before that.
—
[1] See Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”) (internal citations omitted).
[3] See Kyllo v. United States, 533 U.S. 27, 31 (2001) (discussing historical usage of trespass from English common law to Katz); see also, e.g., McGuire v. United States, 273 U.S. 95, 98 (1927) (discussing the roots of the idea of trespass ab initio coming from English Common Law to its full adoption as a rule in the United States courts) (citing Six Carpenters, 8 Coke 146(a) (1572), then Commonwealth v. Rubin, 165 Mass. 453, 455 (1896)).
[4] Seeid. at 37 (comparing the holding in Dow Chemical where an industrial complex was not granted the same expectation of privacy as a home to Silverman which found intrusion into a home to be a Fourth Amendment violation) (first quoting Dow Chemical v. United States, 476 U.S. 227, 238 (1986); and then quoting Silverman v. United States 365 U.S. 505, 512 (1961)).
[5] Discovered in Chuyen in central Asia during the 1930s, these legal documents were written on strips of bamboo, and bound together, as was common for the time. Bamboo Slips with Writing (Zhujian) in Qin Seal Script (Qinzhuan), YALE UNIV. ART GALLERY, https://artgallery.yale.edu/collections/objects/230048 (last visited Apr. 11, 2024); see also Anthony Hulsewé, Remnants of Han Law (eBook ed. Brill 2022) (1955) (translating the documents discovered in Chuyen, and discussing the culture that they reveal).
[6] See Hulsewé, supra note 5, at 36 (translating the Statutes on Arresting).
[7] See Chun-sun Chang, The Chinese Family in Han Times: Some Review Notes, 1 Early China 65, 67–68 (1975) (reviewing T’ung-tsu Ch’ü , Han Social Structure (Jack L. Dull ed., 1972)) (suggesting that while the book contains excellent sources of research, the inclusion of the various versions of the Statutes on Arresting would provide a more comprehensive view of Han home life).
[8] See Chris Stewart, Episode 24: Xiongnu to the Left of Me, Rebels to the Right, The History of China, at 9:00 (June 2, 2014), https://thehistoryofchina.wordpress.com/2014/06/02/episode-22-xiongnu-to-the-left-of-me-rebels-to-the-right/ (discussing the first Han Emperor’s turn away from Qin legalism, which did relax under his reign, but retained many of the legal codes).
[9] See Chris Stewart, Episode 17: E. Zhou 6: Qin’s Reformation and Ascension, The History of China, at 13:25, 16:17 (Apr. 9, 2014) https://thehistoryofchina.wordpress.com/2014/04/09/episode-16-qins-reformation-and-ascension/ (describing the sweeping social changes of Legalist scholar Shang Yang’s legal reforms to the Kingdom of Qin, such as the changes to the tax code that encouraged young men to enroll in the military, and have large families, as well as favorable immigration policies, all designed to grow the population and turn the Qin Kingdom into a military machine to conquer the neighboring states of the period).
[10] Seeid. at 15:50 (detailing the unprecedented moment when, acting under the new Qin legal code which abolished the exemption from the law the noble classes had enjoyed throughout the Yellow River Valley, Qin legalists arrested, tried, and punished the Crown Prince of Qin); id. at 15:24 (describing the Qin sentencing form of punishments, including mutilations and torture before death, as “draconian and excessive, even for their time”); but see Katrina C. D. McLeod & Robin D. S. Yates, Forms of Ch’in Law: An Annotated Translation of the Feng-chen Shih, 41 Harv. J. Asiatic Studs. 122, n.27 (1981) (noting there is evidence that the mutilating punishments were widespread though out the preceding periods of the Shang and Zhou kingdoms).
[11] See, e.g., Stewart, Episode 17: E. Zhou 6: Qin’s Reformation and Ascension, supra note 9, at 15:34 (noting that the crime of aiding and abetting meant any people who did not denounce a person they knew to have committed a crime would be punished with the exact same force as the people who committed the crime); McLeod & Yates, supra note 10, at 118, 159–62 (translating records of legal incidents from before 217 B.C.E, such as the killing of an unborn child during an assault on the mother, someone threatening to poison various people, and illicit extramarital sex, all brought to the authority’s attention by interrelated people denouncing their fellow citizens).
[12] See Robin D. S. Yates, Social Status in the Ch’in: Evidence from the Yün-meng Legal Documents. Part One: Commoners, 47 Harv. J. Asiatic Studs. 197, 218, 231 (1987) (discussing the concept of the five-family unit as asocial and legal unit for Qin commoners); McLeod & Yates, supra note 10, at 134 n.66 (discussing the separation of levels of liability based on the “five-man groups” system).
[13] Stewart, Episode 17: E. Zhou 6: Qin’s Reformation and Ascension, supra note 9, at 15:40; Yates, supra note 12, at 218 (reviewing the statutes on registration where if a young man does not register for state service in labor or the military, they are fined two sets of armor, the village elder and the leader of their five family group will be fined one set of armor if they do not report the non-registrant, the five family members will be fined one shield per household, and all will be exiled).
[14] See id. at 20:12 (describing the highest level of punishment in the Qin legal system, the Extermination of the Nine Familial Relations, noting that they were rarely used as the threat of their brutality were considered a deterrence to potential criminals, but were considered in the sentencing of Shang Yang himself, once the crown prince who had faced the legal system he invented ascended the throne and put him on trial for treason).
[15] See, e.g., Charles Sanft, Law and Communication in Qin and Western Han, 53 J. Econ. & Soc. Hist. Orient 679, 692 (2010) (“The Shangjun shu propounds denunciation as part of ordinary legal practice, and such a system was in place during Qin and Han times.”).
[16] See Stewart, Episode 24: Xiongnu to the Left of Me, Rebels to the Right, supra note 8, at 9:05.
This is not to say that the Han legal system was a total break from the Qin legal code. On the contrary, the vast majority of Han law, especially in the early dynasty, was lifted directly from the preceding dynasty, including the use of torture, summary executions, and execution via torture. Rather, it was pretty much just the Qin laws already on the books, but with some of the codes now relaxed and some of the penalties reduced. A kind of Qin Lite, now with 25% fewer executions. Id.
[19] See, e.g., David H. Gans, “We Do Not Want to Be Hunted”: The Right to Be Secure and Our Constitutional Story of Race and Policing, 11 Columb. J. Race & L. 239, 337 (2021) (arguing that Fourth Amendment analysis must be sensitive to race, as in the current form, the protections of the Fourth Amendment are unenforceable against officers who make racially motivated searches).
[20] See Sanft, supra note 15, at 692 (arguing the Qin practice of posting laws publicly, reading them aloud in public spaces, and creating broad access to the legal system for the population intentionally communicated the vital civic role that law played above all else).
[21] See, e.g., McLeod & Yates, supra note 11, at 141, 147, 150.
[22] See Chris Stewart, Episode 21: Qin 2: There Can Only Be One, The History of China at 12:50 (May 8, 2014), https://thehistoryofchina.wordpress.com/2014/05/08/episode-19-one-nation-under-qin/ (discussing how the first emperor of the Qin Dynasty implemented Qin law across all China); id. (“Unity was the watchword of the era. Unity of law. Unity of government. Unity of the people.”).
[23] See Xiran Jay Zhao, The First Emperor of China’s Ridiculously Dramatic Life, YouTube at 10:40, https://www.youtube.com/watch?v=8n1OU9p3fhM (describing the 20 ranks of prestige that the Kingdom of Qin created for its citizens during the early reforms geared toward military strength).
[24] See McLeod & Yates, supra note 11, at 144–46 (detailing two separate instances of beheaded trophy-related crimes: the attempted theft of one person’s trophy head, and an attempt to claim the head of a person who might not have been an enemy combatant).
[25] The Katz test itself was created in response to the technological advances in listening devices available to the police in the 1970s. Katz v. United States, 389 U.S. 347, 362 (1967) (“[The concept of trespass’] limitation on Fourth Amendment protection is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion.”) (emphasis added).
In the past few decades, presidents have used the power granted them under the Antiquities Act to protect vast areas of ocean as national monuments. This started with President Clinton, who reserved 30,843 acres of coral reefs across two monuments.[1] President Bush took this idea a step further, proclaiming three massive marine national monuments in the western Pacific Ocean spanning hundreds of thousands of square miles.[2] President Obama didn’t slow down—he expanded this “marine national monument” system by hundreds of thousands more square miles.[3]
These presidents were using a 1906 land management law designed for protecting archaeological sites in the American Southwest in a brand new way.[4] The Antiquities Act had long been a key tool for presidents seeking to protect land, largely because of its simplicity.[5] In two sentences, the law authorizes the President to set aside federally controlled lands for protection as national monuments via proclamation.[6] There are only two restrictions on this power: national monuments must be centered around “objects of historic or scientific interest” and limited to the “smallest area compatible with the proper care and management” of the protected objects.[7]
Presidents Clinton, Bush, and Obama all created marine national monuments by stating they were centered around ecosystems as objects of scientific interest and were of the smallest area compatible with protecting those ecosystems.[8] And for years, opponents of these monuments grumbled and fought marine monuments politically. But it was not until President Obama’s proclamation of the Northeast Canyons and Seamounts National Monument that anyone made a legal challenge.[9]
A fishing association (the Massachusetts Lobstermen’s Association) claimed that the Northeast Canyons and Seamounts Marine National Monument did not fit the requirements of the Antiquities Act.[10] They claimed President Obama had abused his discretion in proclaiming the monument.[11] The government moved to dismiss these claims as failing to allege sufficient facts to support the claims.[12] Because the Lobstermen’s Association didn’t provide any scientific basis to back up their claims, only stating that the monument was much larger than the canyons and seamounts the monument was meant to protect, the District Court granted the motion.[13] On appeal, the Circuit Court for the D.C. Circuit affirmed this decision.[14]
The plaintiffs attempted to appeal further, all the way to the Supreme Court.[15] The Court denied certiorari, but Chief Justice Roberts issued a special statement inviting similar challenges and calling into doubt, in at least his opinion, the legality of large-scale marine monuments.[16] Roberts went so far as to invite future challenges under the Antiquities Act, so long as they alleged better facts.[17]
But how could the Court even approach an Antiquities Act challenge? The National Environmental Policy Act (NEPA) doesn’t apply.[18] The Administrative Procedure Act doesn’t provide for judicial review of presidential actions, only agency ones.[19] The district court in Mass. Lobstermen’s Ass’n indicated a right to review of presidential actions as ultra vires, or beyond the powers granted by statute or the Constitution.[20] But there is no guarantee that this was a correct holding. Some scholars have gone so far as to argue that, under current Supreme Court precedent, there is no room for meaningful review of presidential actions under the Antiquities Act.[21] Ultimately, if the Court chooses to pursue the question, it will be for the Court to decide.
The other question, then, is should the Court consider reviewing Antiquities Act proclamations? My answer is no. Marine national monuments have proven to be an incredibly effective conservation tool.[22] Congress seems to have accepted the practice, and even if it does not, it should be the one to restrict the powers it granted—not courts.[23]
—
[1] Tyler C. Costello, Are Marine National Monuments “Situated on Lands Owned or Controlled by the Government of the United States?’, 24 Ocean & Coastal L. J. 219, 235 (2019).
[3] Proclamation No. 9478, 81 Fed. Reg. 60,227, 60,227 (Aug. 26, 2016) (Expanding the Papahānaumokuākea Marine National Monument) (expanding an existing marine national monument in the Northwestern Hawaiian Island by about 440,000 square miles); Proclamation No. 9496, 81 Fed. Reg. 65,153 (Sept. 15, 2016) (Establishment of the Northeast Canyons and Seamounts Marine National Monument) (creating a new marine national monument in the Atlantic Ocean).
[4] Benjamin Hayes, Cong. Rsch. Serv., R45718, The Antiquities Act: History, Current Litigation, and Considerations for the 116th Congress 1 (2019).
[5] Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev. 473, 475 (2003).
[8] Tyler C. Costello, Are Marine National Monuments “Situated on Lands Owned or Controlled by the Government of the United States?’, 24 Ocean & Coastal L. J. 219, 236 (2019).
[9]See generally Mass. Lobstermen’s Ass’n v. Ross, 945 F.3d 535 (D.C. Cir. 2019).
[10] Mass. Lobstermen’s Ass’n v. Ross, 349 F. Supp. 3d 48, 55 (Dist. D.C. 2018).
[18] Joseph Brigget, An Ocean of Executive Authority: Courts Should Limit the President’s Antiquities Act Power to Designate Monuments in the Outer Continental Shelf, 22 Tul. Env’l L.J. 403, 411–12 (2009) (citing State of Alaska v. Carter, 462 F. Supp. 1155, 1160 (D. Alaska 1978)).
[19] Kevin M. Stack, The Reviewability of the President’s Statutory Powers, 62 Vand. L. Rev. 1171, 1172 (2009) (citing Franklin v. Massachusetts, 505 U.S. 788, 801 (1992)).
[20] Mass. Lobstermen’s Ass’n v. Ross, 349 F. Supp. 3d 48, 53 (Dist. D.C. 2018).
[21] Lance F. Sorenson, The Hybrid Nature of the Property Clause: Implications for Judicial Review of National Monument Reductions, 21 J. Const. L. 761, 804–08 (2019).
[22] Margaret Cooney et al., How Marine Protected Areas Help Fisheries and Ocean Ecosystems, CAP20 (June 3, 2019) https://www.americanprogress.org/article/marine-protected-areas-help-fisheries-ocean-ecosystems/.
Fossil fuels as an energy source powered considerable socioeconomic development, which created environmental challenges that need a global solution.[1] Renewable energy provides a bridge to supply increased power demands and reduce humans’ environmental impact.[2] However, renewables present their own environmental challenges and cannot meet current energy demand.[3] Yet, the International Energy Agency predicts that renewable energy will supply 95% of the increase in global demand between 2023 and 2025.[4] To prevent renewable energy from perpetuating environmental damage, however, policymakers must develop sustainable and diverse energy policies.
Photovoltaic solar relies on panels that have limited lifespans. One hundred thousand tons of solar panel waste sit in United States landfills today.[5] Projections indicate that the United States will have one million tons of solar panel waste by 2030and 22 billion tons of solar waste by 2050.[6] Disposing of panels in landfills wastes valuable materials[7] and can allow harmful substances to leach from the panels to surrounding environments.[8] But panels can be recycled.[9] Accordingly, legislation that requires panels to contain minimum recycled content offers an attractive solution to establish a sustainable solar energy industry.
Yet, improvements should not stop with solar panels. As the world shifts from fossil fuels, policymakers need to encourage development and implementation of other clean energy sources. For example, nuclear fusion could produce electricity without carbon emissions.[10] Nuclear fusion powers the sun and other stars.[11] In 2021, scientists in California reignited interest in nuclear fusion power when they produced more energy from a nuclear fusion reaction than they used to create the reaction.[12] Nuclear fusion’s energy-generating potential warrants further government investment and could factor into future energy policies.[13]
Additionally, the United States increasingly relies on existing nuclear technology to further clean energy goals.[14] Nuclear fission offers the second largest source of low-carbon electricity today.[15] Nuclear technology could meet energy needs while waiting for more and better renewables.[16] Nuclear energy helps prevent over 500 million tons of carbon dioxide from entering the atmosphere annually.[17] To continue reaping the benefits of nuclear energy, United States utilities will need to extend the lifespan of existing reactors, implement small modular reactors, and continue to invest in technological development, like nuclear fission.[18]
[2] Renewable energy sources include solar photovoltaic, concentrated solar, geothermal, biomass, hydropower, and marine and hydrokinetic power. See generally Samuel Koebrich et al., 2018 Renewable Energy Data Book 4 (Mike Meshek & Gian Porro eds., 2020); see also Merrian C. Fuller et al., Toward a Low-Carbon Economy: Municipal Financing for Energy Efficiency and Solar Power, 51 Env’t. Mag. 22, 24 (2009).
[3] Intl. Energy Agency, Nuclear Power in a Clean Energy System 8 (2019), https://iea.blob.core.windows.net/assets/ad5a93ce-3a7f-461d-a441-8a05b7601887/Nuclear_Power_in_a_Clean_Energy_System.pdf.
[4] Intl. Energy Agency, Electricity Market Report 2023 6.
[5] Yan Xu et al., Global Status of Recycling Waste Solar Panels: A Review, 75 Waste Mgmt. 450, 453 (2018).
[6] Stephanie Weckend, et al., End-of-Life Management: Solar Photovoltaic Panels, Intl. Renewable Energy Agency 25, 34 (2016); see also Atalay Atasu, et al., The Dark Side of Solar Power, Harvard Business Review, (June 18, 2021), https://hbr.org/2021/06/the-dark-side-of-solar-power (explaining that solar panel waste might exceed current projections if consumers opt for early replacement).
[7] Hernandez-Lopez Daniela-Abigail et al., Does Recycling Solar Panels Make This Renewable Resource Sustainable? Evidence Supported by Environmental, Economic, and Social Dimensions, 77 Sustainable Cities & Soc’y 103539, 39 (2022) (explaining that recycling panels would enable a 66% reduction in the total materials and energy consumed to develop solar energy); Rachel Snead, Washington State Tackles Solar Panel Waste, the Dirty Side of Clean Tech, Envtl. And Energy Study Institute (Feb 24, 2021), https://www.eesi.org/articles/view/washington-state-tackles-solar-panel-waste-the-dirty-side-of-clean-tech.
[8] Michael Shellenberger, If Solar Panels Are So Clean, Why Do They Produce So Much Toxic Waste?, Forbes (May 23, 2018), https://www.forbes.com/sites/michaelshellenberger/2018/05/23/if-solar-panels-are-so-clean-why-do-they-produce-so-much-toxic-waste/#3e355219121c (explaining that solar panels contain toxic materials that can become contaminate environments when they leech).
[9]See generally C.C. Farrell et al., Technical Challenges and Opportunities in Realizing a Circular Economy for Waste Photovoltaic Modules, 128 Renew. Sustain. Energy Rev. 12 (2020) (explaining that recycling solar panels prevents waste and promotes sustainability).
[10] U.S. Gov. Accountability Office, Fusion Energy, Potentially Transformative Technology Still Faces Fundamental Challenges (Mar. 30, 2023), https://www.gao.gov/products/gao-23-105813.
[12] Daniel Cleary, With Historic Explosion, A Long-Sought Fusion Breakthrough, Sci. News (Dec. 13, 2022), https://www.science.org/content/article/historic-explosion-long-sought-fusion-breakthrough.
[13] Pearle M. Lipinski, Considering the Price-Anderson Act’s Federal Public Liability Action Provisions in the Future of Nuclear Fusion Power, 22 Colo. Tech. L. J. 1, 16–18 (2023); David A. Repka & Tyson R. Smith, Deep Decarbonization and Nuclear Energy, 48 ELR 10244, 10248 (2018).
[14]See, e.g., Energy Act of 2020, Pub. L. 116-260 Div. Z §§ 2001-2008, 116th Cong. (2021) (offering Congressional support for billions of dollars for programs that include advanced fuel development, demonstration projects for advanced nuclear reactors, and development of fusion power plants); Nuclear Energy Innovation and Modernization Act, Pub. L. 115-439, 115th Cong. (2019) (calling for developments that would “allow innovation and commercialization of advanced nuclear reactors”); Dep’t of Energy, DOE Establishes $6 Billion Program to Preserve America’s Clean Nuclear Energy Infrastructure (Feb. 11, 2022) (stating that nuclear power plants are essential to achieving the United States’ clean energy goals).
[15] Intl. Renewable Energy Agency, supra note 3, at 8.
[16]Id. at 80 (explaining that renewable energy has failed to lower overall carbon emissions because it often replaces nuclear generation); Ahab Abdel-Aziz, Reimagining the Future of Nuclear Power Generation, 69 Nat. Res. & Energy L. Inst. 3-1, 1, 2, 4 (2023) (explaining that nuclear can meet energy demands that grow with global populations and electrification).
[17] Intl. Energy Agency, supra note 3, at 20; Dept. Of Energy, Three Reasons Why Nuclear Is Clean and Sustainable (Mar. 31, 2021); see also Mass. Inst. Tech., The Future of Nuclear Energy in a Carbon-Constrained World, at xi (2018) (explaining the cost effectiveness of using nuclear).
Submissions The Vermont Law Review continually seeks articles, commentaries, essays, and book reviews on any subject concerning recent developments in state, federal, Native American, or international law.
