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The Attack on Administrative Regulation

William Funk

Probably since the first instance in which Congress considered giving a federal agency the authority to regulate private conduct, those subject to regulation have attempted to avoid such regulation. One objection has been that the subject should not be regulated—regulation kills jobs, investment, innovation, etc.[1] A less direct attempt has been to impose procedural requirements on adopting any regulation or order; such procedures would slow the adoption of a regulation or order and perhaps, by raising the cost of adopting it, dissuade the agency from proceeding altogether.[2] The origins of the Administrative Procedure Act reflect this approach,[3] and current proposals to increase the procedural requirements for rulemaking continue this strategy.[4] Few, however, have attacked the legitimacy of administrative regulation altogether.

Although the Supreme Court’s use of the Nondelegation Doctrine in A. L. A. Schechter Poultry Corp. v. United States [5] and Panama Refining Co. v. Ryan [6] was a temporary attack, in that those opinions undermined the ability to delegate regulatory responsibilities to agencies, the opinions were limited and were subsequently interpreted in a way that effectively allows very broad delegations.[7] More recently, however, there has been a concerted effort arising in the academy, Congress, and the courts to undermine agency regulation as fundamentally illegitimate—if not unconstitutional.[8] Whether this effort will ultimately prevail is questionable, but this new and expanding attack deserves recognition.

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[1] President Trump Eliminates Job-Killing Regulations, WHITE HOUSE (Mar. 30, 2017), https://www.whitehouse.gov/blog/2017/03/30/president-trump-eliminates-job-killing-regulations.

[2] See infra Part IV (discussing a series of Executive Orders limiting administrative power).

[3] See, e.g., George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 NW. U. L. REV. 1557, 1678 (1996) (stating that the APA was “a compromise of a battle over conservatives’ attempts to hinder liberal administration programs by limiting the power of agencies to implement the programs”).

[4] See, e.g., The Regulatory Accountability Act, S. 951, 115th Cong. (2017) (calling for reform of federal rulemaking processes).

[5] A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 518 (1935).

[6] Panama Ref. Co. v. Ryan, 293 U.S. 388, 432 (1935).

[7] See, e.g., Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 474 (2001) (acknowledging the Court is loath to second guess Congress on how much authority it delegates to agencies).

[8] See Cary Coglianese & Kristin Firth, Separation of Powers Legitimacy: An Empirical Inquiry into Norms About Executive Power, 164 U. PA. L. REV. 1869, 1871–72 (2016) (identifying issues arising within interbranch relations with which academics and courts grapple).

Feeling the Heat: Climate Litigation Under the Canadian Charter’s Right to Life, Liberty, and Security of the Person

Nathalie J. Chalifour & Jessica Earle

“Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”

~The Honorable Judge Ann Aiken, U.S. District Court for the District of Oregon[1]

Climate change has become one of the most serious challenges of our time. It has been characterized as a “super wicked problem” because of how complex it is to address at a policy level.[2] And time is of the essence: climate change is already affecting the planet and its inhabitants in unprecedented ways, and scientific consensus shows that the impacts we are experiencing today are just the beginning.[3] In addition, climate change has important social justice implications–it is often the people and communities who are already facing discrimination, marginalization, or other injustices that are most vulnerable to its effects. The case of indigenous communities living in Arctic regions offers a poignant example.[4] Failure to take serious action without delay to reduce the greenhouse gas (GHG) emissions leading to climate change is a serious injustice to all, but especially to the most vulnerable.

Although the global community pledged in the 1992 United Nations Framework Convention on Climate Change (UNFCC) to “prevent dangerous anthropogenic interference with the climate system,” and developed nations committed to specific reductions under the Kyoto Protocol, global levels of the anthropogenic GHG emissions at the heart of climate change have continued to rise over the intervening years.[5]

Many hope the 2015 Paris Agreement marked a turning point in addressing what its 197 Parties consider to be an “urgent threat.”[6] Under that Agreement, nations pledged to reduce their GHG emissions in an effort to keep global average temperatures from rising more than 1.5-2°C.[7] While this is an important step forward, it is insufficient since, even if all Parties fulfill their individual mitigation pledges, it will not be enough to keep warming from crossing the 2°C threshold.[8] It is also insufficient because there is growing evidence that a rise of 1.5-2°C will still result in dangerous levels of warming.[9] The U.S. plan to withdraw from the Paris Agreement creates even greater uncertainty, leaving a glaring hole in global accountability.[10]

Given the poor track record of most countries, including Canada, in meeting their past commitments to reduce GHGs (or failing to make adequate commitments in the first place), many citizens around the world are searching for ways to hold their governments accountable for reducing GHG emissions.[11] While climate lawsuits are not new, a recent set of successful cases has given momentum to those seeking to force governments to take the steps needed to reduce GHG emissions.[12] The watershed moment for climate litigation was the Urgenda decision, where a Dutch court held that the government has a legal duty to reduce its GHG emissions to the level that the Intergovernmental Panel on Climate Change (IPCC) stated developing (Annex I) countries would be required to meet to avoid dangerous levels of climate change—a reduction of 25–40% below 1990 levels by 2020.[13] Even though the Dutch government had a GHG-emissions reduction policy in place that aimed to reduce emissions by 20% below 1990 levels by 2020, the Court held it was insufficient since it was not at the level of ambition needed to avoid dangerous climate change.[14] On the heels of the Urgenda decision, a Pakistani court held the government accountable for failing to implement its climate commitments, and ordered the government to take steps to reduce GHG emissions and help communities adapt to climate change.[15] In North America, eyes are on a lawsuit by 21 youth and a scientist acting on behalf of future generations, who are suing the federal government for enabling harmful levels of GHG emissions.[16] The plaintiffs in the case (Juliana v. United States), have cleared a number of important pre-trial motions brought by the defendants, and the case is set to proceed to trial in May 2018.[17] These and other litigation successes have turned the tide, and climate lawsuits aimed at holding governments similarly accountable to do their share to address this global problem are spring up in counties across the globe at a rapid pace.[18]

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[1] Juliana v. United States, 217 F. Supp. 3d 1224, 1250 (D. Or. 2016) (internal citation omitted).

[2] See Richard J. Lazarus, Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future, 94 CORNELL L. REV. 1153, 1159 (2009) (asserting this issue “defies resolution because of the enormous interdependencies, uncertainties, circularities, and conflicting stakeholders implicated by any effort to develop a solution”); Kelly Levin et al., Overcoming the Tragedy of Super Wicked Problems: Constraining Our Future Selves to Ameliorate Global Climate Change, 45 POL’Y SCI. 123, 124 (2012) (explaining that “super wicked problems” include four features: “[1] time is running out; [2] those who cause the problem also seek to provide a solution; [3] the central authority needed to address them is weak or non-existent; and [4] irrational discounting occurs that pushes responses into the future”).

[3] See, e.g., U.S. GLOB. CHANGE RESEARCH PROGRAM, CLIMATE SCIENCE SPECIAL REPORT: FOURTH NATIONAL CLIMATE ASSESSMENT 10 (2017) (noting the effects of climate change and predicting 1–4 feet of sea level rise by 2100).

[4] See infra notes 50–54 and accompanying text (discussing the challenges indigenous populations will face because of climate change).

[5] United Nations Framework Convention on Climate Change, art. 2, May 9, 1992, 1771 U.N.T.S. 107 [hereinafter UNFCCC]; Kyoto Protocol to the United Nations Framework Convention on Climate Change, art. 3(1), Dec. 11, 1997, 37 I.L.M. 22 (entered into force Feb. 16, 2005) [hereinafter Kyoto Protocol]; Canadian Environmental Sustainability Indicators: Global Greenhouse Gas Emissions, ENV’T & CLIMATE CHANGE CAN. 5 (2017), https://www.canada.ca/en/environment-climate-change/services/environmental-indicators/global-greenhouse-gas-emissions.html (last modified June 19, 2017).

[6] United Nations Paris Agreement, pmbl., Dec. 12, 2015, U.N. Doc. FCCC/CP/2015/10/Add.1 [hereinafter Paris Agreement].

[7] Id. art. 2(1)(A).

[8] Fiona Harvey, World’s Climate Pledges Not Yet Enough to Avoid Dangerous Warming – UN, GUARDIAN (Oct. 30, 2015), https://www.theguardian.com/environment/2015/oct/30/worlds-climate-pledges-likely-to-lead-to-less-than-3c-of-warming-un.

[9] Danny Harvey et al., Dangerous Anthropogenic Interference, Dangerous Climatic Change, and Harmful Climatic Change: Non-trivial Distinctions with Significant Policy Implications, 82 CLIMATIC CHANGE 1, 11 (2007); Joel Smith et al., Assessing Dangerous Climate Change Through an Update of the Intergovernmental Panel on Climate Change (IPCC) “Reasons for Concern, 106 PROC. NAT’L ACAD. SCI. 4133, 4134 (2009); James Hansen et al., Assessing “Dangerous Climate Change”: Required Reduction of Carbon Emissions to Protect Young People, Future Generations and Nature, 8 PLOS ONE 1, 3 (2013); James Hansen et al., Young People’s Burden: Requirement of Negative CO2 Emissions, 8 EARTH SYS. DYNAMICS 577, 578 (2016). For a discussion on climate science, see infra Part II.A.

[10] See infra notes 67–74 and accompanying text (discussing the Paris Agreement and the uncertainty regarding its ability to reduce GHG emissions).

[11] VANUATU ENVTL. LAW ASS’N, TAKING CLIMATE JUSTICE INTO OUR OWN HANDS: A MODEL CLIMATE COMPENSATION ACT 5 (2015), https://ssrn.com/abstract=2906252 (describing citizen demand to hold global companies and governments accountable for environmental harms).

[12] See infra Part II.C (discussing climate-liability lawsuits that plaintiffs have filed worldwide).

[13] Rb. Den Haag 24 juni 2015, C/09/456689/HA ZA 13-1396 m.nt. Hofhuis, Bockwinkel en Brand, para. 4.83 (Urgenda Foundation/Netherlands) (Neth.). Note that the decision is under appeal. To read more, see The Urgenda Climate Case Against the Dutch Government, URGENDA, http://www.urgenda.nl/en/themas/climate-case/ (last visited May 4, 2018).

[14] The Dutch government was on track to reduce emissions by 14–17% at the time the Urgenda case was being litigated. Urgenda, C/09/456689/HA ZA 13-1396 paras. 4.31, 4.33, 4.70, 4.84.

[15] Leghari v. Pakistan, (2015) WP No. 25501/201 (Punjab) paras. 13, 19, 25 (Pak.) (discussing how the court first constituted the Climate Change Commission and then the Standing Committee on Climate Change because the Pakistani government failed to implement climate change action).

[16] Juliana v. United States, 217 F. Supp. 3d 1224, 1233 (D. Or. 2016).

[17] See, e.g., Opinion and Order, Doc. 83 at 51–52, 54, Juliana v. United States, No. 6:15-cv-01517-TC (D. Or. Nov. 10, 2016) (denying defendant’s Motion to Dismiss because the defendant’s actions “threaten plaintiffs’ fundamental constitutional rights to life and liberty”).

[18] U.N. ENV’T PROGRAMME, THE STATUS OF CLIMATE CHANGE LITIGATION 10–11 (2017), http://columbiaclimatelaw.com/files/2017/05/Burger-Gundlach-2017-05-UN-Envt-CC-Litigation.pdf.

 

 

Value Hypocrisy and Policy Sincerity: A Food Law Case Study

Joshua Ulan Galperin

In the spring of 2017, the United States Senate considered a bill that would significantly change healthcare policy in the country.[1] This began in 2009 and 2010 when Democrats in Congress and from President Obama’s White House crafted the Affordable Care Act.[2] That process was the subject of criticism for its lack of transparency, seen as backroom secrecy designed to avoid public debate.[3] Fast forward to spring 2017, as Republicans in Congress and from President Trump’s White House pushed another healthcare bill.[4] In 2017, the same Republicans who criticized secrecy practiced it; the same Democrats who practiced it have criticized it.[5] This is remarkably articulate hypocrisy, even for Washington, D.C. It clearly spotlights a procedural breach in which policymakers focus squarely on the outcomes of the policymaking process and ignore satisfaction with the process itself.

Scholars have long understood the importance of procedure. The legal and psychological literatures include robust consideration of procedural fairness.[6] But the concept of hypocrisy—so abundant in politics—provides additional and novel insight into the appropriateness, legitimacy, and worth of policy instruments.

New research from psychologist Jillian Jordan and colleagues at Yale University reinforces that people hate hypocrisy, and suggests that the hatred is not because hypocrisy is ineffective or because hypocrisy demonstrates any specific instrumental weakness.[7] Hypocrisy is condemned and unsatisfying because it is an intentional disconnect between the values signaled in words and achieved in deeds.[8] We condemn an intentional disconnect between words and deeds, even if the hypocritical deeds are in some way useful.[9] Thus, a policymaking process, such as that around healthcare, which signals transparency but practices secrecy, is unwanted hypocrisy regardless of one’s preference for more or less government involvement in health insurance. This Article argues that the concept of hypocrisy is a useful analytical tool in policymaking and policy advocacy.

The problem of hypocrisy in policymaking is obvious in the policy process, where the words and behaviors of politicians are so often in opposition.[10] But this Article goes deeper to focus on hypocrisy in policy-instrument choice. A set of public values will motivate any given policy goal. For instance, the inherent rights of nature may influence the goal of better environmental quality.[11] The instrument used to achieve the policy goal may or may not embody those same public values. Tradable pollution permits can achieve the goal of environmental protection,[12] but buying and selling pollution may also undermine rights of nature as a motivating value.[13] Hypocrisy arises here when the values of the instrument do not match the values that motivate the goal. Thus, to avoid hypocrisy, policymakers should develop and use policy instruments (roughly equivalent to an individual’s deeds) that reflect the values that motivate the policy goals (roughly equivalent to an individual’s words).

Drawing on the new Yale psychology research suggesting that people decry hypocrisy because of the disconnect between personal signaling and personal deeds, we might call the disconnects between the values sought in policy goals and the values reflected in policy instruments value hypocrisy.[14] We may then call the alternative policy sincerity, in which the disconnect closes and the values that motivate a policy goal are embedded in the policy instrument.

The word values can raise more questions than it answers. To avoid unnecessary confusion, throughout this article, the standard dictionary definition applies. The Oxford English Dictionary defines “values” as “the principles or standards of a person or society, the personal or societal judgment of what is valuable and important in life.”[15] Values, therefore, simply means the ideals, ethics, beliefs, opinions, or basic criteria people use for deciding what they want.

Given the unique importance of food to our bare survival and frivolous indulgences, this Article introduces hypocrisy as an analytical tool for instrument choice by using the area of food law and policy as a case study.

For example, Wal-Mart’s foray into the local food movement and the United States Department of Agriculture’s (USDA) National Organic Program breathe life into what have so far been general assertions.[16] In 2010, Wal-Mart announced a program to double its sales of locally grown produce.[17] While this program could have a range of outcomes—from economic growth to sustainability benefits[18]—if the values that motivate local food activists are closer connections to farmers, or transparency in production, the giant retailer’s new program would not reflect those motivators. In organic agriculture, the USDA’s organic seal is now a ubiquitous symbol.[19] The seal announces that farmers followed certain rules in raising or growing their products.[20] If the value that motivates organic production is consistency, then a uniform federal National Organic Program probably advances this value. But, if the values include individuality, then the National Organic Program fails to capture this value.[21] In other words, in both the private strategies of Wal-Mart or the public policies of the National Organics Program, there may be hypocrisy.

This Article makes two points about the connection between policy instruments and their motivating values. First, and most importantly, analysis of policy-instrument choice tends to focus on the ability of the instrument to achieve the policy goal. I argue that the non-instrumental nature of the policy tool—its value sincerity—deserves increased attention. That is to say, an instrument that can achieve a stated goal may nevertheless be suboptimal if it does not fit with the values that motivate the policy goal in the first place. This Article’s second point, which should serve as a case study to illuminate the first, is that common law litigation deserves more consideration as a food law and policy instrument because—in addition to consequential benefits of the common law—the common law fits well with the values such as community empowerment, participatory decision-making, and progressive traditionalism that motivate the food movement.

Section I of this Article surveys the ways in which policymaking strategies and legal doctrines intentionally prioritize either process or consequences, but always see these two foci as linear rather than reflexive. This view should contextualize the ideas of value hypocrisy and policy sincerity by distinguishing the common focus on an instrument’s effectiveness from a renewed focus on an instrument’s sincerity. Section II introduces the food movement as a case study, and seeks to approximately define the movement’s policy goals and motivating values in order to assess how these values fit with different policy instruments. Section III looks closely at the common law, with a special emphasis on tort law as a policy tool. This section reviews theories of common law and the values that are part of common law jurisprudence. Section IV first explores the existing literature on the role of common law to advance food policy, concluding that while the little analysis that exists does support the use of common law, it uses an instrumentalist approach. Far from condemning this approach, Section IV affirms the current literature and the instrumental importance of common law as a food-policy tool—and enhances this conclusion—arguing that by fitting values between tool and goals, the common law can offer significant and additional instrumental and non-instrumental benefits to the food movement.

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[1] E.g., Thomas Kaplan & Robert Pear, Vote Delayed as G.O.P Struggles to Marshal Support for Health Care Bill, N.Y. Times (June 27, 2017), http://www.nytimes.com/2017/06/27/us/politics/republicans-struggle-to-marshal-votes-for-health-care-bill.html (noting the “Republicans’ seven-year effort to dismantle” the Affordable Care Act.).

[2] E.g., Aaron Blake, 20 GOP Criticisms of Obamacare’s Secrecy that Now Look Eerily Hypocritical, Wash. Post (June 20, 2017), https://www.washingtonpost.com/news/the-fix/wp/2017/06/20/20-gop-criticisms-of-obamacares-secrecy-that-now-look-eerily-hypocritical/?utm_term=.74088af0b405 (suggesting that Democrats secretly passed the Affordable Care Act).

[3] Id.

[4] Id.

[5] Id.

[6] E.g., John W. Thibaut & Laurens Walker, Procedural Justice: A Psychological Analysis 102–03 (1975) [hereinafter Thibaut & Walker, Procedural Justice] (appraising the procedural system of justice); John Thibaut & Laurens Walker, A Theory of Procedure, 66 Cal. L. Rev. 541 (1978) [hereinafter Thibaut & Walker, A Theory] (suggesting that procedure is an avenue for resolving legal disputes); Tom R. Tyler, et al., Social Justice in a Diverse Society (1998) (pointing out literature on procedural fairness).

[7] Jillian Jordan, et al., Why Do We Hate Hypocrites? Evidence for a Theory of False Signaling 1 (Association for Psychological Science, 2017) [hereinafter Jordan, False Signaling].

[8] Id. at 1-2.

[9] Id. at 2.

[10] Id.

[11] Anthony Weston, Beyond Intrinsic Value: Pragmatism in Environmental Ethics, 7 Envtl. Ethics 321, 323, 337 (1985).

[12] E.g., Eric Pooley, 15 Years of “Ways That Work” for People and Planet, Envtl. Def. Fund (Sept. 12, 2014), https://www.edf.org/blog/2014/09/12/15-years-ways-work-people-and-planet (providing examples of economic mechanisms to protect the environment).

[13] E.g., Kirk Junker, Ethical Emissions Trading and the Law, 13 U. Balt. J. Envtl. L. 149, 170 (2006) (discussing how market price may motivate emission reduction more than environmental reasons).

[14] Jordan, False Signaling, supra note 7.

[15] Values, Oxford English Dictionary (2d ed. 1989).

[16] Stephanie Clifford, Wal-Mart to Buy More Local Produce, N.Y. TIMES (Oct. 14, 2010),
http://www.nytimes.com/2010/10/15/business/15walmart.html?mcubz=2.

[17] Id.

[18] Id.

[19] USDA Reports Record Growth in U.S. Organic Products, USDA (April 4, 2016), https://www.usda.gov/media/press-releases/2016/04/04/usda-reports-record-growth-us-organic-producers.

[20] Susan A. Schneider, Food, Farming, and Sustainability: Readings in Agricultural Law 662–64 (2d ed. 2016).

[21] See id. at 662 (emphasizing the uniform standards that the Organic Foods Production Act of 1990 sought to impose on all producers).

The New Politics of New Property and the Regulatory Takings Clause

Christopher Serkin

The politics of property is being turned on its head. Nowhere is that more evident than at the intersection of public power and private rights. That intersection—defined in part by the Takings Clause[1]—has a conventional political valence. Liberals and progressives favor broad regulatory power.[2] Conservatives and libertarians favor strong protection for private property.[3] Those predictable positions have become increasingly unstable, however. In many different regulatory contexts—from zoning, to eminent domain, to regulatory property—instinctive political reactions no longer track the underlying substantive stakes of various property conflicts.[4]

It is especially important to recognize these new trends and pressures given the contemporary state of politics. With extreme polarization, people increasingly adopt positions reflexively, responding more to the political battle lines than to the substance of the issues.[5] The result is liberals sometimes fighting against what should be their underlying normative commitments towards progressive redistribution and conservatives the opposite.[6] At the very least, failing to recognize the evolving stakes of property disputes means that unnoticed schisms have developed on the left, in particular.[7] Identifying those fault lines is the first step to reconciling them.

This Essay offers a broad gloss on the traditional politics of property protection and then catalogues a number of ways in which those politics have been changing. In many cases, the account is of fragmentation and fracture as once stable commitments have become much more contingent and fact dependent.[8] Admittedly, this characterization paints with an extremely broad brush. That is both its contribution and its weakness. This short Essay deliberately simplifies the characterization of preferences across the political spectrum. Much more nuanced definitions would better track the complexity of the underlying issues. Judges and scholars discussed below might also object to being lumped together in one group or another. Furthermore, given these broad definitions, it is always possible to find counter-examples where the politics lined up differently in the past or line up differently today. There is nevertheless value in this Essay’s rough-cut approach. It reveals trends that one might miss when looking with a narrower gaze. The analysis that follows deliberately sacrifices some specificity in order to capture higher-level themes and observations.

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[1] U.S. Const. amend. V (“[N]or shall private property be taken for public use, without just compensation.”).

[2] See, e.g., Nestor M. Davidson, Property’s Morale, 110 Mich. L. Rev. 437, 443 (2011) (arguing for expansive view of regulatory power).

[3] See, e.g., Joseph Singer, The Ownership Society and Takings of Property: Castles, Investments, and Just Obligations, 30 Harv. Envtl. L. Rev. 309, 312 (2006) [hereinafter Singer, Just Obligations] (“Conservatives tend to view ownership as embodying both expansive rights and strong protections from government interference. The conservative framework sees property and regulation as opposites: broad property rights mean less regulation and more regulation means less protection for property rights.”).

[4] See discussion infra Part II (describing the “shifting political valence of property and property protection,” which conventional politics does not capture).

[5] See, e.g., Libby Jenke & Scott A. Huettel, Issues or Identity? Cognitive Foundations of Voter Choice, 20 Trends Cognitive Sci. 794, 800–01 (2016) (finding that people voting consistently with identity politics sometimes vote against their own interests).

[6] See infra notes 100–14 and accompanying text (describing liberal support for NIMBY zoning).

[7] Joseph William Singer, Kormendy Lecture, Justifying Regulatory Takings, 41 Ohio N.U. L. Rev. 601, 626–27 (2015) [hereinafter Singer, Kormendy Lecture].

[8] See id. (discussing contradictions within conservative and liberal approaches to property protection).

Trust or Bust: Complications with Tribal Trust Obligations and Environmental Sovereignty

Nadia B. Ahmad

The National Environmental Policy Act (NEPA) and participation rights should mean more, not less, on tribal lands when respect for tribal sovereignty and federal tribal trust responsibilities exists. This Article proposes a rights-based approach to reinvigorate tribal treaty regimes based on a historico-legal analysis of the interconnected right-of-way doctrine and environmental impact statement process for pipeline projects in “Indian Country.” This legal strategy will enrich the democratic approaches to tribal consultation, and respond to environmental justice concerns arising from lax regulations and the subsequent environmental degradation. The aim of this Article is to reframe the responses to tribal environmental challenges on account of deficiencies in NEPA and prior tribal trust claims. It also offers recommendations to overcome those challenges through analyzing the history of right-of-way regulations in Indian Country, the standards for impact statements, and treaty language. Moreover, this Article assesses tribal sovereignty through the lens of energy infrastructure projects on Indian lands, and concludes that updates to the federal right-of-way law chisel away at tribal rights to land, property, and self-determination.[1] Without a thorough reassessment of the essential rights-of-way laws that affect pipeline permitting on tribal lands, tribal environmental sovereignty will be compromised, and tribal land will be more prone to environmental degradation and pollution from increased toxins and hazards associated with oil and gas transport. This Article argues that using existing NEPA procedural remedies,[2] in concert with provisions from the updated rights-of-way regulations in Indian Country, provides project development and litigation outcomes more attenuated to Indian interests.[3]


American Indian tribes face exceptional land use, property, and environmental challenges because of hydrocarbon transport projects on their lands.[4] Due to the tribes’ various geographic locations throughout the United States, and their proximity to existing and future hydrocarbon reserves, pipelines crisscross tribal lands with increased frequency and carrying capacity.[5] A hydrocarbon transport project in a right-of-way corridor creates an economically efficient means of passage for energy resources, but such a project also sullies tribal property, sovereignty, and environmental rights. From a legal perspective, a pipeline poses significant risks to the use and enjoyment of tribal land, and uniquely threatens sacred space.[6]


While concern for pipeline siting is ubiquitous, what is less conspicuous––but equally significant––is the property and environmental rights impact of energy projects on tribal lands and on former tribal lands ceded to the United States.[7] More than 50 million acres of Indian trust lands exist in the United States.[8] Thousands of miles of easements traverse tribal lands for various purposes as crucial fragments of the national infrastructure.[9] Significant swaths of tribal lands lay within the path of major energy infrastructure projects.[10] American Indian communities experience an imbalanced proportion of environmental degradation on account of the mineral development in North America.[11]


Without improved tribal consultations and more robust treaty claims, the updated rights-of-way regulations in Indian Country will lead to a steady and blatant encroachment of tribal lands. Moreover, this will also affect all future development of energy easements, including lands of the White Earth Band of Ojibwe in northwestern Minnesota, Navajo Nation in Texas and New Mexico, and the Seminole Tribe of Florida’s Big Cypress Reservation.[12] Under these regulations, native environmental protection concerns are devalued and underappreciated, particularly in negotiating and/or contesting pipeline siting and permitting.[13] Based on the unique nature of the pipeline industry and asset specificity, long distance pipelines create distinct financing and contracting matters.[14] “[A] century of dealing with oil and gas pipelines shows just how hard it is to keep them from being used as John D. Rockefeller first discovered they could be—as levers to frustrate competition in commodity markets and as profitable tollgates lying athwart commodity trade routes.”[15] The economics of the pipeline industry also make the business climate adverse to environmental and tribal land concerns.


Part I provides the jurisdictional overlay of rights and duties involved with projects on tribal lands. Part II examines the legal nuances in the development of right-of-way regulations in what constitutes Indian lands. Parts II.C and II.D posit that NEPA sufficiently allows for stronger claims against pipeline projects. Analyzing tribal challenges to pipelines in the cases of Sisseton-Wahpeton Oyate v. U.S. Department of State[16] and TransCanada Pipeline and White Earth Nation v. U.S. Department of State[17] showcases distinct methodological opportunities to take advantage of legal remedies implicit in NEPA.[18] To counter threats to tribal environmental sovereignty by an ever-expanding consortium of oil and gas operations, Part III offers an ancillary proposal of normative guidelines. These guidelines heighten transparency, incorporate a richer understanding of the NEPA process in energy permitting, and enhance measures for a better participatory process to avoid legal showdowns, such as the Dakota Access Pipeline Project.

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[1] Rights-of-Way on Indian Lands, 80 Fed. Reg. 79,258 (Dec. 21, 2015) (to be codified at 25 C.F.R. pt. 169) (promulgating a rule “streamlin[ing] the process for obtaining Bureau of Indian Affairs (BIA) grants of rights-of-way on Indian land and BIA land, while supporting tribal self-determination and self-governance”). See also 25 C.F.R. pt. 169 (2016) (prescribing the procedures, terms, and conditions under which rights-of-way over tribal lands may be granted).

[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331–4370 (2012). The Revised Draft Guidance for Greenhouse Emissions and Climate Change Impacts of the White House Council on Environmental Quality (CEQ) provides additional support for environmental protection. The legacy of previous attempts at climate change adaptation measures is diminishing with a new White House administration. Yet, existing federal regulations and environmental protection measures—along with private-public partnerships—will minimize the assault on environmental rights by federal leadership that is attuned to the interests of the fossil fuel industry. See White House Council on Environmental Quality, Revised Draft Guidance for Greenhouse Emissions and Climate Change Impacts 1–2 (Dec. 18, 2014), https://obamawhitehouse.archives.gov/sites/default/files/docs/nepa_revised_draft_ghg_guidance.pdf.

[3] Rights-of-Way on Indian Lands, 80 Fed. Reg. 72,492, 72,492 (Nov. 19, 2015) (to be codified at 25 C.F.R. pt. 169) (promulgating a rule “[s]treamlining the process for obtaining a right-of-way on Indian land”). The total climate change litigation in the United States exceeds that of the rest of the world combined. By 2013, more than 420 climate cases had been resolved in the United States versus 173 for the rest of the world. Michael B. Gerrard, Scale and Focus of Climate Litigation Outside the U.S., N.Y. Law Journal (Mar. 12, 2015), http://web.law.columbia.edu/sites/default/files/microsites/climate-change/nyljscaleandfocusofclimatelitigationoutsideofunitedstates_0.pdf.

[4] See Bill McKibben, Why Dakota Is the New Keystone, N.Y. Times (Oct. 28, 2016), https://www.nytimes.com/2016/10/29/opinion/why-dakota-is-the-new-keystone.html (discussing Native Americans conducting peaceful protests against an oil pipeline seeking to address clean water, environmental justice, and climate issues).

[5] See Jack Healy, North Dakota Oil Pipeline Battle: Whose Fighting and Why?, N.Y. Times (Dec. 2, 2016), https://www.nytimes.com/2016/11/02/us/north-dakota-oil-pipeline-battle-whos-fighting-and-why.html (stating that there are 2.5 million miles of pipelines crossing the United States).

[6] See id. (discussing the Standing Rock Sioux Tribe’s opposition to the Dakota access pipeline for crossing over sacred tribal land).

[7] Andrew S. Montgomery, Tribal Sovereignty and Congressional Dominion: Rights-of-Way for Gas Pipelines on Indian Reservations, 38 Stan. L. Rev. 195, 199 (1985).

[8] C.E. Willoughby, Native American Sovereignty Takes a Back Seat to the “Pig in the Parlor:” The Redefining of Tribal Sovereignty in Traditional Property Law Terms, 19 S. Ill. L.J. 593, 601 (1995).

[9] Todd Miller, Comment, Easements on Tribal Sovereignty, 26 Am. Indian L. Rev. 105, 105 (2001). Rights-of-way easements encompass “highways, railroads, electric transmission lines, oil and gas pipelines, and various communication facilities.” Id.

[10] See Daniel W. Hester, Protection of Sacred Sites and Cultural Resources: An Obstacle
to Development in Indian Country?
, 23A Rocky Mtn. Min. L. Inst. 11 (1989) (noting that development of the Powder River region would impact the Norther Cheyenne Tribe).

[11] James M. Grijalva, Control and Accountability: The Twin Dimensions of Tribal Sovereignty Necessary to Achieve Environmental Justice for Native America, in Tribes, Land, and the Environment 30 (Sarah Krakoff & Ezra Rosser eds., 2012).

[12] See Miller, supra note 9, at 130 (identifying the need for more energy easements across tribal land to satisfy the demand for more transmission capacity).

[13] See Rights-of-Way on Indian Lands, 80 Fed. Reg. 72,492, 72,492 (Nov. 19, 2015) (to be codified at 25 C.F.R. pt. 169) (noting the absence of environmental considerations, despite the streamlined process). See also 25 C.F.R. § 169.3 (2016) (giving the Secretary authority to grant right-of-way permits).

[14] Jeff D. Makholm, The Political Economy of Pipelines: A Century of Comparative Institutional Development 175 (2012).

[15] Id. at 176.

[16] Sisseton-Wahpeton Oyate v. U.S. Dep’t of State, 659 F. Supp. 2d 1071, 1079 (D.S.D. 2009).

[17] White Earth Nation v. Kerry, No. 14-4726 (MJD/LIB), 2015 WL 8483278, at *1 (D. Minn. Dec. 9, 2015).

[18] The rights-of-way revisions include: (1) “Eliminating the need to obtain BIA consent for surveying in preparation for applying for a right-of-way”; (2) “Establishing timelines for BIA review of rights-of-way requests”; “Clarifying processes for BIA review of right-of-way documents”; (4) “[A]llowing BIA disapproval only where there is a stated compelling reason”; (5) “[P]roviding greater deference to Tribes on decisions affecting lands”; (6) Clarifying the authority by which BIA approves rights-of-way; and (7) “[E]liminating outdated requirements that apply to specific different types of rights-of-way.” Rights-of-Way on Indian Lands, 80 Fed. Reg. 72,492, 72,492 (Nov. 19, 2015) (to be codified at 25 C.F.R. pt. 169).

Same-Sex Marriage, Religious Accomodation, and the Race Analogy

Shannon Gilreath & Arley Ward

Can a state government allow its officials to opt-out of issuing marriage licenses based on religious objections to same-sex marriage? Similarly, can a state create special religion-based exceptions to anti-discrimination laws? This article examines these questions by comparing traditional objections to same-sex marriage and racial integration, and by delving into how each category is treated by anti-discrimination law. We examine the ultimate refusal to legally accommodate analogous religiously-motivated objections to racial integration. We conclude that any such exemptions would be unconstitutional violations of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Understanding the history of religion-based arguments justifying discrimination is crucial to this analysis. Proponents of far-reaching religious exemptions from otherwise generally applicable anti-discrimination laws too often portray the advent of same-sex marriage as unprecedented and terrifyingly unique. So terrifying and unique, it is claimed, that the law must recognize unprecedented new rights for individuals refusing to accept the evolution of the law because of their religious beliefs. Understanding the striking similarities between arguments justifying anti-gay discrimination and anti-black discrimination for religious reasons is crucial to exposing this fallacy.

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Institutionalizing a Fully Realized Right to Food: Progress, Limitations, and Lessons Learned from Emerging Alternative Policy Models

Nadia Lambek and Priscilla Claeys 

Twenty years ago, in 1996, world leaders, activists, and food producers met in Rome for the World Food Summit. One of the many outcomes of this meeting was a clear direction to the United Nations human rights bodies that States and stakeholders were interested in how the right to food could be operationalized at the national level. Over the past two decades, the right to food has gone through a period of intense normative elaboration, from a little theorized right to a largely fully elaborated human rights framework with corresponding State obligations and interpretations applying the right to food to a variety of contexts. Today there is a greater understanding of the concrete implications of the right to food as a legal doctrine for a range of state, international, and private actors, as well as a greater understanding of the importance of adopting a holistic approach to food insecurity.

The right to food has now entered a new era, with advocates focused on its promotion, adoption, and implementation, particularly at the national level. As a result of these efforts, the visibility of the right to food has increased remarkably over the last decade, particularly through the work of a number of non-governmental organizations (NGOs), civil society organizations, and the United Nations Special Rapporteurs on the right to food. States are increasingly adopting the right to food framework—or more accurately some elements of the framework—as a policy guide or as a legal norm through a variety of laws, constitutional amendments, policies, and programs. The right to food as a guiding framework is also increasingly discussed in international fora, notably at the United Nations Committee on World Food Security (CFS).

This Article focuses on the right to food in the context of national implementation—and not as an analytical tool for assessing the ails of the food system or as a uniting principle between different constituents. It argues that, despite the advancements noted above, little progress has been made overall at legal, policy, and institutional levels in effectively creating an environment in which the right to food can be fully realized in national contexts. Indeed, the adopted legal and policy frameworks have largely focused on the obligations of states to fulfill the right to food, leaving unaddressed the obligations to respect and protect the right to food. This has resulted in a failure to fully endorse the right to food in such a way that it would lead to the structural change needed to improve the realization of the right and to decrease food insecurity for individuals and communities.

Many factors can be credited with limiting the success of the right to food as a legal tool. These include a lack of political will among States and a reluctance to recognize economic and social rights; increased corporate capture of food governance fora and of the food supply chain more broadly; a lack of political constituency for the right to food, with implementation efforts largely stemming from a handful of NGOs and the Food and Agriculture Organization of the United Nations (FAO) right to food team; and weak implementation mechanisms, which often fail to reflect the core State obligations imposed by the right to food.

While these obstacles and limitations are well documented in the literature, we argue in this Article that some of the most relevant and interesting developments allowing us to reflect on the challenges facing the right to food have taken place not within the right to food field, but outside and in parallel. Indeed, the last decade has seen a rise in new and alternative models for transforming the food system, such as alternative food networks, local food policy councils, and food sovereignty. These are often implemented in response to the challenges and the limited progress achieved with the right to food. These alternatives—often defended by local and transnational peasant organizations and food movements more generally—have succeeded not only in creating new narratives about the structural changes needed in our food system, but also in establishing new rights, institutions, and governing practices. Our objective in this Article is to document these developments and the lessons we believe they bear for right to food advocates and practitioners. These alternatives provide an important lens through which to view the perceived limits of the right to food as a legal tool. Further, taking them seriously invites us to expand our understanding of the right to food in at least two ways: (1) towards a more inclusive participation of citizens in the governance of food and agriculture; and (2) towards a transition to more localized food systems.

In Part I of this paper, we provide a brief overview of the right to food’s legal framework. In Part II, we review some of the key developments in implementing the right to food over the last two decades—both with respect to national implementation of legislation, as well as through policies. We show that progress has been made when it comes to fulfilling the right to food, but that much needs to be done to respect and protect the right. We also highlight a number of accountability challenges that need to be addressed. In Part III, we assess alternative models, grounded in the alternative paradigm of food sovereignty, that have emerged from the bottom up at the local, national, and regional levels over the past two decades. We discuss food sovereignty laws and policies, as well as alternative food networks and food policy councils. We then move to the international level, where we explore efforts at institutionalizing space for civil society in food system governance at the global level—specifically at the CFS. We also discuss the current elaboration of the Declaration on the Rights of Peasants and Other People Working in Rural Areas at the United Nations Human Rights Council as an articulation of new human rights norms to reflect the experience and claims of peasants and other people working in rural areas. Drawing from the alternative models, we conclude with a discussion of how the right to food could better address the twin crises of accountability and participation.

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Keynote Address

Marcos Orellana 

Thank you Stephanie for that kind welcome. It is a real honor and pleasure for me to be here today with all of you, breathing the fresh air of a cool morning in Vermont. I thought I should start this keynote presentation by suggesting that for a minute we look at ourselves from the perspective of how future generations will see us. I will submit to you there is a disconnect between how we see ourselves and how we will be seen (and judged) by future generations.

If we take a moment to look back and think about the practice of slavery and humans as property, or perhaps look at the dark ages and secret trials. We think about these as barbaric practices, but they did not happen that long of a time ago. When we see ourselves today, I think most of us will have an image of “well, we’re certainly somewhat sophisticated,” and as Dean Mihaly put it: “educated.” Many of us wear a tie to appear respectful. But how will we be seen in the future? What are the kinds of issues that we are accepting and practicing and causing in the world today?

We are witnesses to unprecedented levels of inequality, destitution, and environmental deterioration. Much has been said about climate change and the apocalyptic future it will bring about; for many that dire future is already present. Much has been written about the global public health crisis caused by exposure to chemicals and hazardous wastes, and about the fact that we as humanity are causing, as it is called, the sixth wave of biodiversity loss involving an unprecedented loss of species. For many of these species there is no tomorrow, there is no later, there is no coming back. So we as humanity are responsible for that extinction. How will that fact be seen by future generations? Do we still look that respectable? Is there a disconnect there? 

The magnitude of the forces at play today is unprecedented, and so for that same reason, our response to those forces needs to be unprecedented. That is where human rights and the environment come into play: as new tools to address contemporary realities.

This morning I expect to lay out the general elements and boundaries of the human rights and environment field, so that the panels can delve deeper into specific issues. And so by way of roadmap, I will start laying out the evolution of human rights and the environment since its inception. That background will help determine what is the current state of play. Second, I will talk about lessons we have learned. Have we learned anything in the last four or five decades? Finally, I will address some of the challenging debates over the global recognition of the right to a healthy environment and conclude.

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Scrutinizing Strict Scrutiny

Roy G. Spece, Jr., & David Yokum 

Standards of review dominate personal liberties practice, and we must take them seriously if we heed calls to take (constitutional) lawyering seriously. Standards are poorly articulated and undertheorized. They must be properly fashioned by exploring and reconciling the logic and purpose of each of their components. We do this with strict scrutiny both to energize an important standard of review and model a proper approach. Our analysis is primarily within the context of higher education affirmative action cases because they typify the ambiguity of strict scrutiny; one such case—Fisher v. University of Texas at Austin—was set to be argued on December 9, 2015.

We derive a preferred articulation of strict scrutiny with six achievable but rights-protective requirements. Strict scrutiny is especially energized by separating its ends question about compellingness from its means question about interest advancement. Then state interests are compelling only if of a special nature. This is analogous to requiring fundamental rights to have special attributes irrespective of any intrusion. 

The preferred version of strict scrutiny is applied to Fisher, which involves a university program that considers race as one diversity factor combined with a top ten percent law. Our contrarian conclusion is that the law is unconstitutional, but that the Court should save the University program by severing it from the law. It is contrarian because most authorities—whether invoking an anti-subjugation, anti-classification, or anti-balkanization perspective—accept supposedly racially neutral top ten percent laws. We invoke a nuanced conception of anti-balkanization applicable in Fisher’s unique circumstances. Our conclusion is also based on a rich conception of academic freedom with two complementary aspects that place it at the foundation of freedom of speech. These aspects combine to protect universities from external impositions such as the Texas law, allowing them to accommodate diversity and demonstrated academic capacity.

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Protection Against the Economic Fears of Old Age: Six Micro and Macro Steps for Bridging the Gap in Retirement Security Between Blacks and Whites

Philip C. Aka, Aref A. Hervani, & Elizabeth Arnott-Hill 

Retirement security is financial readiness. It exists when a worker, especially one on the cusp of retirement, subjectively believes that he or she has enough resources to guarantee a standard of living similar to that before retirement—and when in fact, objectively, a full complement of savings in Social Security, employer-sponsored benefits, and personal assets exists to guarantee that pre-retirement standard of living. The economic difficulties of the past decade, signified by the Great Recession of 2007 to 2009 and an accompanying slow recovery, have combined to synergistically inflict a negative effect on many financial investment resources, including Black retirement security. To be sure, the recession did not create the situation that some commentators poignantly liken to a “crisis.” For example, “[f]rom 1979 to 2006, African-American private sector workers saw their overall pension coverage go down” by 8.3%, compared to Whites, who experienced a decline of just 3.7%.  However, the economic hard time and its aftermath have exacerbated the retirement unreadiness of many older Americans, notably including Blacks. 

We argue that in the aftermath of the economic downturn, retirement security for Black people is predicated on micro steps comprised of changes in the tripod of Social Security, employer-sponsored pension plans, and personal assets, implemented in tandem with macro steps in the form of a reduction in disparities between Blacks and Whites in education, healthcare, and housing. These are three critical areas of American national life; without reducing disparities in these areas, the chances for Black retirement security may be bleak for many years to come. In developing our argument, we did three things. First, we highlighted the shape of the retirement security gap between Blacks and Whites in a discussion that integrates the six variables at the focus of this Article. Second, we presented a historical narrative necessary for proper understanding of our research that, among other materials, draws on President Franklin D. Roosevelt’s model of a right to adequate protection from the economic fears of old age, as part of a bill of economic rights meant to complement the original bill of political rights that the United States adopted in 1791. Third and finally, we zeroed in our attention on the six steps for closing the retirement gap between Blacks and Whites at the cynosure of this work. Of those six steps, we devoted extensive space and analysis to personal assets, commensurate with the threat that this benefit source poses for the retirement security regime, which is indicative of the shift in responsibility for retirement readiness to individual workers over many years that predated the economic difficulties of the past decade.

The micro steps are measures that, by their nature, are not focused on Black people as such because they benefit all United States workers, without subscribing to the amorphous notion of a “rising tide lifts all boats.” In contrast, the macro steps focus more directly on Black people and Black seniors. As the ensuing analysis makes clear, the two sets of steps somewhat overlap. Studies on retirement security focus on United States seniors as a whole. But there are equally many studies on minorities, among them Black people. This Article belongs in the latter category, but at the same time departs from those studies in that it is more specifically focused on Blacks, in an integrated approach that assembles under one analytic bundle the key elements of changes and disparity reduction that we identify as critical for Black retirement security in the aftermath of the Great Recession and its accompanying slow recovery. Blacks and Whites are just two of several races in the United States’ multiethnic society. Accordingly, the measurement or comparison to Whites is a mostly heuristic tool meant to facilitate analysis, focusing on the national government. 

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