Clarifying the Virginia Tidal Wetlands Act: Creating Criteria to Propel Implementation of Living Shorelines

By Charlotte Bieri | Staff Editor

March 18, 2024

Consider the scenario of a property owner, facing a mosquito infestation on their land, who decides to drain stagnant water by diverting it onto a neighboring property. This seemingly practical solution for one landowner, eager to address their immediate concern, creates a mosquito-free haven for themselves but inundates their neighbor with unwanted water and potential flooding issues.

The Virginia Marine Resources Commission (VMRC) acknowledged 27 years ago that hardened shorelines while addressing immediate erosion issues, harm water quality, exacerbate flooding, and diminish commercial marine stocks.[1] Like the above scenario, although the hardened structures are immediate solutions for shoreline erosion on waterfront property, they cause more harm in the long run.

Since then, the Virginia Assembly has been strengthening the language in the Virginia Tidal Wetlands Act (VTWA) to increase the implementation of living shorelines. Living shorelines are a shoreline stabilization method that involves the strategic placement of natural materials to “enhance coastal resilience and attenuation of wave energy and storm surge.”[2] The VTWA is the first statutory language linked living shorelines to coastal resilience goals.[3]

Beyond their ecological benefits, living shorelines play a pivotal role in water quality by filtering nutrients and pollutants.[4] Acting as effective absorbers of storm surges and floodwaters, they provide a natural defense mechanism against extreme weather events.[5] Additionally, living shorelines act as carbon sinks, mitigating climate change by sequestering carbon in coastal ecosystems.[6] Beyond environmental benefits, living shorelines have broader social and economic impacts, supporting diverse fish and wildlife populations, enhancing property values, and fostering community enjoyment through recreational activities.[7] As holistic alternatives to conventional stabilization methods, living shorelines are a sustainable and community-enriching approach to coastal management.

The VTWA was created in 1972 to preserve wetlands while accommodating economic development.[8] In 2011, the VTWA established living shorelines as the “preferred” shoreline stabilization method in hopes of incentivizing property owners to choose them when determining their stabilization strategy.[9] However, a study from 2016 identified that 74% of permitted projects on unaltered shorelines failed to embrace living shorelines.[10] To increase the implementation of green shoreline stabilization methods, VTWA required stronger language to effectively change landowner’s behavior. The statute was amended in 2022, requiring the Commission to “permit only living shoreline approaches to shoreline management unless the best available science shows that such approaches are not suitable.”[11] The statute even requires the integration of non-structural elements into hard-structuring projects.[12] Another shoreline resilience win for Virginia!

However, the “best available science” standard is subjective.[13] The lack of clear criteria within the statute defining “best available science” could lead to inconsistent application of the law. The burden of proof for what type of stabilization structure is most suitable due to the “best available science” belongs to the waterfront property owner, who, most of the time, does not know the difference between sustainable shoreline stabilization mechanisms and traditional hard armoring practices.[14] Frequently, property owners implement shoreline stabilization strategies uniform to their neighbors—causing a ripple effect of a quick-fix stabilization method that does more harm to the shoreline and water system in the long run.[15] The burden of proof being on the property owner could lead to VMRC and Local Wetlands Boards having waterfront property owners demanding a permit for a hardened shoreline, even if it is not the best approach. [16]

Maryland’s shoreline stabilization statute includes a list of factors a property owner must consider to waive the requirement to implement living shorelines.[17] Some of these factors include the width of the waterway, the bottom substrate, the regularity of tides, and the degree of erosion.[18] Virginia’s statute, alongside the “best available science” standard[19], should include criteria similar to Maryland’s for property owners to consider when determining the most suitable shoreline stabilization method. The incorporation of clear criteria would make the permit process more straightforward for property owners and limit diverse interpretations among stakeholders and regulatory bodies—resulting in increased implementation of sustainable shoreline stabilization methods.

[1] Jim Lang, SB776 Requires Proof for Hardened Shoreline Installation, Jim Lang Waterfront Law, (Nov. 6, 2020),

[2] VA. Code Ann. § 28.2-104.1(C)(1) (2022).

[3] Shana Jones, Note, Stabilizing the Edge: Southeastern and Mid-Atlantic Shorescapes Facing Sea Level Rise, 46 Colum. J. Envtl. L. 293, 353 (2021).

[4] Advantages and Disadvantages of Soft Shoreline Stabilization, InTeGrate (Oct. 19, 2023),

[5] Id.

[6] Id.

[7] Nat’l Oceanic & Atmospheric Admin., Natural and Structural Measures for Shoreline Stabilization 1, 7 (2015),

[8] § 28.2-1300-1315 (1972).

[9] See § 28.2-104.1(C)(1) (2022).

[10] Marcia Berman et al., Implementing Sustainable Shoreline Management in Virginia: Assessing the Need for an Enforceable Policy, 3 (2018).

[11] § 28.2-104.1(D) (2022).

[12] See Id.

[13] Id.

[14] § 2.2-4020 (2016)(“The burden of proof shall be upon the proponent or applicant.”).

[15] Jim Lang, supra note 1.; Christopher Antoine, Increasing Living Shoreline Implementation in Virginia: Legal and Policy Recommendations, 41 (2018).

[16] Jim Lang, supra note 1.

[17] MD. CODE. REGS. (E)(2) (2022).

[18] See § (2021).

[19] VA. Code Ann. § 28.2-104.1(D) (2022).

Legal Personhood for Animals: A Question for the Courts?

By Jacob Einbinder | Staff Editor

March 15, 2024

“To be a person, one has to be seen as human. Put differently, animal personhood is an oxymoron in anthropocentric legal systems.”[1] The legal status of animals as property is a death sentence for billions of animals trapped in animal agriculture and aquaculture industries around the world.[2] Based on conservative estimates, approximately 65 billion land animals are raised annually for farming, while the oceans yield between 2 and 3 trillion creatures for human consumption.[3] Under property law, humans are entitled to exercise dominion over animals, denoting the way legal systems enable exploitation of nonhumans.[4]

The concept of legal animal personhood is an alternative legal status proposed by the Nonhuman Rights Project (“NhRP”). The NhRP argues that certain animals should be granted legal rights and protections like those afforded to human beings.[5] Legal personhood is significant because it implies that certain “intelligent” animals are entitled to live life outside of captivity because of their cognitive capacity.[6] In 2018, the NhRP sued the Bronx Zoo on behalf of Happy the elephant.[7]

      In Breheny, the NhRP sought a writ of habeas corpus for Happy.[8] A writ of habeas corpus[9] has historically protected the right of humans to be free of unlawful confinement.[10] To extend the applicability of habeas corpus to nonhumans would be an unprecedented recognition of the right of certain animals to liberty and a life free of confinement. Although the Court of Appeals did not hold Happy to be a “person,” Breheny highlights the legal issues facing courts and advocates on the road to achieving legal recognition for animals.

Judge Wilson dissented from the majority’s holding that habeas corpus only belongs to “humans because they are humans.”[11] He argued that there is no precedent preventing the application of habeas corpus to an owned subject.[12] Furthermore, Wilson disagreed with the majority’s suggestion that the question of whether animals qualify for the writ of habeas corpus should be left to the legislatures.[13]  

While the majority argued that questions of animal welfare should be directed to the legislature, precedent shows that the “writ cannot be abrogated…by legislative action.”[14] Thus, it is incorrect to defer to the legislature for matters involving habeas proceedings. Wilson accused the New York Court of Appeals of erroneously limiting liberty rights to humans and inappropriately deferring to the legislature on a question meant for the courts.[15]

Courts have been quick to punt to legislatures on the question of animals’ ability to bring suits[16] However, such a novel question may only be suited for the judiciary because of the influence of industrial agriculture on legislatures.[17] The lack of external industry pressure on Courts suggest that it is imperative for animals that the judiciary take animal suffering seriously. While personhood may be a long way off for animals, the sheer magnitude of animal suffering in industrial agriculture demands an answer.[18]

[1] Maneesha Deckha, Animals as Legal Beings: Contesting Anthropocentric Legal Orders 91 (2021).

[2] Id. at 178 (2021).

[3] Id. at 4 (citing statistics from 2021).

[4] Gary Francione, Animals Property & The Law 24 (Temple University Press 1995).

[5] Nonhuman Rights Project, (last visited Oct. 26, 2023).

[6] Deckha, supra note 1 at 87.

[7] Nonhuman Rights Project, Inc. v. Breheny, 38 N.Y.3d 555, 566 (2022).

[8] In 2018, the NhRP commenced the habeas proceeding against James Breheny, Director of the Bronx Zoo, in the Supreme Court. Breheny, 38 N.Y.3d 555, 566 (2022). The Supreme Court dismissed the petition and the Appellate Division unanimously affirmed. Id. at 568. The Court of Appeals granted the NhRP leave to appeal. Id. at 569.

[9] “’Habeas corpus’ is a suit wherein probable cause therefor being shown, a writ is issued which challenges the right of one to hold another in custody or restraint.” State ex rel. Phalen v. Roberts, 858 S.E.2d 936, 941 (2021).

[10] Breheny, 38 N.Y.3d 555, 565 (2022).

[11] Id. at 582.

[12] Id. at 583.

[13] Id. at 582.

[14] People ex rel. Tweed v. Liscomb, 60 N.Y. 559, 566 (1875).

[15] Breheny, 38 N.Y.3d 555, 613 (2022) (J. Wilson, dissenting).

[16] See also Mosiman ex rel. Just. v. Vercher, 321 Or. App. 439, 456 (2022).

[17] Big Money, the Farm Bill and Family Farms vs. Industrial Agriculture, American Promise (June 18, 2019), (stating that the Farm Bill was influenced by corporate interest).

[18] See note 3.

Regulating AI (Taylor’s Version): Navigating the Challenges Posed by AI-Generated Deep Fakes and How Taylor Swift Is Inspiring AI Legislation in Congress

By Lyndall Goudemond | Staff Editor

March 11, 2024

Artificial intelligence (AI) is in its infancy—not in our Constitution, a historical analog, or rooted in tradition. AI is a relatively new field that is constantly evolving, making it difficult to define. Essentially, AI is a tool that uses algorithmic data to calculate behavior and outcomes.[1] There are many forms of AI, including deepfakes, which are synthetic media applications that use technology to swap biometric features such as faces and voices.[2] As a result, it is crucial to understand the potential risks associated with AI, as it continues to play an increasingly important role in our lives.

Deepfakes are frequently employed to deceive the public. The tampered media can be utilized for a range of purposes, including the creation of simulated recordings of individuals and the dissemination of false recordings of speeches.[3] However, a significant concern about deepfakes pertains to explicit images generated by an algorithm.[4]

12-time Grammy Award-winning musician Taylor Swift is the latest victim of deepfaked media, with explicit images and videos of her circling the internet.[5] Gaining national attention, the White House released a statement in January highlighting the alarming nature of explicit ai-generated media.[6]

Examining deepfakes, especially explicit images, is a social and legal concern. Deepfakes are a privacy issue, and the explicit photos of Taylor Swift could be likened to revenge porn, which in most states correlates to criminal sexual abuse.[7] Recent research has shown that 96 percent of deepfaked videos include nonconsensual pornography.[8] Taylor Swift is not the only individual whom explicit deepfakes have targeted. Her exposure is the most recent of the attacks. Alexandria Ocasio-Cortez and Nancy Pelosi have been targeted politically and sexually in deepfaked media.[9]

The Biden-Harris Administration has made regulating AI a priority in recent months, with President Biden working on protecting citizens from the potential harms presented by the widespread use of AI.[10]

On October 2, 2022, the White House released a Blueprint for an AI Bill of Rights.[11] This document provides a set of five principles to navigate the design and deployment of AI.[12] This executive order aims to protect the American public’s existing rights in the AI age. Although the Biden-Harris Administration has focused on research on AI, the moves made by the White House are not legally binding.

Congress has plans outside of blueprints, with a new bipartisan bill being introduced by Senators Dick Durbin, Lindsey Graham, and Josh Hawley.[13] The Disrupt Explicit Forged Images and Nonconsensual Edits Act would allow citizens to sue the creators and distributors of sexually explicit deepfake images.[14]

The bipartisan bill is not the first Act to be introduced, with the DEEPFAKES Accountability Act being introduced in 2023 by Congresswoman Yvette Clarke.[15] The Act would also provide “legal recourse” for victims of nonconsensual distribution of intimate imagery.[16]

While the United States works to enact regulations for deepfake media, other countries have enacted their own protections. Canada recently passed the Intimate Images Protection Act on January 29, 2024.[17] With the rapid growth of AI in every aspect of everyday life, the harm of deepfakes has become a global issue.

The DEEPFAKES Accountability Act and the Disrupt Explicit Forged Images and Nonconsensual Edits Act will provide civil protections for citizens, allowing victims to bring claims against those who create and distribute deepfakes. However, both Acts leave expectations for parody, common for bills that may impact First Amendment rights. Creating art is mostly protected by the First Amendment. Pornography is protected because it is labeled as a parody.[18] There is nothing theatrical about using nonconsensual intimate images of unwilling parties, whether that is Taylor Swift or an average citizen.

As AI is a novel product, the benefits and disadvantages are still being examined. There are no benefits, only disparate impacts regarding the impacts of falsified media. As AI gains widespread use, the need for regulations in the US becomes more pressing.

[1] Yongjun Xu et al., Artificial Intelligence: A Powerful Paradigm for Scientific Research, Innovation, Nov. 2021, at 1, 1.

[2] Meredith Somers, Deepfakes, Explained, MIT (Jul. 21, 2020),

[3] Id.

[4] Id.

[5] Lauren Berg, White House Calls Explicit AI Photos of Taylor Swift ‘Alarming’, Law360 (Jan. 26, 2024),; Geoff Mulvihill, What to Know About How Lawmakers Are Addressing Deepfakes Like the Ones That Victimized Taylor Swift, AP (Jan. 31, 2024),

[6] Berg, supra note 5.

[7] Id.

[8] Id.

[9] Reuters Fact Check, Video Features Deepfakes of Nancy Pelosi, Alexandria Ocasio-Cortez and Joe Biden, Reuters (Apr. 28, 2023),

[10] See Statements and Releases, White House, FACT SHEET: Biden-⁠Harris Administration Secures Voluntary Commitments from Leading Artificial Intelligence Companies to Manage the Risks Posed by AI (Jul. 21, 2023).

[11] Blueprint for an AI Bill of Rights, The White House (Oct. 2022),

[12] Id.

[13] Kat Tenbarge, Deepfake Bill Would Open Door for Victims to Sue Creators, NBC News (Jan. 30, 2024),

[14] Id.

[15] Press Release, Congresswoman Yvette D. Clarke, Clarke Leads Legislation to Regulate Deepfakes, (Sept. 21, 2023),

[16] H.R .5586, 118th Cong. (2023).

[17] Intimate Images Protection Act, RSNL 2018, c I-22 (Can.).

[18] Kristen Dold, Geoffrey R. Stone on Faked Videos and the First Amendment, Univ. Chi. L. Sch. (Apr. 17, 2018),


Prescribing Protection: Removing Barriers from State Good Samaritan Overdose Laws to Combat the Opioid Crisis

By Aly Brines | Staff Editor

March 1, 2024

When Justin Pearlman overdosed on heroin, he managed to call 911 before losing consciousness.[1] Paramedics saved his life, but when the police found his remaining heroin, Justin was sentenced to six months in prison.[2] After being released, he said, “I don’t think I would ever call 911 on myself or another person . . . it’s so horrible to go to jail.”[3] Justin battled his addiction for another decade, but was killed by an overdose in 2021.[4] This time, he did not call 911.[5]

            The United States officially declared the opioid epidemic a public health emergency in 2017,[6] but we are still not effectively addressing it. Good Samaritan Overdose Laws (GSOLs) are a promising strategy that protects people from being criminally punished for calling 911 during a drug overdose.[7] However, because there is no federal GSOL, the extent of the protection offered varies based on the state where the overdose occurred. States should amend their GSOL to remove unnecessary barriers that prevent people from calling 911 during an overdose.

            Over 100,000 people in the United States were killed by a drug-involved overdose in 2022.[8] Substance use disorders are complex and difficult to address, and criminal punishment is not an appropriate or effective solution. The most common reason that people decide not to call 911 during an overdose is the fear of legal consequences.[9] GSOLs alleviate this fear so that people feel confident that they can safely call 911. Opioid overdoses usually take between 1–3 hours from the moment of consumption to the moment of death,[10] so there is enough time to call 911, but not enough to delay.[11] GSOLs maximize this window of opportunity by prioritizing the life-saving call for medical assistance.

Critics of GSOLs often cite a desire to control crime or make drugs less accessible, which are commendable goals. However, a more commendable goal is keeping people alive regardless of their mental health needs. All current GSOLs include a “good faith” requirement to discourage any abuse of their protection,[12] so the caller must be motivated by the desire to save a life and not just to avoid punishment. Overdoses should be treated as medical emergencies, not crime scenes.

Each state[13] has a unique GSOL, but the protection offered in each state varies dramatically. Some restrict which stages of the criminal process are protected, which can confuse people without a legal background.[14] Other states limit who is protected by the GSOL.[15] If the caller is not protected, then they may not feel safe calling 911. If the patient experiencing the overdose is not protected, the caller is forced to guess whether the patient would rather risk incarceration or risk death. These dilemmas become even more complicated for people with a special legal status like terms of parole, probation, or immigration.

States also vary drastically on the types of offenses that are protected under their GSOL. Most states cover the use and/or possession of controlled substances, but people can still be punished for other crimes in connection to the overdose.[16] A more efficient approach would be to include all crimes related to the overdose so that people are not delayed by any confusion over their protection. The goal of an effective GSOL is to be so clear and inclusive that people can confidently save lives during an overdose.

Many states have unnecessary barriers that prevent their GSOL from being effective. Some require the caller to identify themselves to the police,[17] which is likely to scare off potential callers who do not fully trust the protection of the GSOL. Texas only allows a person to use GSOL protection once,[18] which forces potential callers to choose which overdose is sufficiently fatal. These kinds of limitations can render the GSOL essentially useless, as the GSOL becomes inaccessible to the people who are likely to need it most.

GSOLs are a promising solution to address the opioid crisis, but our current approach to these laws can be improved. States should prioritize saving lives and amend their GSOL to lower the barriers to accessing medical care during an overdose.

[1] John Rensten, ‘Good Samaritan’ Laws and Drug-Overdose Victims, Newsweek (July 6, 2010),

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Ongoing Emergencies and Disasters,, (last visited Feb. 22, 2024).

[7] Kayleen Egan, The Overdose Prevention Act: A Small Step When New Jersey Needs A Giant Leap, 12 Rutgers J.L. & Pub. Pol’y 1, 4 (2014) (explaining what GSOLs are and how they are intended to work).

[8] Harm Reduction, SAMHSA, (last updated Apr. 24, 2023).

[9] Jennie M. Miller, Save a Friend’s Life or Risk Your Freedom: The Dilemma Too Many People Face When Witnessing an Overdose, 34 J. Civ. Rts. & Econ. Dev. 351, 372 (2021) (describing common reasons that people decide not to call 911 while experiencing or witnessing an overdose).

[10] Opioid Overdose Basics, Nat’l Harm Reduction Coal., (last updated Sept. 1, 2020); Will Dane et al., The Solution to Opioids is Treatment, Brain Inj. Ass’n of Am., (last visited Feb. 22, 2024).

[11] Daniel Rees et al., With a Little Help from My Friends: The Effects of Naloxone Access and Good Samaritan Laws on Opioid-Related Deaths, 78 Rsch. Briefs Econ. Pol’y, 1, 7 (2017) (describing the timeline of an overdose and when medical intervention becomes necessary).

[12] See Alaska Stat. § 11.71.311; Del. Code Ann. tit. 16, § 4769; N.Y. Penal Law § 220.78 (McKinney 2021) (each requiring that the protected person acts in good faith to save a life).

[13] Excluding Kansas and Wyoming, which do not have any GSOL protections.

[14] See Idaho Code § 37-2739C (allowing the protected person to be arrested but not charged); Ala. Act No. 2015-364 (allowing arrest and charging, but not prosecution); N.J. Stat. Ann. § 2C:35-30 (allowing the protected person to be arrested, charged, and prosecuted but not convicted.

[15] See Ind. Code Ann. § 16-42-27-2 (protecting only the caller); N.C. Gen. Stat. § 90-96.2 (protecting the person experiencing the overdose and the first person to call 911); S.D. Codified Laws § 34-20A-111 (protecting only the person experiencing the overdose and no one else).

[16] Samantha Kopf, Slaying the Dragon: How the Law Can Help Rehab a Country in Crisis, 35 Pace L. Rev. 739, 752 (2014) (describing the different offenses covered by each state’s GSOL).

[17] See Okla. Stat. tit 63, § 2-413.1

[18] 2021 Tex. HB 1694.

Much to Say About Nothing: Finding Agency Authority from Statutory Silence in the Environmental Field

By Mark Dunckel | Staff Editor

February 27, 2024

Imagine you’re working in an office and a supervisor asks you to copy a report. You have expertise when it comes to this type of job and are specifically trained to perform tasks such as this. Your expertise is to the point that no one else in the entire office is capable of doing this. Even your supervisor is completely oblivious when it comes to copying. Like most people you would likely take the report, go to the copying machine, and make the photocopy. Sounds easy enough, right? Imagine next that a third party comes in and says you’re not allowed to use that machine. This individual has never used a copying machine, doesn’t have the expertise you have, and has never stepped foot in your office building until now. You are told that you can’t use the copier because your supervisor didn’t explicitly tell you to use it, or any specific method to make the copy. Or worse, someone said all copies should be done by hand thirty years ago, so you must follow that. You look to your supervisor for permission but they’re too busy handling other issues to do anything. Your supervisor trusted you to use the method you felt was best to make the copy, but now that this third party is here you are left feeling unable to do your job in the best way.

The above scenario sounds extreme, right? It certainly doesn’t sound like an efficient workplace. Now imagine that instead of making a copy, your job is to develop a management plan for herring-fishing operations in the Northeast United States. That seems a bit more complicated. This is what NOAA and the New England Fishery Management Council face before the Supreme Court, and what could become a common occurrence for agencies in the environmental field.

For the second time in American history, the Supreme Court may limit agency authority over the protection of a fish.[1] In two disputes involving a management plan in the Atlantic Herring Fishery, the Court considers whether to overrule the longstanding Chevron doctrine.[2] In a secondary question, the Court considers how to treat agency authority that is derived from statutory silence.[3] Assuming the Court upholds Chevron, the Court may take this opportunity to limit agency authority, specifically by stating silence cannot constitute a grant of authority.

Beginning in the New-Deal Era, Congress entered a new area of “public interest” legislation tackling new challenges facing the country in highly complex fields.[4] As Congress realized the issues in these fields could not be solved by legislation alone, it began to delegate more authority to agencies causing the “administrative state” to grow.[5] Arguably the most complex field of law Congress entered during the New Deal was environmental protection. In 1970, Congress created the EPA to be an agency designed to protect human health and the environment.[6]

Environmental issues have characteristics which make them more difficult for Congress to solve, increasing the reliance on agency enforcement.[7] Because of this, Congress created a system involving broad delegations of authority to agencies such as the EPA. Congress also enacts legislation allowing agencies to further their expertise and develop on-the-ground solutions to these environmental problems.[8] Arguably the most important thing Congress does to allow this is remain silent on specific issues in a statute, allowing an agency to further its expertise and find the best method to implement a regulatory scheme.

Agency authority stemming from silence formed the basis of the Court’s holding in Chevron.[9] Despite this fact, opponents of Chevron and agency-based problem solving see authority based in silence as a formula for agency aggrandizement.[10] This fails to recognize the importance of—and actual use of authority in silence—specifically in the environmental field. Congress relies on authority in silence, and a total failure to recognize authority in these cases would have detrimental effects on environmental law and agencies’ ability to solve environmental problems.

The Court can draw from various sources to develop a method to recognize agency authority in statutory silence. By considering past precedent[11] and writings by former and current justices[12], the Court can employ workable tests to recognize this authority without upsetting constitutional principles. Doing this would allow Congress to continue its use of silence in environmental legislation so agencies––such as the EPA––can further expertise and remain flexible in the environmental field. The Court should adopt a method to allow this, avoiding the detrimental impacts to the environment that would result if it invalidated the prevalent use of agency authority in silence.

[1] See Tenn. Valley Auth. v. Hill, 436 U.S. 153 (1978) (strengthening the Endangered Species Act and preventing a project by the TVA to protect the snail darter).

[2] Chevron, U.S.A., Inc. v. Nat. Res. Def. Couns., Inc., 467 U.S. 837 (1984).

[3] E.g., Loper Bright Enters., Inc. v. Raimondo, 143 S. Ct. 2429 (2023).

[4] Id.

[5] Id.; Columbian College of Arts & Sciences Regulatory Studies Center, Reg Stats, Geo. Wash. Univ., (last visited Jan. 20, 2024) (showing a chart of the growth of the Code of Federal Regulations from 1950 to 2021).

[6] EPA History, EPA, (last visited Feb. 16, 2024).

[7] Richard J. Lazarus, Restoring What’s Environmental About Environmental Law in the Supreme Court, 47 UCLA L. Rev. 703, 747 (2000).

[8] Jody Freeman & David B. Spence, Old Statutes, New Problems, 163 U. Pa. L. Rev. 1, 81 (2014).

[9] Chevron, supra note 2, at 843.

[10] See Thomas W. Merrill, Re-reading Chevron, 70 Duke L.J. 1152, 1192–93 (2021).

[11] Edwards’ Lessee v. Darby, 25 U.S. (1 Wheat.) 206 (1827); Kisor v. Wilkie, 139 S. Ct. 2400 (2019).

[12] Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363–72 (1986); Brett M. Kavanaugh, Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev 1907 (2017); Antonin Scalia, Judicial Deference to Administrative Interpretation of Law, 1989 Duke L.J. 511 (1989).

The Problem That “Will Recur”: Sunny Handicraft v. Envision This! and the Problem of Properly Classifying Foreign, Non-Corporate Business Entities

By Nicholas Glover | Staff Editor

February 23, 2024

“Counsel did not get the point.”[1] “[Classifying a business] does not get any easier when we turn to foreign business entities.”[2] “We have dodged a problem today, but it will recur.”[3]

All three quotes are responses from federal judges describing the jurisdictional mayhem caused by improperly classifying a business entity.

The mayhem this niche problem stems from is access to the federal court system. An American corporation is domiciled in two places: its state of incorporation and principal place of business.[4] Meanwhile, a non-corporate business entity—such as limited liability company—has its domicile determined by each partner or member.[5] The domicile(s) of a company helps determine if the company will be permitted into the federal courts under diversity jurisdiction.[6] Simple enough.

Now, what about trying to determine the domicile of foreign business entities? Furthermore, what about trying to determine the domicile of foreign business entities, where a carbon copy of an American corporation does not exist?[7] Even further, what about trying to determine the domicile of foreign business entities, where a carbon copy of an American corporation does not exist, and there are markedly different and competing approaches?[8] This is the unenviable task that federal court judges are left with.

This unique situation has led to a decades-long circuit split. Judges are left with two competing approaches—the “juridical entity approach”[9] stemming from interpreting People of Puerto Rico v. Russell & Co., Sucesores En C.,[10] and the “features approach.”[11] The juridical entity approach holds that if a foreign business entity is classified as a juridical person under the laws of that foreign nation, then it will be determined as such in the American federal court system.[12] As a juridical person, its single domicile under diversity jurisdiction will be applied under 28 U.S.C. § 1332(a).

Alternatively, there is the features approach. Spearheaded by Judge Frank Easterbrook and Judge Richard Posner, this approach determines the classification of a foreign, non-corporate business entity by looking at the features it has. Specifically, the Seventh Circuit’s legal luminaries look for certain traits: “a business with indefinite existence, personhood (the right to contract and litigate in its own name), limited liability for equity investors, and alienable shares, among other features.”[13] Despite how it may be organized under its foreign laws—whether it is the American equivalent of a limited liability company, general partnership, or other—if the non-corporate business entity bears the aforementioned features, then it will be treated like an American corporation, for diversity jurisdiction purposes.[14]

These two approaches greatly contrast. Worse, the lower courts have no guidance from the Supreme Court on this issue, as the Court is weary to jump into many jurisdictional issues.[15] So, with a decades-long circuit split coming to the fore as recently as May 2023,[16] it is time for action.

There is only one body that can resolve this issue: Congress. Specifically, Congress should adopt the features approach in full, either by (1) amending 28 U.S.C. § 1332(c) to explicitly incorporate the features approach for classifying foreign, non-corporate business entities; or (2) enacting a standalone piece of legislation for this issue. The former is sensible given that 28 U.S.C. § 1332(c) already discusses jurisdictional facets of American corporations.[17] The latter would be significant, as enacting a standalone piece of legislation signals the level of importance for this issue.

If adopted, the features approach may potentially see early legal challenges—primarily of statutory interpretation; however, it is likely that none will stick. Moreover, the features approach honors Supreme Court precedent and the Founding Father’s political and economic justifications for diversity and alienage jurisdiction, and it encompasses a “more holistic review”[18] overall.

Neither approach is perfect. Both approaches contain pros and cons. But Congress would be well-advised to adopt the features approach. This approach would provide the lower courts with a clear and repeatable analytical template and end this ongoing—and unnecessary—circuit split.

[1] Lear Corp. v. Johnson Elec. Holdings Ltd., 353 F.3d 580, 582 (7th Cir. 2003).

[2] Hawkins v. i-TV Digitalis Tavkozlesi zrt., 935 F.3d 211, 223 (4th Cir. 2019).

[3] Sunny Handicraft (H.K.), Ltd. v. Envision This! LLC, 66 F.4th 1094, 1097 (7th Cir. 2023) (emphasis added).

[4] Hertz Corp. v. Friend, 559 U.S. 77, 97 (2010).

[5] Carden v. Arkoma Assocs., 494 U.S. 185, 195 (1990).

[6] 28 U.S.C. § 1332.

[7] White Pearl Inversiones S.A. (Uruguay) v. Cemusa, Inc., 647 F.3d 684, 686 (7th Cir. 2011) (“Yet, not even the United Kingdom has a business form that is exactly equal to that of a corporation.”).

[8] See People of Puerto Rico v. Russell & Co., Sucesores, S. En C., 288 U.S. 476 (1933); see also Stiftung v. Plains Mktg., 603 F.3d 295, 299 (5th Cir. 2010) (applying the “juridical entity approach”); cf. Fellowes, Inc. v. Changzhou Xinrui Fellowes Off. Equip. Co. Ltd., 759 F.3d 787, 788 (7th Cir. 2014) (applying the “features approach”).

[9] See Stiftung v. Plains Mktg., 603 F.3d 295, 299 (5th Cir. 2010) (applying the juridical entity approach).

[10] 288 U.S. 476 (1933).

[11] See Fellowes, 759 F.3d 787, 788 (7th Cir. 2014) (applying the features approach).

[12] See Cohn v. Rosenfeld, 733 F.2d 625, 629 (9th Cir. 1984) (applying the juridical entity approach).

[13] Fellowes, 759 F.3d 787, 788 (7th Cir. 2014).

[14] See 28 U.S.C. § 1332(c).

[15] Carden v. Arkoma Assocs., 494 U.S. 185, 197 (1990) (“We have long since decided that, having established special treatment for corporations, we will leave the rest to Congress; we adhere to that decision.”).

[16] See generally Sunny Handicraft (H.K.), Ltd. v. Envision This! LLC, 66 F.4th 1094 (7th Cir. 2023).

[17] See 28 U.S.C. § 1332(c).

[18] Elisabeth C. Butler, Diversity Jurisdiction and Juridical Persons: Determining the Citizenship of Foreign-Country Business Entities, 97 Tex. L. Rev. 193, 208 (2018).

Halting Unjust Displacement: The Prospects of a Case for the Maasai in the African Court on Human and Peoples’ Rights

By Julia Bloechl | Staff Editor

February 20, 2024

            In October 2022, the East African Court of Justice ruled in favor of the Tanzanian government in a case brought by Tanzanian Maasai villages.[1] The Maasai, an East African indigenous people, brought the case after several instances in which the Tanzanian government orchestrated forced evictions of Maasai people from their ancestral lands.[2] The government undertook these evictions under the stated purpose of conservation.[3] We can, however, call this purported purpose into question on two key bases. First, the Tanzanian government has since given this land to the United Arab Emirates’ Otterlo Business Corporation for the development of a private airport and game reserve for trophy hunting.[4] Second, the Maasai have proven themselves a people uniquely capable of furthering conservation efforts.[5]

            The East African Court of Justice’s finding for the Tanzanian government came after a five-year legal battle. The Court claimed that the Maasai people did not provide sufficient evidence that the forced evictions were violent or that they were carried out on legally registered land.[6] The Court, in a controversial move, discounted the key testimony of a geospatial expert—who demonstrated that instances of arson did occur on Maasai territory—on procedural grounds.[7] In the aftermath of this painful decision, the Maasai people must consider what alternative avenues they can access to obtain justice against the Tanzanian government. The most evident and perhaps most productive next step would be to pursue a case in the African Court on Human and Peoples’ Rights.

            The Organization of African Unity, now the African Union, established the African Court on Human and Peoples’ Rights by way of a 1998 protocol.[8] The Court is a body under the African Commission on Human and Peoples’ Rights which is comprised of 55 member states.[9] As a court devoted to the protection of human rights across the continent, it is an appropriate venue for the Maasai’s case. Its suitability is made even more clear by its recent ruling in the case of the Ogiek people against the Kenyan government in 2017.[10]

            In 2017, the African Court on Human and Peoples’ Rights ruled in favor of the Ogiek people finding that the Kenyan government could not hold them accountable for the destruction of the Mau Forest and, more importantly, found that the Ogiek were entitled to recognition as an indigenous people with fundamental rights.[11] Many claims of violations of the African Charter on Human and Peoples’ Rights parallel claims that the Maasai could bring against the Tanzanian government.

            Informed by the African Court on Human Rights decision on the Ogiek, the Maasai should bring their claims to the African Commission on Human Rights, which may then bring the case to its affiliated court. The Maasai must operate through the Commission because the Tanzanian government does not currently observe Article 34(6) of the Protocol to the African Charter on the Establishment of the African Court on Human and Peoples’ Rights. That Article allows individuals and NGOs to bring cases to the court.[12] Nonetheless, the Maasai have the right to bring a claim to the Commission which may then bring the case to its affiliated court.

The Maasai should assert that the Tanzanian government violated Articles 1, 2, 14, 17(3), 21, and 23 of the African Charter on Human and Peoples’ Rights.[13] These provisions guarantee several important rights, some of which are freedom from discrimination, the right to property, and the right to peace and security.[14] These are rights which the court affirmed for the Ogiek people and may therefore be inclined to protect for the Maasai.

            In January 2023, representatives of the African Commission on Human and Peoples’ Rights visited Tanzania and commented on the plight of the Maasai.[15] They recognized that the Maasai were suffering and encouraged the Tanzanian government to respond appropriately.[16] Thus, the Commission has already indicated that it is aware of and sympathetic to the suffering of the Maasai. Informed by this recognition and understanding that the government has not taken remedial measures, the Maasai should now utilize the Commission to obtain justice.

            In taking such action, the Maasai people may not only halt the evictions and firmly establish their rights to their ancestral land but may also signal to the Tanzanian government that they do have a right to participate in national decision-making and government action. As an important indigenous people, the Maasai ought to have significant representation in the Tanzanian government, perhaps by way of seats in the national assembly. In an action against the government, the Tanzanian Maasai people ought not stop at halting the ongoing evictions but should also take steps to ensure that these atrocities cannot recur and that their rights are adequately protected. 

[1] Press Release, Oakland Inst., Justice Denied: East African Court of Justice Grants Tanzanian Government Impunity to Trample Human Rights of the Maasai (Sept. 30, 2022),

[2] Tanzania Prevents MEPs From Investigating Maasai Abuses, Survival Int’l (Sept. 6, 2023),

[3] Beyond Just Conservation: A History of Maasai Dispossession, Minority Rts. Grp. Int’l (Feb. 23, 2023),

[4] Id.

[5] Ben Reicher, Indigenous Peoples Must Be at the Center of Global Conservation Efforts, Oakland Inst. (July 21, 2021),

[6] [6] Laurel Sutherland, Maasai Villages Lose Important Court Case as Wildlife Game Reserve Trudges On, Mongabay (Oct. 1, 2022),

[7] Tanzanian Maasai Lawyers to Launch Appeal in East African Land Grab Case, rfi (Apr. 10, 2022),

[8] See generally Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, Member States of the Organization of African Unity, June 10, 1998 [hereinafter Protocol].

[9] About the African Union, African Union, (last visited Feb. 12, 2024).

[10] Adebayo Majekolagbe & Olabisi D. Akinkugbe, The African Court of Human and Peoples’ Rights Decision in the Ogiek Case: An Appraisal, in Extractive Industries and Human Rights in an Era of Global Justice: New Ways of Resolving and Preventing Conflicts 163–201, 165 (Amissi M. Manirabona & Yenny Vega Cardenas, eds., 2019).

[11] Lucy Claridge & Daniel Kobei, Protected Areas, Indigenous Rights and Land Restitution: The Ogiek Judgment of the African Court of Human and Peoples’ Rights and Community Land Protection in Kenya, 57 Oryx 313, 313 (May 2023).

[12] Protocol, supra note 8, art. 5.

[13] See Organization of African Unity, African Charter on Human and Peoples Rights, June 27, 1981.

[14] Id.

[15] Press Statement at the Conclusion of the Promotion Mission of the African Commission on Human and Peoples’ Rights to the United Republic of Tanzania, 23–28 January 2023 (Feb. 24, 2023).

[16] Id.

Executive Chutes and Ladders: Gender Based Violence Asylees and Equal Protection Violations at the Northern Border

By Faith Orr | Staff Editor

February 16, 2024

            After enduring 15 years of repeated physical and sexual violence at the hands of her now ex-husband, Ms. A-B- moved with her children to a new town in El Salvador. Her ex found her. He raped her. She filed for divorce. But this was not enough. Death threats came next. “Be very careful, you don’t know where the bullets will land.”[1] These were the words of her brother-in-law warning her against fleeing.[2] Fearing for her life and that of her children, Ms. A-B- had no choice but to leave her home country and seek asylum in the United States.

            Ms. A-B-’s asylum story is only a drop in the bucket of the gender based violence (GBV) occurring globally. GBV knows no jurisdictional limits. For many, seeking asylum is the only way out.

            Yet, last spring, the U.S. and Canada changed the rules of the asylum game at the Northern border—severely restricting asylum access in Canada and violating GBV claimants’ equal protection rights under Canadian law. How did we get here? Let’s take a step back.

            In 2002, the Martin-Bush administrations created the Safe Third Country Agreement (STCA) to address the flow of migrants at the Northern border.[3] The STCA is a bilateral treaty mandating that asylees seek asylum in the first “safe” country in which they land. If you first touch foot in the United States, you cannot continue to travel up to Canada to start a new asylum claim there, and vice-versa. Doing so will trigger removal back down to the United States. The 2002 STCA had an important carve-out: those entering Canada from the United States via an unofficial port of entry would not be subject to removal, allowing them to continue their claim in Canada.[4]

            In March 2023, the Trudeau-Biden administrations expanded the STCA to close the irregular entry carve out, spanning its jurisdiction across the entire Northern border.[5] Practically speaking, any asylee who has first arrived in the United States is no longer eligible to make a claim in Canada, regardless of how they physically entered Canada. This jurisdictional expansion poses a unique situation for GBV claimants at the Northern border.

            GBV is the main reason women seek asylum in Canada.[6] The majority of these claimants opt for irregular points of entry into the country. This preference stems from the reduced risk of detection by their abusers.[7] A standard asylum application process demands substantial documentation, financial resources, and time—luxuries often beyond the reach of many GBV survivors who need immediate protection.[8]

            By expanding the STCA, Canada has violated its own Constitution. The equal protection clause of the Canadian Charter of Rights and Freedoms states that every person on Canadian soil is to be given “equal benefit” of the law.[9] In particular, the Charter provides explicit protection on the basis of sex. GBV falls well within this preview. The legal test for a Canadian equal protection violation is whether the law creates a distinction based on a protected ground (“sex” for our purposes) and if that distinction disadvantages that protected ground by perpetuating a stenotype.[10] The expansion of the STCA does just that. GBV claimants are being denied equal access to have their claim heard in Canada because the United States has subpar adjudication standards for these claims.

            Remember Ms. A-B-? Her claim took six years to process. Through the years, her Matter has gone through so many twists, turns, reverses, remands, and vacates, and yet the United States still has no solid guidelines on adjudicating GBV claims.[11] Without these clear standards, GBV claims sit in fragility on the whim of the Attorney General.

            In contrast, Canada has a detailed and comprehensive standard for GBV adjudication. In 1993, Canada was the first country to recognize the difficulties of adjudicating GBV claims. So it created the Chairperson’s Guide.[12] This guide compiles extensive sociological, psychological, medical, and legal resources to help adjudicators make a fair and equitable decision on GBV claims which avoids stereotyping and retraumatization.[13] The Guide is comprehensively updated every few years.[14] In many ways, Canada’s GBV processing sets the gold standard.

            To remedy this equal protection violation, Canada and the United States must again amend the STCA back to its 2002 version. This will provide more balanced and humanitarian GVB claims without violating basic human rights.


[1] Matter of A-B-, 28 I & N. Dec. 307 (A.G. 2021) (Attorney General Garland Vacating Matter of A-B-).

[2] Id.

[3] Safe Third Country Agreement, Can.-U.S., Dec. 5, 2004, 69 FR 10627.

[4] Id.

[5] Implementation of the 2022 Additional Protocol to the 2002 U.S.-Canada Agreement for Cooperation

in the Examination of Refugee Status Claims from Nationals of Third Countries, Mar. 25, 2023, 88 FR 18227.

[6] Irregular Border Crosser Statistics, Immigr. and Refugee Bd. of Can., (last updated Nov 27, 2023).

[7] Salma Zahid, Asylum-Seekers at Canada’s Border: Report of the Standing Committee on Citizenship and Immigration 18 (2023) (44th Parliament, 1st Session).

[8] Id. at 25.

[9] Canadian Charter of Rights and Freedoms S. 1 c. 1.

[10] Id. at S. 15 c. 1.

[11] A-R-C-G-, 26 I. & N. Dec. 388, 391 (B.I.A. 2014), overruled by A-B- (A-B- I), 27 I. & N. Dec. 316 (A.G. 2018) vacated, 28 I. & N. Dec. 307 (A.G. 2021).

[12] Canadian Immigration and Refugee Board, Women Refugee Claimants Fearing Gender-Related Persecution (Guidelines issued by the Chairperson of the Board in accordance with subsection 65(3) of the Immigration Act) (Mar. 9, 1993).

[13] Id.

[14] Id.

Redefining Accountability: The Impact of the McCain-Feinstein Amendment on Enhanced Interrogation Techniques and Qualified Immunity

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By Coleman Thomas | Editor

December 21, 2023

As a result of 9/11, the United States has made countering terrorism a top priority in the national security field. On September 17th, 2001, President George W. Bush granted the CIA the power to “covertly capture and detain individuals” with connections to terrorist activities or groups.[1] During these detentions, interrogators may employ enhanced interrogation techniques (EITs), such as waterboarding, against detainees to extract information because they believe that fake drowning is a helpful motivator for these detainees to divulge information.[2]  

In cases involving a United States government official employing EITs against a detainee, the courts have been unable to hold government officials liable for torture because of the doctrine of qualified immunity.[3] Qualified immunity allows a government official to escape liability if the law was not “clearly established” at the time of the act, or a reasonable government official would not have known that their actions violated a constitutional or statutory right.[4] The “clearly established” part of this qualified immunity test is known as the liability prong. In contrast, the second part of this test is known as the legality prong.[5]

Traditionally, the courts have not needed to perform a complete qualified immunity analysis because the courts have relied on the liability prong of qualified immunity.[6] The courts have consistently and wrongfully determined that the EITs employed by government officials were not “clearly established” to violate a detainee’s constitutional or statutory rights. Then, the court’s analysis stops there and acquits the government official of any charge.[7]

However, due to the passage of the McCain-Feinstein Amendment to the Detainee Treatment Act of 2005 (DTA), the court’s analysis of qualified immunity needs to change and consider both prongs of qualified immunity.[8] The McCain-Feinstein Amendment forces all government officials to adhere to the Army Field Manual (FM 34-52) when employing EITs against detainees.[9] The McCain-Feinstein Amendment’s purpose and intent were to fulfill the liability prong of qualified immunity by making it clear that the “United States should not engage in torture again” by restricting EITs to those listed in FM 34-52.[10] The McCain-Feinstein Amendment “clearly establishes” that any EITs not expressly mentioned in FM 34-52 violate a detainee’s constitutional or statutory rights, especially when the detainee is a United States citizen.[11]

Now that the liability prong of qualified immunity is fulfilled, the courts are forced to address the liability prong of qualified immunity, potentially holding government officials liable for torture in the future. This new, complete qualified immunity analysis will lead to many future implications. One future implication is that this analysis must be applied to any future cases concerning detained United States citizens and EITs. A second future implication of this complete qualified immunity analysis is the possibility of detainees raising other tort claims not listed in FM 34-52, specifically the tort of intentional infliction of emotional distress.[12] Lastly, the court must carve out an exception to this complete qualified immunity analysis in the event that the United States is faced with an imminent attack threatening the lives of thousands of Americans and techniques listed in FM 34-52 are not producing information.


[1] S. Select Comm. on Intel., Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, S. Rep. No. 113-228, at xviii (2014).

[2] Office of the Inspector General, Special Review: Counterterrorism Detention and Interrogation Activities (September 2001-October 2003), at 15 (Report No. 2003-7123-IG) (2004). 

[3] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[4] Id.

[5] Id.

[6] Padilla v. Yoo, 678 F.3d 748, 750 (9th Cir. 2012).

[7] Id.

[8] Ctr. for Victims of Torture, McCain-Feinstein Anti-Torture Amendment: Strengthens U.S. Ban on Torture (2015),

[9] Id.

[10] Id.

[11] Id.

[12] See Dep’t of the Army, FM 34-52 Intelligence Interrogation A-1–A-2 (1992),

Climate Change Litigation: A Form of Protest?

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By Maribel Moses | Articles Editor

December 20, 2023

On June 23, 1988, the director of NASA’s Institute for Space Studies stated, “Global warming has reached a level such that we can ascribe with a high degree of confidence a cause-and-effect relationship between the greenhouse effect and observed warming . . . .[T]he greenhouse effect has been detected, and it is changing our climate now.”[1] In the early 1990s, climate scientists established 2° Celsius (C) as the maximum level of warming that could occur without “pushing the whole climate system outside the range we’ve adapted to.”[2] Despite warnings by scientists that global warming of more than 1.5°C would “push some Earth systems past dangerous and irreversible tipping points,” the current U.N. report released just before COP27 indicates the world is on a path to heat between 2.1 and 2.9°C.[3] Once a tipping point is reached, the rate and severity of natural disasters will not gradually get worse along the same trajectory. They will immediately and drastically become much, much worse.[4] While scientists have sounded the alarms for over 30 years, the United States Congress sat idly by—cementing a future of self-destruction.[5] The world’s leading climate scientists have warned that we have less than a decade to curtail global emissions before global warming reaches catastrophic levels.[6]

While the 1970s experienced a proliferation of progressive environmental legislation, the Clean Air Act amendments of 1990 marks the begging of a 32-year failure by the United States to substantively address the growing threat of climate change. In light of congressional inaction, private citizens, special interest groups, non-profit organizations, stakeholders, and government actors alike have orchestrated lawsuits seeking solutions to climate change.[7] According to James Hansen, a prolific climate scientist with NASA, compensatory litigation is the best way to hold carbon majors accountable “[u]ntil governments make them do so by implementing carbon fees or taxes . . . .”[8] Similarly, the economist and director of the Earth Institute at Columbia University and UN special adviser, Jeffrey Sachs, “urges citizens to pursue major polluters and negligent governments for liability and damages and ‘flood the courts’ with legal cases demanding the right to a safe and clean environment.”[9]

Climate litigants have filed suits taking many different forms. There have been cases challenging agency decisions,[10] cases seeking damages from carbon majors using federal common-law claims,[11] cases seeking injunctive relief or recognition of constitutional rights,[12] and cases seeking damages from fossil-fuel companies using state-tort law.[13] Aside from Massachusetts v. EPA—by all accounts, a climate victory—few climate-change litigants have seen success (or have even had their claims heard on the merits). In fact, courts across the United States, including the Supreme Court, have all about put the kibosh on each of the aforementioned climate-change claims—except claims using state-tort law.

Attorneys general across the United States are bringing suits against fossil-fuel companies using state-tort law, seeking compensation from climate change damages. The problem with these cases right now is the lack of consensus regarding jurisdiction. While states believe their claim belongs in state court because each state experiences the impacts of climate change differently, industry believes the state court system is ill-equipped to adjudicate climate change, which is a global affliction. The Supreme Court granted a writ of certiorari for a state-law case against 21 fossil-fuel companies, but did not settle the matter of jurisdiction. State-law-climate-change cases are the closest that litigants have come to pinning liability of climate change on the industry responsible for causing it. However, it is unlikely these cases will yield success until (1) jurisdiction is figured out; and (2) causation can be linked to the fossil-fuel industry. Until then we are at a stale mate.

The problem here is that the deadline to prevent catastrophic impacts from climate change is slipping through our fingers, and the courts are still scratching their heads sorting out jurisdictional issues. The stall in deciding this very narrow jurisdictional issue captures the very problem with utilizing litigation as a solution to climate change: we are running out of time. Either way, the courts will eventually decide jurisdiction once and for all. If federal, the claims will be displaced by the Clean Air Act and dismissed. If they decide the claims should be in state court, then state courts will determine the justiciability of the claims—and more likely than not—will hold that climate change embodies a political question and is thus, not justiciable.[14] If, however, science improves enough for courts to establish causation, it is possible that fossil-fuel companies will reach individual settlements with states to cover the cost of damages.

In states where this does not occur, establishing causation will allow a new wave of litigation: insurance subrogation claims. Eventually, climate change will bankrupt insurance companies, who, in 2018, paid over $90 billion worldwide to policyholders impacted by increased natural disasters[15]. Either that, or insurance companies will refuse to cover damages associated with climate change. In either case, the cost of climate change will fall on insurers or insureds—and not those at fault. Eventually, insurance companies may pursue litigation against fossil-fuel companies with the same zeal that state-and local governments and private citizens pursue litigation today.

The bottom line, though, is climate change is going to be expensive and its cost should not fall on those least responsible. Whether the courts present inaction is the result of principled judicial procedure or a myopic interest in maintaining the status quo, we are less than a decade away from calamitous disruption.  Until then, let’s flood the courts. Until the courts buck up and respond to an extraordinary situation with extraordinary measures, climate change litigation will, and should, endure as a form of desperate and defiant protest.


[1] Robert Brulle, 30 Years Ago Global Warming Became Front-Page-News – and both Republicans and Democrats Took it Seriously, Conversation (June 19, 2018),

[2] Ezra Klein, 7 Reasons America Will Fail on Climate Change, Vox (June 5, 2014),

[3] Bob Berwyn, Is COP27 the End of Hopes for Limiting Global Warming to 1.5 Degrees Celcius?, Inside Climate News, (Nov. 18, 2022),

[4] See Renee Cho, How Close Are We to Climate Tipping Points?, Columbia Climate Sch.: State of the Planet (Nov. 11, 2021), A tipping point is a point that, when crossed, will trigger changes to earth’s climate system, which will cascade into a perpetuating cycle of irreversible and drastic effects. Id.

[5] In fact, in his book They Knew, James Gustave Speth articulates how the U.S. Federal Government not only knew about the risks of climate change and what was causing it, but actively endorsed and promulgated policies that promoted increasing the consumption of fossil-fuels. James Gustave Speth, They Knew: The U.S. Federal Government’s Fifty-Year Role in Causing the Climate Crisis, 151 (2021); But see Inflation Reduction Act of 2022, Pub. L. No. 117–169, 136 Stat. 2028.

[6] See Jonathan Watts, We have 12 years to limit climate change catastrophe, warns UN, Guardian (Oct. 8, 2018),

[7] Grace Nosek, Climate Change Litigation and Narrative: How to Use Litigation to Tell Compelling Climate Stories, 42 Wm. & Mary Env’t L. & Pol’y Rev. 733, 736 (2018).

[8] Jonathan Watts, ‘We Should be on the Offensive’ – James Hansen Calls for Wave of Climate Lawsuits, Guardian (Nov. 17, 2022),

[9] Geetanjali Ganguly et al., If at First you Don’t Succeed: Suing Corporations for Climate Change, 38 Oxford J. of Legal Stud. 841, 842 (2018).

[10] Massachusetts v. EPA, 549 U.S. 497, 497 (2007).

[11] See e.g., Native Vill. Of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 858 (9th Cir. 2012).

[12] Juliana v. United States, 947 F.3d 1159, 1170 (9th Cir. 2020).

[13] See e.g., Boulder County et al. v. Suncor and Exxon, 25 F.4th 1238, 1246 (10th Cir. 2022).

[14] See Constitutional Issues – Separation of Powers, NATIONAL ARCHIVES (last updated Oct. 10, 2016).

[15] Kaitlin Sullivan, Could Insurance Lawsuits Against Big Oil be the Next Wave in Climate Liability?, Climate Docket (July 18, 2019),


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