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), https://www.newsweek.com/good-samaritan-laws-and-drug-overdose-victims-74625.
[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).
[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., https://harmreduction.org/issues/overdose-prevention/overview/overdose-basics/what-is-an-overdose/ (last updated Sept. 1, 2020); Will Dane et al., The Solution to Opioids is Treatment, Brain Inj. Ass’n of Am., https://www.biausa.org/public-affairs/media/the-solution-to-opioids-is-treatment (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).
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).
[5]Id.; Columbian College of Arts & Sciences Regulatory Studies Center, Reg Stats, Geo. Wash. Univ., https://regulatorystudies.columbian.gwu.edu/reg-stats (last visited Jan. 20, 2024) (showing a chart of the growth of the Code of Federal Regulations from 1950 to 2021).
[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).
“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).
[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).
[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).
[18] Elisabeth C. Butler, Diversity Jurisdiction and Juridical Persons: Determining the Citizenship of Foreign-Country Business Entities, 97 Tex. L. Rev. 193, 208 (2018).
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), https://www.oaklandinstitute.org/east-african-court-justice-tanzanian-maasai-trample-human-rights.
[3]Beyond Just Conservation: A History of Maasai Dispossession, Minority Rts. Grp. Int’l (Feb. 23, 2023), https://minorityrights.org/2023/02/23/beyond-just-conservation-a-history-of-maasai-dispossession/.
[5] Ben Reicher, Indigenous Peoples Must Be at the Center of Global Conservation Efforts, Oakland Inst. (July 21, 2021), https://www.oaklandinstitute.org/blog/maasai-tanzania-nca-indigenous-global-conservation.
[6] [6] Laurel Sutherland, Maasai Villages Lose Important Court Case as Wildlife Game Reserve Trudges On, Mongabay (Oct. 1, 2022), https://news.mongabay.com/2022/10/maasai-villages-lose-court-case-on-evictions-to-create-wildlife-game-reserve/.
[7]Tanzanian Maasai Lawyers to Launch Appeal in East African Land Grab Case, rfi (Apr. 10, 2022), https://www.rfi.fr/en/africa/20221004-wed-tanzanian-maasai-lawyers-to-launch-appeal-in-east-african-land-grab-court-case.
[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].
[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).
[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).
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-).
[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., https://www.irb-cisr.gc.ca/en/statistics/Pages/Irregular-border-crosser-statistics.aspx (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).
[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).
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).
[8] Ctr. for Victims of Torture, McCain-Feinstein Anti-Torture Amendment: Strengthens U.S. Ban on Torture (2015), https://www.cvt.org/sites/default/files/attachments/u11/downloads/McCain-Feinstein%20Amendment%20Factsheet_November%202015.pdf.
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), https://theconversation.com/30-years-ago-global-warming-became-front-page-news-and-both-republicans-and-democrats-took-it-seriously-97658.
[2] Ezra Klein, 7 Reasons America Will Fail on Climate Change, Vox (June 5, 2014), https://www.vox.com/2014/6/5/5779040/7-reasons-America-fail-global-warming.
[3] Bob Berwyn, Is COP27 the End of Hopes for Limiting Global Warming to 1.5 Degrees Celcius?, Inside Climate News, (Nov. 18, 2022), https://insideclimatenews.org/news/18112022/is-cop27-the-end-of-hopes-for-limiting-global-warming-to-1-5-degrees-celsius/.
[4]See Renee Cho, How Close Are We to Climate Tipping Points?, Columbia Climate Sch.: State of the Planet (Nov. 11, 2021), https://news.climate.columbia.edu/2021/11/11/how-close-are-we-to-climate-tipping-points/. 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), https://www.theguardian.com/environment/2018/oct/08/global-warming-must-not-exceed-15c-warns-landmark-un-report.
[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), https://www.theguardian.com/environment/2017/nov/17/we-should-be-on-the-offensive-james-hansen-calls-for-wave-of-climate-lawsuits.
[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]SeeConstitutional Issues – Separation of Powers, NATIONAL ARCHIVES https://www.archives.gov/education/lessons/separation-powers (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), https://www.climatedocket.com/2019/07/18/insurance-lawsuits-climate-liability/.
They tryin to blame this rap shit for all of our ills
Like I can stick you up with a mic
Like I can rape you with a verse or use a verb as a knife
Like before Kool Herc, everything was alright
Like y’all wasn’t calling Black women hoes befo’ “Rapper’s Delight”[1]
In the trend of allowing rap and hip-hop lyrics to be used as evidence in criminal proceedings, Black expression is now subject to unfair participation in a system that has historically ignored its people and its protest.[2] Perceiving violence or criminal conduct to be exclusively linked to the genres of rap and hip-hop[3] perpetuates America’s thematic history of injustice and misinterpretation of Black life, music, and culture. Accusing rap of causing violence “attempt[s] to erase from the consciousness of [Americans] the history of oppression that [gave] birth to hip-hop culture.”[4] America’s negative perception, yet mass commodification, of rap and hip-hop music is indicative of America’s commitment to engage with Blackness at its convenience.
Rap music is a powerful force for identity and solidarity.[5] Rap, in essence, is a transformative art form that provides a social commentary, narrowed in the lens of cultural understanding.[6] Through its lyricism, rap music confronts hyper policing in Black communities, mass incarceration, and other problems faced by Black and brown communities head on.[7] Literary tools[8] creatively conceal the explicit nature of rap artists’ confrontations, causing Black expressionism to be misinterpreted and misunderstood. Critics of rap music fail to visualize the emotion, talent, and intellect rap artists embed within their songs, due to the language barrier between Black individualism and the criminal justice system.[9] Most fail to acknowledge and peel back the layers of rap music, mirroring the failure of slave overseers to peel back the meanings of plantation slave songs.[10]
The cultural colloquialisms, AAVE (African American Vernacular English), and poetic rhythms demonstrate the need for rap and hip-hop music’s consideration as a form of literary art, and not criminal evidence. As an art form, rap music deserves the utmost protection within the criminal justice system. Criminalizing song artists for the content of their lyrics promotes prejudiced decision making in the justice system because using lyrics as evidence targets and disproportionately impacts Black artists.[11] Prosecutors attempt to use rap lyrics against defendants in two ways. First, prosecutors are conscious of a juries’ implicit bias against rap music and its artists,[12] hoping that they’ll conflate a defendant’s expression with what is depicted in the song.[13] Second, prosecutors may introduce rap videos into evidence in an attempt to show the “existence of a criminal enterprise, association with other members, familiarity with firearms, and a motive to commit certain crimes.”[14] Through justified association between rap music and violent crimes, it creates a horrible and restrictive suggestion that the genre, and its artists, glorify or condone violent and other stereotypes contemporaneously mentioned with Black art and its people.
Labeling rap lyrics as criminal also disproportionately impacts the rap music genre.[15] This label will have a chilling effect on Black speech if rap lyrics continue to be hyper-criminalized by prosecution.[16] Rap artists will focus more on evading criminal prosecution based on their lyrics, and less on artistic excellence. The hip-hop community is simultaneously under attack and under surveillance.[17] Historically, and now, individual rap artists and rap groups have been surveilled—via eavesdropping, tracking, and online monitoring.[18] Now, the unwelcome intrusion into rap and hip-hop culture has transformed into criminalizing an artist’s words and not their actions.
In the context of rap lyrics in criminal proceedings, the Black existence does not survive prosecutorial discretion. Prosecutors are able to prove elements of a crime by circumstantial evidence. Instead, the Black existence is contextual and layered—like the perfect verse over a tight beat.[19] All rap music needs is for the world to finally give it a fighting chance.[20]
[1]Sirens – Little Brother, Genius, https://genius.com/Little-brother-sirens-lyrics (last visited Mar. 18, 2022); See generally Christina Reyna, Mark Brandt, & G. Tendayi Viki, Blame It on Hip-Hop: Anti-Rap Attitudes as a Proxy for Prejudice, 12(3), Gʀᴘ. Pʀᴏᴄᴇssᴇs & Iɴᴛᴇʀɢʀᴏᴜᴘ Rᴇʟᴀᴛɪᴏɴs 361 (2009) (discussing how negative stereotypes of rap music influence attitudes of Blackness and Black people.)
[3] Vidhaath Sripathi, Bars Behind Bars: Rap Lyrics, Character Evidence, and State v. Skinner, 24 J. Gᴇɴᴅᴇʀ, Rᴀᴄᴇ, & Jᴜsᴛ. 207, 208 (2021).
[4] Becky Blanchard, The Social Significance of Rap & Hip-Hop Culture, Edge (July 26, 1999), https://web.stanford.edu/class/e297c/poverty_prejudice/mediarace/socialsignificance.htm.
[5] Joseph Paul Eiswerth, Rap Music As Protest: A Rhetorical Analysis of Public Enemy’s Lyrics, UNLV Retrospective Theses & Dissertations. https://digitalscholarship.unlv.edu/rtds/583/.
[7] Donald F. Tibbs & Shelly Chauncey, From Slavery to Hip-Hop: Punishing Black Speech and What’s “Unconstitutional” About Prosecuting Young Black Men Through Art, 52 Wash. Univ. j.l. & Pol’y. 33, 51 (2016).
[8]See, e.g., literary tools such as metaphors, rhyme and rhythm, similes, attention to language, imagery, and character personas. Cynthia Lee, Rap Lyrics as Literature, UCLA Newsroom: MAGAZINE, Feb. 15, 2022, https://newsroom.ucla.edu/magazine/lectures-lyrics-hip-hop-rap-poetry.
[9] Donald F. Tibbs & Shelly Chauncey, From Slavery to Hip-Hop: Punishing Black Speech and What’s “Unconstitutional” About Prosecuting Young Black Men Through Art, 52 Wash. Univ. j. l. & Pol’y. 33, 51 (2016).
[11] Erin Lutes, James Purdon, Henry F. Fradella, When Music Takes The Stand: A Content Analysis of How Courts Use and Misuse Rap Lyrics in Criminal Cases, 46 Am. J. Crim. L. 77, 87 (2019).
[13] Erik Nielson, Prosecutors would rather read rap as a threat than as art, Wash. Post, Dec. 5, 2014, https://www.washingtonpost.com/opinions/prosecutors-would-rather-read-rap-as-a-threat-than-as-art/2014/12/05/80e77fc8-7b3e-11e4-b821-503cc7efed9e_story.html.
[14] David L. Hudson, Jr., Rap Music and the First Amendment, The First Amendment Encyclopedia, Middle Tenn. State Univ. (2018).
[15] Jason E. Powell, R.A.P.: Rule Against Perps (Who Write Rhymes), 41 Rutgers L.J 479, 516 (2021).
[17] Andrea L. Dennis, The Music of Mass Incarceration, ABA (Nov.–Dec. 2020), https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2020-21/november-december/music-mass-incarceration/.
How would you feel if your genetic information was released to the world without your consent? What if you were forced to undergo unnecessary surgery? What if you were subject to hateful, racist, and transphobic remarks every time you went to work?
These are all things that happened to Caster Semenya and other athletes under World Athletics’ hyperandrogenism policy. World Athletics’ hyperandrogenism policy sets an arbitrary two-and-a-half nanomole per liter requirement for natural testosterone present in anyone running in any female event of any distance.[1] But don’t worry, World Athletics says, this does not invade your right to privacy, autonomy, and prohibition against torture. Why? Because there are ways you can still compete—as long as you don’t mind being forced to take hormone medication or undergo irreversible surgery to reduce your natural testosterone levels.
Caster Semenya, a South African 800-meter runner, has fought World Athletics since she was first banned in 2009, after being forced to take a sex test because she looked “suspicious.”[2] She has challenged the regulation all the way to the European Court of Human Rights, arguing that Switzerland (where World Athletics is located) violated her rights. Switzerland is alleged to failed to fulfil its obligations under the European Convention on Human Rights. Specifically, Switzerland is accused of violating its duty to prevent torture and inhuman or degrading treatment; to protect athletes’ rights to privacy and private life; and to prohibit discrimination against her as a queer athlete of color from the Global South.[3] The European Court of Human Rights recently ruled in July of 2023 that Switzerland violated her rights.[4] Switzlerand appealed this decision to the Grand Chamber and an final decision is still pending.
World Athletics forced Semenya to take unnecessary hormonal medication, publicly undressed her by releasing her genetic information without her consent, deprived her of her livelihood, and stole her right to personal autonomy, among many other violations.[5] Surely this is the easiest way to make women’s sports fair, right? If you were World Athletics, you would make sure to test every less invasive alternative before making someone undergo unnecessary surgery? Right?
No. In fact, there is a simple test that World Athletics could use instead of forcing athletes to undergo painful and dangerous medical procedures. Carbon-isotope-ratio tests can easily detect the difference between natural and artificial testosterone—eliminating the need for the hyperandrogenism policy.[6] The hyperandrogenism policy does not protect against doping athletes competing. It serves a simple two-fold purpose of barring clean athletes and imposing an outdated Western gender stereotype on athletes from around the world.
By narrowing World Athletics’ policy to only ban athletes from competing in races who commit doping violations with artificial testosterone, it would reduce outdated sex stereotypes and only punish athletes who have violated doping rules to have an unfair advantage. Further, an injunctive effect on the policy would reduce indirect discrimination, especially on queer women of color from the Global South. Modifying the policy in this manner would bring women’s sports in line with the standard practices used in men’s sports, since there are no analogous policies restricting men’s natural testosterone levels.
[1] Taylor Vann, Caster Semenya and the Policing of Competitive Athletic Advantage, 53 Conn. L. Rev. 1019, 1021 (2022); Molly Webster & Sarah Qari, Gonads: Dutee, Radiolab (Aug. 5, 2021), https://radiolab.org/episodes/dutee.
[2] Press Release, World Athletics, WMA Urges Physicians not to implement IAAF rules on classifying women athletes (Apr. 25, 2019); Gerald Imray, Semenya Taking Case to European Court of Human Rights, AP News (Feb. 25, 2021), https://abcnews.go.com/Sports/wireStory/semenya-taking-case-european-court-human-rights-76106450?cid=clicksource_4380645_15_hero_headlines_headlines_hed; Health & Science Official Documents, World Athletics, https://www.worldathletics.org/about-iaaf/documents/health-science (last visited Feb. 25, 2023).
[3] Council of Eur. et al., Guide on Article 3 of the European Convention on Human Rights: Prohibition of Torture, Eur. Court of Hum. Rts. 12 (1st ed., Aug. 31, 2022); Council of Eur. et al., Guide on Article 8 of the European Convention on Human Rights: Right to Respect for Private and Family Life, Home and Correspondence, Eur. Court of Hum. Rts. 7 (Apr. 30, 2022); Council of Eur. et al., Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol App No. 12 to the Convention: Prohibition of Discrimination, Eur. Court of Hum. Rts. 6 (Apr. 30, 2022).
[4]‘A Long Time Coming’: Caster Semenya ‘Elated’ to Win Discrimination Case, Guardian (July 12, 2023), https://www.theguardian.com/sport/2023/jul/12/caster-semenya-elated-court-ruling-human-rights-discrimination-case#:~:text=“The%20European%20court%20of%20human,legal%20team%20in%20South%20Africa; Semenya Case Referred to European Rights Court’s Grand Chamber (Nov. 6, 2023), https://www.reuters.com/sports/athletics/semenya-case-referred-european-rights-courts-grand-chamber-2023-11-06/.
[5] Jamie Strashin, What’s the Real Problem with Caster Semenya, CBC Sports (May 14, 2018), https://www.cbc.ca/sports/olympics/summer/trackandfield/caster-semenya-cultural-bias-1.4661929.
[6]The Test That Caught Tom Danielson, VeloNews, https://www.velonews.com/news/the-test-that-caught-tom-danielson/ (last visited Feb. 25, 2023); Thomas Piper et al., Carbon Isotope Ratios of Endogenous Steroids Found in Human Serum—Method Development, Validation, and Reference Population-Derived Thresholds, 413 Analytical & Bioanalytical Chemistry 5655, 5661 (2021).
It is February, in Texas, and the lights are out. Texans are weathering an unanticipated cold front. As masses flock indoors, the demand for electricity in the form of light and heat spikes. Meanwhile, several electric generating plants are offline due to complications with the colder-than-expected weather. What year is it?
While most remember the viral Texas blackouts caused by winter storm Uri in 2021, less are aware that Texas has experienced a pattern of severe cold-weather events disrupting its electric service dating back to 1983.[1] Winter storm Uri, undoubtedly, was the biggest of those events: at its peak, the storm took 34,000 MW of electric generation capacity offline, leaving two-thirds of Texans literally powerless.[2] After each of the three most severe cold-weather events in the last 50 years—1989, 2011, and 2021—regulatory bodies conducted investigations and made recommendations “aimed at improving winterization on the part of the [electric] generators.”[3] The recommendations in the 1989 and 2011 reports went largely unheeded by Texan electric generators and regulators, and the 2021 recommendations may meet the same fate.
Officials in Texas are facing increased calls for Texas to connect with the national grid.[4] Texans are finalizing criticizing the State’s repeated failures. The 2011 power outages in Texas were a direct reflection that Texan electric generators lack adequate infrastructure to provide reliable power during cold-weather emergencies. After failing to address these infrastructure concerns in 2011, the Texas Legislature passed two bills in response to Uri: 2021 Senate Bills 2 and 3.[5]
As a law pertaining primarily to state-agency governance, SB 2 did little to improve, or mandate improvements to, Texas’ electric generation infrastructure.[6] Several sections of the bill amended the Texas Utilities Code to require several leadership positions in the Public Utility Commission of Texas to be Texas residents, providing little (if any) support to Texas’ grid infrastructure.[7] While having a resident of the state in charge of regulating public utilities may provide a better leader, this requirement in no way guarantees better leadership or any meaningful action to protect Texas’ grid. Likely, the Texas Legislature put this provision in place to increase the likelihood of Texas remaining independent from federal regulation in the face of increasing calls for Texas to join the national grid.[8] Overall, SB 2 does little to curb Texas’ power issues and instead provides for Texas continuing energy independence by mandating protectionist laws, which put all positions of power in Texas’ energy regulatory scheme in the hands of Texans.
While SB 2 involved small amendments to existing code with some new sections, the lengthier SB 3 established several new sections of code. The bill created two new committees for developing and enforcing reliability standards; established new emergency response alert systems; and raised the fines chargeable to noncompliant utilities. Ultimately, the bill is likely to enhance confusion around who is responsible for energy reliability in Texas. The federally delegated Texas Reliability Entity, the Public Utilities Commission of Texas (PUCT), the Texas Railroad Commission, and now both the Texas Energy Reliability Council and Texas Electricity Supply Chain Security and Mapping Committee all have some statutory duties around the development and enforcement of reliability standards for energy producers and transmission operators in the state of Texas.[9]
Texas has a major energy infrastructure problem that the state has failed to address for decades. As climate change ramps up, the occurrence of severe weather events in Texas (and elsewhere) is highly likely to increase. The most recent cold-weather blackouts of 2021 were the most severe on record, resulting in a number of fatalities and a huge economic hit to the state. If Texas does not address the shortcomings of its electric generation infrastructure, it is doomed to continue suffering from worse and worse blackouts like those in February 2021.
The current response, 2021 SB 2 and SB 3 signed into law in the wake of Uri, is not enough. The two bills together primarily increase reporting functions of the PUCT and other energy-related entities. By assigning many organizations the job of creating, proposing, and enforcing new and improved reliability standards for Texas’ infrastructure, the Texas Legislature is asking for confusion and dysfunction as competing federal and state agencies fight over reliability standards. More importantly, each of those entities will be left pointing the finger at the other in the wake of the next cold-weather blackouts.
Now to get back to where we started: it is February, in Texas, and the lights are out. Texans are weathering an unanticipated cold front. As masses flock indoors, the demand for electricity in the form of light and heat spikes. Meanwhile, several electric generating plants are offline due to complications with the colder-than-expected weather. What year is it? Hopefully not 2023, 2024, or beyond.
[1] Fed. Energy Reg. Comm’n and N. Am. Elec. Reliability Corp., Report on Outages and Curtailments During the Southwest Cold Weather Event of February 1–5, 2011: Causes and Recommendations 7 (2011) [hereinafter FERC/NERC 2011 Report].
[2] Umair Irfan, Why the Texas Power Grid is Struggling to Cope with the Extreme Cold, Vox (Feb. 16, 2021), https://www.vox.com/2021/2/16/22284140/texas-blackout-outage-winter-storm-uri-ercot-power-grid-cold-snow-austin-houston-dallas.
[3]FERC/NERC 2011 Report at 10; Fed. Energy Reg. Comm’n and N. Am. Elec. Reliability Corp., The February 2021 Cold Weather Outages in Texas and the South central United States 8 (2021) [hereinafter FERC/NERC 2021 Report].
[4]See, e.g., Erin Douglas et al., Texas Leaders Failed to Heed Warnings the Left the State’s Power Grid Vulnerable to Winter Extremes, Experts Say, Tex. Trib. (Feb. 17, 2021), https://www.texastribune.org/2021/02/17/texas-power-grid-failures/ (stating that “Texas policy makers should consider more connections to the rest of the country.”); see, e.g., Catherine Morehouse, Congress, Texas Should ‘Rethink’ ERCOT’s ‘Go it Alone Approach’: FERC Chair Glick, Util. Dive (Feb. 19, 2021), https://www.utilitydive.com/news/congress-texas-should-rethink-ercots-go-it-alone-approach-ferc-chair/595335/ (quoting then-FERC Chairmain Richard Glick, who called Texas energy independence “just to keep FERC at bay . . . as the proverbial cutting off your nost to spite your face.”).
[5] 2021 Tex. Gen. Laws 425 (SB 2); 2021 Tex. Gen. Laws 418 (SB 3).
[6] Recall from both the 2011 and 2021 FERC/NERC reports that poor infrastructure—not poor oversight—was the main culprit of the outages. While oversight and infrastructure development are related, the PUCT had the ability to mandate infrastructure improvements prior to SB 2’s passage. See FERC/NERC 2011 Report; see FERC/NERC 2021 Report.
[9]See 16 U.S.C. § 824 (delegating authority over reliability standards to NERC, and further commanding regulators to allow NERC to delegate further—which it has done in many cases, including to the Texas Reliability Entity, one of many governing bodies with authority over reliability standards in Texas.); see also Tex. Util. Code § 39.151 (delegating the Public Utilities Commission of Texas to “adopt and enforce rules relating to reliability of the regional electrical network.”); see also Tex. Util. Code § 121.2015 (assigning the Texas Railroad Commission the responsibility of adopting rules for gas pipeline service reliability); see also 2021 Tex. Gen. Laws. 418 (creating the Texas Energy Reliability Council and the Texas Electricity Supply Chain Security and Mapping Committee; both entities have reliability related responsibilities outlined in the code).
Submissions The Vermont Law Review continually seeks articles, commentaries, essays, and book reviews on any subject concerning recent developments in state, federal, Native American, or international law.
