Law


“As of Wednesday, Wisconsin’s electronics recycling law bans the use of landfills or incineration to dispose of electronic devices. The ban covers televisions; computers (including desktop, laptop, netbook and tablet computers); computer monitors; desktop printers (including those that scan, fax, or copy); other computer accessories, including keyboards, mice, speakers, external hard drives and flash drives; DVD players, DVRs, VCRs and other video players; Fax machines; and cell phones.”

See here.

Today was the first day of classes at Vermont Law School, and I’m teaching Natural Resoucres Law.  I enjoy teaching this course immensely.  Today we identified three key questions: (1) What is a natural resource?; (2) Who should protect natural resources?; and (3) Why should we protect natural resources?  These are three questions that must be answered to create natural resources law and policy.

One of my favorite parts of the first day of class is asking students, what is a natural resource?  Bison? Cattle? Hamburger? Trees? Lumber?  We have strong viewpoints as to what we should protect as natural resources, but we often give less thought to the cultural, social, artistic, religious, and philsophical reasons for labeling some things as ‘natural resources’ and others not, and, therefore, choosing what deserves protection.

(Of note: It’s also my daughter’s first day of Kindergarten.  I think I’m more nervous about Kindergarten than she is!)

So asks this article about the Swedish music scene.  But the same question applies to the Swedish environmental scene, for a country that has proven to be a leader on the issue of climate change, especially in the context of food.

On October 23, 2009, the New York Times ran an article entitled To Cut Global Warming, Swedes Study Their Plates.” This Swedish movement is driven by two major events: (1) the creation of new national dietary guidelines that give equal weight to health and the environment, and (2) the major organic labels in Sweden embarking on a new initiative called “Klimatmärkingning för Mat,” or “Climate Labelling for Food” in English.

For a few weeks next spring I plan to be a Guest Researcher at Uppsala University Faculty of Law in Sweden to lay the groundwork for a comparative project one environmental labeling for food in the United States and Sweden.

(To hear the music click here and here.)

I have been of the view that climate change regulation would happen through the executive branch and the EPA, and that this course might, in fact, be preferable to other avenues.   The Supreme Court’s decision in Massachusetts v. EPA permitted the EPA to go forward with regulating greenhouse gases under the Clean Air Air.  And now with the government’s brief in AEP v. Conn., arguing that common law claims are not available, and no hope of passing climate legislation in Congress, this seems to be the path.  Greenwire’s two topic articles today sum the story up best with their titles– “Obama admin urges Supreme Court to vacate ‘nuisance’ ruling” and “With Hill hopes dashed, advocates circle wagons at EPA.”

UPDATE: An interesting take on this over at Legal Planet.

In 2007, I wrote an article titled “Advancing the Rebirth of Environmental Common Law.”  The article, in part, discussed the case Connecticut v. Am. Elec. Power Co., decided in the Southern District of New York where state and local governments filed suit against power companies under state public nuisance law in order to mitigate greenhouse gas emissions.  On appeal to the Second Circuit, the Court vacated the decision of the district court and decided that plaintiffs could proceed in their nuisance claims.  I recently posted to an interesting piece about the Obama Administration’s potnetial response in the case, and whether it would act strategically in order to pressure Congress to pass climate change legislation.  Now it seems that the Tennessee Valley Authority has filed its petition (click here for petition), signed by the U.S. Department of Justice, with the Supreme Court, asking the Court to grant cert and state that plaintiffs cannot pursue nuisance claims because now EPA is beginning to regulate greenhouse gases under the Clean Air Act.

The subject of overpopulation has become taboo.  American public interest groups no longer discuss the issue as an environmental problem, the issue has been removed from policy platforms and websites of environmental groups, and, to the extent the issue of population has been mainstream, its focus is on human rights, gender equality, and the ability to have children.

Yet, population growth and the Earth’s carrying capacity are major issues.  China and India, each with over 1 billion people, view overpopulation as a major economic and national security issue.  China is often criticized for its one-child policy, mostly due to reports of its aribitrary and sometime brutal enforcement of the policy.  And now India is using cash bonuses to delay citizens from having more children.

When I was in China, the Chinese were (a) often upset that the West criticized their one-child policy, and (b) were surprised that I both recognized that population size was a legitimate concern and commended the Chinese government for recognizing overpopluation as a legitimate issue, even if I strongly disagreed with the arbitrary and capricious nature of its enforcement and admitted such a policy could not and would not work in the U.S.

Unfortunately, in America and globally, population growth is sort of a political hot potato.  Obviously for political and constitutional reasons, setting a child limit in the U.S. would never fly, but, even though I acknowledge American individualism and personal autonomy, it pains me that open policy discussions cannot be had about incentives to keep family sizes, and thus resource consumption, down at both the domestic and international level.  In the 1990s, phrases like ‘zero-population-growth’ (ZPG) and carrying capacity were big buzz words, but these debates/discussion seem to have been lost.

Legal Planet has an interesting post about the Obama Administration’s response in the case Connecticut v. AEP, and whether it will act strategically in order to pressure Congress to pass climate change legislation.  But again, as I posted before, are we better off without new legialstion and instead having the EPA regulate greenhouse gases under the Clean Air Act?

Dan Farber on Legal Planet posts about when an environmental impact statement is necessary for USDA approval of genetically-modified crops, and Friday’s federal court decision revoking the USDA approval of genetically modified sugar beets for violating the National Environmental Policy Act.  The concern is that, absent safeguards and due to cross-pollination, genetically-modified crops will over-run conventional crops, i.e., farmers won’t be able to produce non-GMO crops.  This issue has garnered attention of late with the Supreme Court’s decision in Monsanto v. Geerston Seed, and Vermonters should find this case of interest since both the sugar beet and Monsanto (about Roundup Ready alafalfa) cases included High Mowing Organic Seeds of Wolcott, Vermont as a plaintiff.  Their involvement should be of no surprise given that that area of Vermont has been home to, according an article to author Bill McKibben, “the most interesting agriculture experiment in the country,” where neighbors are eating solely from locally produced foods rather than industrial processed foods.

[Note: In writing this post, I learned of a book I will ask the Vermont Law Library to acquire, The Town That Food Saved: How One Community Found Vitality in Local Food by Ben Hewitt.]

In case you haven’t been following, a federal court in California overturned the state’s ban on gay marriage as violating the 14th Amendment of the U.S. Constitution.  The court stated:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

“Rational basis” is a legal term of art.  Since marriage is a fundamental right, the government bears the burden of proving that Prop 8 is narrowly tailored to meet a compelling state interest (i.e. strict scrutiny).  The lower court found that Prop 8 could not even survive rational basis review (a lower form of evaluation), let alone strict scrutiny.  The court opinion in full can be found here.

The plaintiffs’ case was argued by David Boies and Ted Olson, ideological opposites who were the attorneys  in the 2000 Supreme Court battle Bush v. Gore which decided the Presidency.  And, of note, Ted Olson was the Solicitor General under President George W. Bush.  What makes this fact so fascinating is that this case could ultimately be decided by the U.S. Supreme Court.

Now the question seems to be whether same-sex couples can begin getting married immediately or whether the decision of the district court should be stayed until the Ninth Citucit can rule.  It is both an interesting case in terms of substantive constitutional law, and now civil procedure.  My University of Chicago law school classmate, Dan Powell, former clerk to Supreme Court Justice John Paul Stevens and now Deputy Attorney General of California, just filed with the Ninth Circuit the CA AG’s Opposition to the Emergency Motion for Stay Pending Appeal.  In terms of the stay, the California Attorney General’s Office is arguing that same-sex couples should be allowed to marry immediately since while there may be administrative burdens if the marriages are later declared invalid, these burdens are outweighed by the district court’s conclusion that a constitutional violation is occuring.

Vermont has just signed a 26-year deal for energy with Hyrdo-Quebec.  See here.  But, as I have previosuly noted, should hydro-electric power be considered renewable energy?

« Previous PageNext Page »