Environmental protection

  • February 28, 2012
    Guest Post

    By Susan Farbstein and Tyler Giannini, Associate Clinical Director and Clinical Director of Harvard Law School’s Human Rights Program. Farbstein and Giannini are co-counsel in two Alien Tort Statute cases and have submitted amicus curiae briefs in numerous others, including in support of the petitioners in Kiobel v. Royal Dutch Petroleum Co.


    Today, the U.S. Supreme Court hears the most important human rights case of the term. Kiobel v. Royal Dutch Petroleum Co. will determine the fate of corporate liability under the Alien Tort Statute (“ATS”), a 1789 law passed by the First Congress. The plaintiffs allege Shell’s complicity in killings and crimes against humanity committed in Nigeria during the 1990s. Now the Supreme Court must decide whether corporations who profit from human rights abuse are exempt from civil liability for these activities — even though natural persons are unquestionably liable for the same acts.

    The case has attracted a slew of amicus briefs and recent press coverage. On one side, those like John Bellinger, a former U.S. State Department Legal Advisor, argue for completely exempting corporations from suit under the ATS. On the other side are those like Ka Hsaw Wa, the Executive Director of EarthRights International, who notes the importance of these cases to survivors of corporate abuse, and Peter Weiss, the Vice President of the Center for Constitutional Rights, who rightly points out that total corporate immunity would give corporations more rights and legal protections than people.

    The debate stems from a 2010 Second Circuit Court of Appeals decision, which held that people could be sued under the ATS, but corporations could not. That ruling broke with more than a decade of jurisprudence in which numerous courts had repeatedly found or assumed that corporations could be sued under the statute.

    Mr. Bellinger asserts that because the alleged violations often take place abroad, corporate ATS cases should not be allowed in U.S. courts. Corporations, however, routinely answer in U.S. courts for their activities overseas, whether in contract cases or run-of-the-mill product liability claims. And when there is a better forum to hear a case, defendants can — and do — request that the case be moved. Yet under Mr. Bellinger’s view even when there is no alternate forum, a suit still should not be allowed to proceed here against U.S.-based corporations. He would deny survivors of human rights abuses even this last resort. 

  • February 23, 2012
    BookTalk
    Poisoned
    The True Story of the Deadly E. Coli Outbreak That Changed the Way Americans Eat
    By: 
    Jeff Benedict

    By Jeff Benedict, a best-selling author and journalist


    Before I wrote Poisoned, my wife Lydia spent two years trying to convince me to do a book on the food industry. I resisted, saying guys like Michael Pollan and Eric Schlosser did that. I write nonfiction stories, usually ones built around legal disputes. I couldn’t see how to do a compelling legal story around food. 

    Then something happened. Lydia revolutionized the way our family eats. This did not happen gradually. One week she cleaned out our cupboards and refrigerator, getting rid of everything from brand-name cereal to frozen meat to staple products like butter, flour, and sugar. Even the salt and pepper went. Then she restocked our kitchen with organic foods. We also started growing directly to small local farms to purchase our meat, poultry, and dairy products. 

    We didn’t stop here, though. We converted our 20-acre property into an organic fruit and vegetable farm. For a guy who grew up in a beach community in Connecticut, this was culture shock. But our four children loved it because we added horses, guinea fowl and chickens. We now collect close to twenty farm fresh eggs per day. On top of that we plant, water, weed, harvest and can. Now when we say grace, we mean it. 

    Besides improving the way I look and feel, this lifestyle change dramatically altered the way I look at food. The transformation got me searching earnestly for a food-related book topic.  That’s when I came across Bill Marler, a personal injury lawyer who has emerged as the country’s most influential advocate for food safety. Today, food safety is a serious public-health problem. The CDC estimates that food-borne disease causes about 48 million illnesses per year. Roughly one in six Americans get sick from bad food. Many of these cases are mild gastroenteritis, commonly referred to as the stomach bug. But too many food poisoning cases are more serious, resulting in approximately 325,000 hospitalizations and 5,000 deaths annually. The fatalities are often children and the elderly. 

  • January 20, 2012
    Guest Post

    By John Knox, a law professor at Wake Forest University School of Law and a member scholar at the Center for Progressive Reform. This commentary is cross-posted at CPRBlog.


    For more than a century, the United States took the lead in organizing responses to international environmental problems.  The long list of environmental agreements spearheaded by the United States extends from early treaties with Canada and Mexico on boundary waters and migratory birds to global agreements restricting trade in endangered species and protecting against ozone depletion.  In the last two decades, however, U.S. environmental leadership has faltered. 

    The best-known example is the lack of an effective response to climate change, underscored by the U.S. decision not to join the Kyoto Protocol.  But the attention climate change receives should not obscure the fact that the United States has also failed to join a large and growing number of treaties directed at other environmental threats, including marine pollution, the loss of biological diversity, persistent organic pollutants, and trade in toxic substances. 

    Today the Center for Progressive Reform publishes Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  My co-authors and I show the importance of ten treaties and urge the Obama Administration and Congress to work together to ratify them.  Unlike the Kyoto Protocol, these treaties do not generally raise difficult partisan issues.  They were all negotiated with substantial U.S. input, and they all provide clear benefits to the United States – or they would if only the United States belonged to them. 

  • November 18, 2011

    by Jonathan Arogeti

    “Cap and trade is not going to happen next year, or the year after that, … or the year after that,” recalled the former staff director and chief counsel for the House Select Committee on Energy Independence and Global Warming, paraphrasing President Obama’s forecast for climate change legislation following the 2010 midterm election.

    Gerard J. Waldron, now a partner at Covington & Burling, opened a recent ACS panel discussion, “Global Warming and Political Cooling,” with a reflection on the Obama administration’s efforts to combat this problem. In June 2009, the House passed the American Clean Energy and Security Act, which according to The New York Times was the first time either the House or the Senate had approved legislation “meant to curb the heat-trapping gases scientists have linked to climate change.” That summer’s apex of optimism only gave way to the “great failure” that was the 2009 United Nations Climate Change Conference. And by the following summer, the Senate still had not taken up the bill.

    Against this backdrop, environmental groups are looking to new local, state and regional legislative efforts along with enforcement of national legislation already on the books to combat climate change.

    Environment America, one such group, released a report on restoring “momentum in the fight against global warming.” According to its estimates, the United States could reduce emissions standards by as much as 20 percent by 2020 and 34 percent by 2030 by adopting clean energy policies that include increased CAFE standards.

    “Wherever we can get emissions reductions, wherever we can get them quickly, wherever the public support exists, we’re working to do that,” said Anna Aurilio, director of Environment America’s Washington, D.C. office. “We’re going to have to actually enact comprehensive climate legislation, but there is a ton of stuff we can do to reduce tons.”

    She points to these “incremental steps” that will bend the emissions curve downwards and ultimately allow this country to wean itself off of oil. “We’d like to live in communities where people’s houses use no net energy except for the energy that they produce themselves on site, where they can get to work or school or play through alternatives other than driving, and if they have to drive, that their car can plug into the solar panel on the roof.”

  • November 4, 2011
    Guest Post

    By William Funk, the Robert E. Jones Professor of Law at Lewis & Clark Law School and a Member Scholar of the Center for Progressive Reform. Together with two other law professors, Thomas McGarity of the University of Texas and Sandra Zellmer of the University of Nebraska, he has filed an amicus brief supporting respondents’ arguments against preemption. This is a cross-post from CPRBlog.


    On November 9 the Supreme Court will hear oral argument in National Meat Association v. Harris, wading once again into the mire of federal preemption. The National Meat case involves a California statute that prohibits the slaughter of non-ambulatory animals for human consumption and requires that non-ambulatory animals be immediately and humanely euthanized. A federal law, the Federal Meat Inspection Act (FMIA), thoroughly regulates, although one could question how strictly, the process of slaughtering animals for human consumption. It also contains an express preemption provision that prohibits states from making any “requirements within the scope of this chapter with respect to premises, facilities and operations of any establishment [subject to this chapter], which are in addition to, or different than those made under this chapter.” 21 U.S.C. § 678. But then it also provides that: “this chapter shall not preclude any State ... from making requirement[s] or taking other action, consistent with this chapter, with respect to any other matters regulated under this Act.” The National Meat Association filed suit for declaratory and injunctive relief against the California law as it applies to swine and the processing of pork, claiming that the California law is preempted by the federal law. The Ninth Circuit, in an opinion reflecting the inimitable style of Judge Alex Kozinski, held that the California law was not preempted. The court said that the California law merely identifies what animals may be slaughtered for human consumption, not how they are to be slaughtered. And the law’s provision requiring the euthanizing of non-ambulatory animals, the circuit court said, does not relate to the slaughtering of animals for human consumption.  The Supreme Court, against the advice of the Solicitor General, granted certiorari.