Law School Faculty Blog
5Dec/16

With or Without the Clean Power Plan, It’s Up to the States to Transition to Clean Energy

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Environmentalists are understandably wringing their hands over the likely post-election demise of the Clean Power Plan, the Obama administration's rule to reduce greenhouse gas emissions from power plants, which are the nation's single biggest source of carbon emissions. But, with or without the Clean Power Plan (the Plan), the states hold the cards to a clean energy transition.

Even if the fossil fuel interests intent upon perpetuating a profitable status quo end up dominating Congress and federal energy and environmental agencies, states will still have the power to steer the energy sector away from fossil fuels. By promoting renewable energy, like solar and wind power, and by promoting energy efficiency, states can and should lead the way. In so doing, they can transform the energy sector from a system that benefits vested fossil fuel interests and toward a sustainable infrastructure that benefits everyone through new jobs, cleaner air, and reduced risks from climate change. 

28Nov/16

Practitioner’s Spotlight

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This Q&A with Professor De La Vega was first published in the Fall 2016 issues of the California International Law Journal.

This year’s recipient of the Warren M. Christopher International Lawyer of the Year award is Professor Connie de la Vega of the University of San Francisco School of Law.  Professor de la Vega writes extensively on international human rights law and participates in United Nations human rights meetings. She has submitted amicus briefs detailing international law standards to U.S. courts for juvenile death penalty and affirmative action cases, including Roper v. Simmons and Graham and Sullivan v. Florida, and has been cited by the U.S. Supreme Court.  Professor de la Vega is the author of the Dictionary of International Human Rights Law, and is the co–author of The American Legal System for Foreign Lawyers and International Human Rights Law: An Introduction.  She established the Frank C. Newman International Human Rights Law Clinic at USF and is a founding member of Human Rights Advocates.

26Sep/16

Landmark California Law Links Emissions Reductions and Environmental Justice Goals

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California's recent climate legislation is noteworthy not only for its toughest-in-the-nation carbon reduction goals – 40 percent below 1990 emissions by 2030 – but also for continuing the state's tradition of linking climate and environmental justice goals. AB 197, which accompanied a carbon reduction bill known as SB 32, prioritizes direct emission reductions likely to improve air quality; increases public access to information about carbon, conventional, and toxic emissions; and establishes a new cross-cutting legislative oversight committee to systematically monitor California's multi-faceted climate programs.

The environmental justice movement has long recognized the connection between climate policies and environmental justice. Advocates have supported stringent carbon reduction targets because poor and marginalized communities are the most vulnerable to climate change impacts like heat waves, drought, and economic disruptions to agriculture and tourism.

9Sep/16

2nd Circuit dismisses $655M award against PLO

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The 2nd U.S. Circuit Court of Appeals, on Aug. 31, ordered dismissal of a $655 million award against the Palestinian Liberation Organization. That judgment, in Sokolow v. Palestine Liberation Organization, is exemplary of recent retrenchment by United States federal courts on jurisdictional grounds in high profile international human rights litigation.

The extraterritorial reach of United States courts in such cases, at least since the holding of the 2nd Circuit in the Filártiga v. Peña-Irala case authored by same circuit in 1980, has often been considerably more aggressive. In Filártiga the court found jurisdiction for compensation for torture in Paraguay. It did so by resurrecting the Alien Tort Claims Act, a previously moribund statute dating from the Judiciary Act of 1789, granting jurisdiction "where an alien sues for a tort only, [committed] in violation of the law of nations." Despite that historically mysterious phraseology, Filártiga appeared to swing wide the doors for jurisdiction providing for compensatory recourse for activities of entities and individuals responsible for human rights abuses outside the United States. With the advent of terrorist activity as a global phenomenon, the U.S. Congress demonstrated a similarly aggressive extension of the extraterritorial reach of U.S. courts, passing anti-terrorism legislation that included explicit recourse for U.S. victims of terrorist violence abroad, the basis for the claims in Sokolow.

6Jul/16

Fisher Helps Promote U.S. Treaty Obligations

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The U.S. Supreme Court upheld the University of Texas’ admission program that considers race as one of seven factors in the second part of its undergraduate admissions’ system.  This blog follows one covering the majority opinion.  That blog is available here.

The majority opinion by Justice Kennedy, which was joined by Justices Ginsburg, Breyer and Sotomayor did not raise the applicable treaty and international law that was raised in the amicus brief of Human Rights Advocates, thePoverty & Race Research Action Council, the Advocates for Human Rights, the University of Minnesota Human Rights Center, and the US Human Rights Network.  This blog will address how the treaty and international law is applicable to the case and how it related to the majority opinion.

24Jun/16

Much Ado About Nothing

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The U.S. Supreme Court upheld the University of Texas’ admission program that considers race as one of seven factors in the second part of its undergraduate admissions’ system. This second part affects about 25% of the students admitted to the University of Texas, where the majority of students are admitted through the State’s Top Ten Percent Law which requires that the top 10% of all applicants from each high school be admitted to the University. Justice Kennedy wrote the majority opinion and was joined by Justices Ginsburg, Breyer and Sotomayor. Justices Thomas, Alito and Roberts dissented, filing two separate opinions between them. Fisher v. University of Texas at Austin.

27May/16

Animus and Unequal Dignity: The Purpose and Effect of North Carolina’s New Anti-LGBT Law

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On March 24, 2016, lesbian, gay, bisexual, and transgender (“LGBT”) North Carolina residents woke up to a new and hostile legal reality. Just one day prior, Republican lawmakers convened a special session—the first in thirty-five years—solely to consider a bill that permits (and perhaps encourages) discrimination because of sexual orientation and gender identity. Following only twelve hours of debate, the bill passed both General Assembly chambers with unanimous Republican support, and Republican Governor Pat McCrory signed House Bill 2 (“H.B.2”) into law that same night.

H.B.2 is breathtaking in scope. First, H.B.2 requires that all North Carolina multiple-occupancy public restrooms and changing facilities be segregated by biological sex. The law defines “biological sex” as “[t]he physical condition of being male or female, which is stated on a person’s birth certificate.” For transgender North Carolinians, changing sex on a birth certificate requires proof of sex reassignment surgery—a medical procedure that many trans people cannot afford or do not want. Under this law, individuals who identify and are perceived as women, for example, must use restrooms designated for men. Forcing individuals to use restrooms incongruent with their gender identity puts trans men, women, and children at daily risk for violence and arrest. Trans people thus have a choice: break the law and use the restroom that matches their gender identity, or follow the law and risk humiliation, harassment, and even death.

24Mar/16

In Deference to Majoritarian Oppression: Justice Scalia’s Indifference to LGBTQ Lives

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On June 26 2015, in Obergefell v. Hodges, a five-member majority of the United States Supreme Court struck down state bans on same-sex marriage as unconstitutional. For the LGBTQ rights movement, this victory capped over two decades of civil rights advocacy that sought equal treatment for same-sex couples vis-à-vis different-sex couples.

Justice Scalia dissented in Obergefell, and he began with a confession: same-sex marriage, he wrote, “is not of immense personal importance to me.” With this, Scalia glibly distanced himself from an issue that is impossibly close for many. His stated disinterest reads as cold against a backdrop featuring countless activists who spent lifetimes seeking basic recognition of their relationships and identities. Scalia’s Obergefell dissent is just one opinion in a long line of many in which he opposed LGBTQ rights because of both his personal indifference and his belief that minorities are legitimately subject to the whims of the majority.

10Feb/16

The Clean Power Plan: Continuing Momentum after the Supreme Court’s Stay

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The Supreme Court’s February 9 stay of the Obama Administration’s Clean Power Plan may have removed the states’ immediate compliance obligations, and it will undoubtedly remove some pressure for action in states resistant to change.  Nonetheless, the extensive data and fundamental state and regional planning processes generated by the Clean Power Plan (the Plan) may continue to bear fruit even as the Plan remains in legal limbo.

The Clean Power Plan has already triggered progress.  To determine feasible reductions on existing power plants, EPA spearheaded extensive analyses of regional capacities to shift to less-polluting natural gas and to develop renewables.  In addition, EPA gathered detailed information on the demographics around existing power plants to help states assess the environmental justice implications of their energy choices.  EPA’s research and the resulting data can provide essential information for state and federal policies regardless of the Plan’s status.

22Dec/15

The Paris Agreement and Theories of Justice

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As we seek to understand and assess the Paris Agreement over the coming months and years, we will continue to contemplate the critical underlying political and ethical question: who should be responsible?  And to what degree should that responsibility take the form of direct action versus providing support in the form of financing, technology transfer, and capacity-building?  As my Center for Progressive Reform colleague Noah Sachs has observed, the principle of common but differentiated responsibility (CBDR) has been a consistent theme in all of the climate negotiations. But, what CBDR means—why and when responsibilities should be common, and why and when they should be differentiated—is continually contested and continually shifting.  I briefly highlight the allocation of responsibility in the Paris Agreement.  Drawing upon two recent articles on adaptation justice, I then provide a short roadmap to the theories of justice at play in the international negotiations, theories relevant to determining responsibility for both mitigation and adaptation.