Institute for Global Law and Policy

Registration is open for the IGLP: The Conference taking place at Harvard Law School, June 2-3, 2018. My daughter is in this picture. Can you find her?


April Showers

ABA Business Law Section Spring Meeting

Looking forward to taking my Business Organizations class to the ABA Business Law Section’s Spring Meeting this week at the Rosen Shingle Creek. We will be attending a session on Public Private Partnerships in International Business Law. This semester has seen a number of developments with international trade, tariffs, Facebook privacy concerns, transparency and disclosure in SEC filings, the decline of Toys R Us, the meteoric rise of online retail giants, and new cases of insider trading.

Delaware Law’s Human Dignity and Environmental Justice Symposium

On Friday, the Dignity Rights Project and Widener Law Review host the Dignity Rights and Environmental Justice Symposium. The Distinguished Speaker is The Honorable Bernice B. Donald, United States Court of Appeals for the Sixth Circuit.

Ken Kristl (Delaware Law) will moderate a panel on Legal Approaches to Environmental Justice Abroad. I speak on that panel regarding Water Hazards, Environmental Justice, and Biofuels, remotely with the following other presenters:

  • Stephen Kass, Carter, Ledyard & Milburn, “Responses to Climate Migrants: Helping Rural and Urban Residents of Developing Countries Remain or Return Home”
  • Jope Dayo, Delaware Law School: “Constitutional Rights to Environmental Dignity in Nigeria.”
  • Dina Townsend, Global Network for Human Rights and the Environment, and University of Tilburg, “Indigenous descriptions of the world and consultation that silences.”

Co-sponsors of the program include:

  • ABA Section on Civil Rights and Social Justice
  • Coming Clean
  • Delaware Concerned Residents for Environmental Justice
  • Delaware Law School Environmental Rights Institute
  • EarthJustice
  • Global Network for Human Rights and the Environment
  • Environmental Justice Health Alliance
  • NYC Bar Task Force on Climate Adaptation

You can register in person for the event here and the webinar here.

ABA Section on Environment, Energy, and Resources Spring Meeting

Next week, I look forward to being a part of dynamic conference with ABA SEER on a panel focusing on Technological Advances, Citizen Science, and Their Impact on Regulatory Control. Administrative Law Judge Francine Ffolkes of the Division of Administrative Hearings for the State of Florida will moderate the panel. My co-panelists include Susan M. Floyd, Senior Counsel at Entergy Services, Inc. and Dr. Joseph K. Lyou, President and Chief Executive Officer, Coalition for Clean Air/South Coast Air Quality Management District Governing Board. The panel description is below:

Environmental law and science go hand in hand. The law looks to science to provide critical factual data and science has responded by developing technologies for use by the both the legal and environmental communities. This panel will educate lawyers on the use of such technologies and focus our attention on scientific developments that not only make it easier to assure compliance with required permits or operational best practices, but also allow others, such as non-governmental organizations and the environmental justice community, to monitor and track environmental issues.


Central Florida Earth Day


Central Florida Earth Day includes exhibits and activities, taking place at Lake Eola Park in downtown Orlando on April 21, 2018 from 10:00 a.m.-6:00 p.m. Admission is FREE! Earth Day is a family-friendly, dog-friendly, alcohol-free, and smoke-free event. Earth Day is a vegan event; for information on why, visit the Why Vegan? page. Earth Day program is now in its 13th year.

11:00 a.m. “IDEAS For Us: 10 Years of Action in Orlando”
-Clayton Louis Ferrara, Executive Director/CEO of IDEAS For Us
-Sharon Hammond
-Chris Stampar
-Lee Perry

12:00 p.m. “‘Water’ You Doing to Help the Planet: Facing Concerns for Aquatic Environments”
-Geoff Palmer, Clean Machine
-Katrina Garvin Shadix, Bear Warriors United
​-Eric Rollings, Chair of Orange Soil and Water Conservation District
-Ed Young, Vice Chair of Seminole Soil & Water Conservation District

1:00 p.m. “Environmental and Climate Justice: Protecting People and Animals”
-Nadia Ahmad, Assistant Professor at Barry University Dwayne O. Andreas School of Law
-Michelle Suarez, Sr. Lead Organizer & Climate Justice Organizer for Organize Florida
-Aja-Nikiya Estro, Founder and Director of Compassion Kind, saving lives in Puerto Rico

2:00 p.m. “Green Works 2.0: A Discussion with Green Works Orlando”
-Chris Castro, Director of Sustainability
-Daniel Friedline, Public Outreach Coordinator
​-Ian Jurgensen, Sustainability Project Manager
-Brittany Sellers, Sustainability Project Manager

3:00 p.m. “Fair Food for All: Diet, Health, and Justice”
-Dawn Moncrief, Founder and Executive Director of A Well-Fed World, a food justice, hunger relief, and animal protection organization

-Kathy Schmitz, Senior Minister of First Unitarian Church of Orlando
-Dirk Dunbar, Professor with a Ph.D. in Interdisciplinary Humanities

4:00 p.m. “Awareness in Action: Florida Environmental Issues from the Perspectives of Front-Line Activists”
-Josie Balzac, Environmental Attorney, Professor, & IDEAS for Us Board Member
-Adam Sugalski, Executive Director of OneProtest – An Advocacy Organization
-Emily Bonilla, Making Voices Heard in Local Government
-Pati Robinson, Founder and director of the Cleaner Earth Project, a non-profit to reduce use of plastic bags

5:00 p.m. “Sustainable Business in the Sunshine State: Agriculture, Energy, and Consumerism”
-Michael Brown, President of Solar-Ray, Inc.
-Tim Burns, Co-Founder of Ecojoia and NorthShore Printing
-Nicole Inmon, Vegan chef with 20+ years of culinary experience

Hurricanes, Natural Disaster Preparedness, and Environmental Justice

Barry University hosted its annual Environmental Law Summit on April 5th.  The program featured keynote presentations by U.S. Representative Darren Soto, who represents Florida’s 9th District and is the first Floridian of Puerto Rican descent to represent Florida in Congress, and Dierdra Macnab, who is the former state president of the Florida League of Women Voters and leader of the Make Florida #1 in Solar Campaign. The event was co-sponsored by Barry University’s Center for Earth Jurisprudence, University of Central Florida’s Department of Legal Studies, ABA Section of Civil Rights and Social Justice’s Environmental Justice Committee, and the Puerto Rican Bar Association.

2018 flyer

Check out earlier programs:

Hurricane Maria and its Aftermath in Puerto Rico, October 11, 2017

The Department of Defense reports that two weeks after Hurricane Maria made landfall only 5.4 percent of citizens on the island of Puerto Rico have electricity, while 12.1 percent have cell service. Communications still remain a challenge on the island. Currently, only 14 of Puerto Rico’s hospitals had electricity, while 51 were “degraded” and in need of generators for power. The situation remains dire. The ABA Section of Civil Rights and Social Justice’s Environmental Justice Committee invites you to a webinar addressing the ongoing humanitarian crisis in Puerto Rico as a result of Hurricane Maria and its aftermath. The panel includes a distinguished group of experts working on the intersections of issues of environmental justice, energy rights, humanitarian relief, and civil rights. The group will discuss the obstacles Puerto Rico faces in the coming days and months ahead to restore electricity, rebuild infrastructure, and meet basic human needs. Panelists, moderated by Tiffany Sanchez (Barry Law), included Bernice Bird (Bird Law Firm), Sheila I Vélez Martínez (Pittsburgh Law), and Carlos Pares (Somos Solar). A recording of the program is available here.

Hurricanes Harvey, Irma, Maria, and Nate: Environmental Justice and Economic Justice Implications of Climate Change, November 8, 2017

It has been reported that Hurricanes Harvey, Irma, Maria, and Nate have been the strongest ever recorded in the Atlantic and the Caribbean. With a price tag already passing over $475 billion between just Hurricanes Harvey, Irma, and Maria, it is more probable than not that the economic damage will continue to rise in the months ahead. Moreover, as the impact of climate change is accelerating, marine environments and biodiversity are becoming increasingly vulnerable. These hurricanes have brought in unprecedented levels of rainfall, and many scientists at National Geographic agree that the “record-breaking rain was almost certainly shaped by rising temperatures from human activity.” It has been predicted that future storm surges could worsen partly due to sea level rise and partly due to the impending increase in the number of intense hurricanes. Our panel of experts will discuss the environmental impact of these hurricanes on climate change, and the economic challenges the affected areas will face in the coming months. The group will also discuss the growing movement for environmental justice in favor of legislative reform of water regulations, and the economic implications of such restructuring. The panelists, which was moderated by Tiffany Sanchez (Barry Law) included Victor Flatt (Houston Law), Barry Hill (Environmental Law Institute) and Rachel Deming (Barry Law).  The event was sponsored by the ABA CRSJ Environmental Justice and Economic Justice Committee. A recording of the program can be found here.


At a Crossroads: Native American Sovereignty, Water Rights, and Climate Change, November 3, 2017

Water is crucial for sustaining life, especially for Native Nations. As the impact of climate change is accelerating, frontline low-income and minority communities are increasingly vulnerable. Our panel of experts will discuss the crossroads of Native American sovereignty, water rights, and climate change. The group will also discuss the growing movement for environmental justice among tribal communities. Panelists included Edmund Clay Goodman (Hobbs Straus Dean & Walker), Stephen Walker (Lewis, Longman & Walker), and Elizabeth Kronk Warner (Kansas Law). Susan Larned (Barry Law) moderated the panel. Her article on the topic is forthcoming in the Barry Environmental and Earth Law Journal. The event was sponsored by the ABA CRSJ Environmental Justice and Native American Concerns Committee.The program is available here.

Environmental Justice Bill

Last week, the ABA Section of Civil Rights and Social Justice organized a program titled, “Environmental Justice in the 21st Century: Threats and Opportunities,” featuring a keynote address by U.S. Senator Cory Booker at the ABA’s Washington, D.C. office. The event was co-sponsored by the Environmental Law Institute, Beveridge & Diamond, and ABA Section on Environment, Energy, and Resources. The intent behind the program was to motivate the next generation of environmental justice advocates.

On October 24, U.S. Senator Cory Booker (D-NJ) and U.S. Rep. Raul Ruiz, M.D. (D-CA) introduced a landmark piece of legislation to eliminate environmental injustice. The Environmental Justice Act of 2017 (“EJA”) requires federal agencies to address environmental justice through agency actions and permitting decisions, and strengthens legal protections against environmental injustice for communities of color, low-income communities, and indigenous communities. The bill is the culmination of a months-long process of working with dozens of grassroots organizations across the country to craft a comprehensive bill that strengthens environmental justice protections for vulnerable communities.

This program also featured a panel discussion on Senator Booker’s recent landmark environmental justice legislation and the various ways it addresses critical issues for vulnerable communities nationwide, especially communities of color, in light of historical, ongoing challenges as well as new ones posed during this presidential administration. Other topics addressed included: changes at the Office of Environmental Justice of the EPA; recent appointments at EPA and the changing role of science in decision-making; and challenges to community efforts in support of environmental protection for clean air, water, and land via threats to citizen suits and enforcement.

Senator Booker was joined on the panel by Mustafa Ali, Vice President of Climate, Environmental Justice & Community Revitalization, for the Hip Hop Caucus, and former head of the EPA’s Office of Environmental Justice; Patrice Simms, Vice President of Litigation for EarthJustice, and former attorney at the U.S. Environmental Protection Agency, U.S. Department of Justice – Environment and Natural Resources Division, and Natural Resources Defense Council; and moderator, Randy Hayman, Principal, of Beveridge & Diamond, P.C., and former General Counsel of DC Water.

Should you or your institution be interested in partnering with ABA CRSJ on future programs, please let me know, and we would be glad to colloborate.

Necessity Defense in “Valve Turners” #ShutItDown Case

Valve Turner Appeals Court Refusal to Allow the Climate Necessity Defense

A precedent-setting case in Minnesota is setting the stage for an epic legal fight for climate change. Common Dreams reported earlier about “Victory for ‘Valve Turners’ as Judge Allows ‘Necessity Defense’ for Climate Trial.”

In a decision that is being called “groundbreaking” and “precedent-setting,” a district court judge in Minnesota has ruled that he will allow oil pipeline protesters to present a “necessity defense” for charges related to a multi-state action by climate activists last October [2016].

In his decision [in October 2017]. Judge Robert Tiffany ruled that four activists who participated in the #ShutItDown action—in which pipelines across five states were temporarily disabled, halting the flow of tar sands oil from Canada into the U.S.—may present scientists and other expert witnesses to explain the immediate threat of climate change to justify their action.

“The ruling is only the third time a judge in the United States has allowed for such a defense in a climate case,” InsideClimateNews reports. “The first case, in Massachusetts in 2014, did not go to trial after the prosecutor dropped the charges. A judge allowed the necessity defense in a Washington State case in 2016 but then instructed jurors they could not acquit on necessity.”

Today I joined a group of 100 law professors, who filed an amicus brief supporting the right to use the necessity defense.  Four protesters shut off valves for a pipeline that transports tar sands crude oil from Canada to the United States.

This appeal has a simple focus: can a jury see and hear evidence? The trial
judge ruled, after a hearing, that the jury could see and hear evidence supporting the defense of necessity at trial. The prosecution seeks to preclude the jury from doing so. Whether the jury can or cannot see and hear evidence — particularly necessity evidence in criminal cases — strikes at the core of constitutional law, public policy, and democracy itself.

The four people charged in this matter engaged in a civil disobedience action to highlight the global emergency caused by the failure to address climate change. Climate change, caused by the emission of greenhouse gases and the combustion of fossil fuels in particular, is already driving widespread destruction, loss of life and property, and business disruption. Scientists warn that continued fossil fuel emissions will drive the world into a state of uncontrollable heating, jeopardizing the habitability of Earth for humans. The world now faces climate tipping points that, if passed, would trigger cascading effects leading to catastrophe. Tar sands-derived oil is among the most emissions-intensive forms of fossil fuel energy.

Civil disobedience has a long tradition in our country. Indeed, highlighting injustice by engaging in nonviolent civil disobedience is an important part of the way this country was founded.

The ability of nonviolent civil disobedience and resulting criminal trials to strengthen democratic and constitutional values and institutions is well established. However, that ability is diminished when defendants are denied the benefit of jury deliberation on the key issues presented by the case — here, the  necessity or lack of necessity of the defendants’ actions as a means of galvanizing action to address the climate emergency.

Full brief is available here

The Civil Liberties Defense Center reports an appeal was filed last month in the Washington Court of Appeals challenging a Superior Court ruling that denied climate activists the ability to present a necessity defense to a jury.

Ken Ward, a climate activist from Corbett, Oregon, was charged with sabotage and burglary after an October 2016 protest in which he and four other activists temporarily blocked the flow of tar sands oil from Canada into the United States. Mr. Ward, a veteran environmentalist who for years pursued legal avenues to address climate change before turning to civil disobedience, testified during the two-day trial that his actions were intended to block the passage of harmful fuels into the United States and to inspire individuals and political leaders to act to avert catastrophic global warming.

Mr. Ward admitted that he entered a Kinder Morgan pipeline facility near Anacortes, Washington on October 11, 2016, and turned a valve to shut off the flow of tar sands oil from Canada. At the same time, other activists turned pipeline valves in Montana, North Dakota, and Minnesota.



Law Professors Submit Amicus Brief in Juliana Case

Image result for juliana plaintiffsThis week I joined as a signatory for the Law Professors’ Brief in Support of Plaintiffs’ Opposition to the Government’s Petition for Writ of Mandamus as a part of the Dignity Rights Project in the case of Juliana v. United States, On Petition For A Writ Of Mandamus In Case No. 6:15-cv-01517-TC-AA (D. Or.) (9th Circuit). The Dignity Rights Project is a new initiative that aims to support human dignity rights through public and professional education, advocacy, and support for high-impact lawyering.

The brief argues that it is not clear error for a federal court to consider a claim that due process under the U.S. Constitution can encompass governmental acts that cause or contribute to the deprivation of a liberty interest in a stable climate for current and future generations. You can access the full brief here.

More information about the brief is below:

Professors Jim May and Erin Daly submitted an Amicus Brief on behalf of more than 60 Law Professors in Support of Plaintiffs Kelsey Cascadia Rose Juliana and others, in atmospheric trust litigation brought by Our Childrens’ Trust against the Government for actions contributing to climate change. When the District Court found that the young plaintiffs had adequately pled (among other things) that the government had violated their substantive due process rights to liberty under Fifth Amendment, the Administration asked the 9th circuit for an extraordinary writ of mandamus on the ground that holding a trial would violate separation of powers. The brief argues that the district court’s decision did not constitute “clear error” and that the decision below was consistent with a long line of Supreme Court cases on the due process clauses that recognize that liberty interests are not frozen in time but can adapt to new circumstances. It further argued that, neither the fact that a case raises new, nor important, nor complex issues of policy justifies withdrawing the claim from the jurisdiction of the federal courts. Finally, the brief argues that issuing a writ under these circumstances would allow the Defendants to avoid judicial oversight and ignore core federal judicial functions to determine the meaning of a constitutionally protected fundamental right.