Local Food Systems and the Reawakening of Republicanism

This post is a summary of a full-length piece that the author is currently working on with Marquette Law School Professor Chad Oldfather.  The ideas expressed in this post represent a work in progress, and portions of the argument are likely to undergo substantial revisions before the final piece is completed.  Notwithstanding the collaboration with Professor Oldfather, any errors in this piece, either substantive or grammatical, are solely the author’s.

Until recently, the Supreme Court’s Dormant Commerce Clause doctrine has been applied to invalidate states’ attempts to implement legislation that discriminates against out-of-state interests, on the theory that Congress’s affirmative powers under the Commerce Clause necessarily imply a limit on states’ abilities to enact laws that would affect interstate commerce.  Recently, the Court has pulled back slightly from its formerly aggressive Dormant Commerce Clause jurisprudence, and there has been a revitalization of federalist principles by which the Court has sought to recognize greater powers in the states to direct local governmental activities.  This recent trend has found specific support in a number of the Court’s jurisprudential developments, including its broad interpretation of the Eleventh Amendment and its attempts at narrowing federal powers under the Commerce Clause.  However, in light of many of the other developments in federal-state relations, a clearer, more textually defensible basis for a reinvigoration of federalist principles may be found in the Republican Guarantee Clause of Article IV.

This theory is based on the idea that, the Constitution’s guarantee of republicanism provides substantive protections of the rights of the people, as well as the states, to enact legislation intended to further legitimate local interests, regardless of the alleged effect on interstate commerce.  Thus, where Congress has not enacted contrary preemptive legislation, the federal courts should refrain from imposing judicial constraints on the peoples’ ability to protect themselves as they elect to do so through the representative process. 

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Whose Right Is It, Anyway?

Although the Supreme Court has yet to release an opinion in American Electric Power v. Connecticut (previously discussed here), many commentators approaching the case from divergent points of view believe that the Court will likely reject the common law public nuisance cause of action, which is based on the power companies’ creation and release of substantial amounts of greenhouse gases that have contributed to global warming.  Aside from the jurisdictional and substantive issues that the AEP case raises directly, the issue lurking under the surface in that case, and made explicit in at least two other international cases, is the extent to which claims alleging environmental damage should be adjudicated on the basis of rights entirely separate from those which humans may assert for the benefit of individual human interests.  Stated differently, the problem of redressing harms caused by our overconsumption of fossil fuels and various other environmental harms raises what I believe to be two extremely provocative questions, neither of which will be answered here, but which provide a starting point for more effectively and honestly addressing issues of environmental harms.  First, how does a society decide to whom/what rights will be granted, and second, can a system of human laws accurately and effectively provide rights to nonhuman natural systems?

As an initial matter, perhaps notions of “granting” or “providing” rights already obfuscate a fundamental question; that is, is it honest to say that any human can actually grant rights, or are humans solely in a position to deny fulfillment of rights that exist inherently for the benefit of all beings? 

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Greenhouse Gases, and Other Hot Air

In American Electric Power Co. v. Connecticut, the Supreme Court is faced with the next, inevitable step in a line of climate change litigation including, most notably, Massachusetts v. EPA in 2007.  The case includes, as did Massachusetts, a jurisdictional question of whether the plaintiff states and land trusts have standing, either under Article III or under the “prudential” principles of standing.  Perhaps of broader interest, however, is the substantive question facing the Court, which is whether, in light of the powers vested in the Environmental Protection Agency under the Clean Air Act, a federal common law public nuisance claim is the proper course by which to seek redress for the rise in global temperatures to which the defendants are alleged to be substantial contributors.

The power companies’ and the government’s positions in this case are mostly aligned, in that both seek to have the complaint dismissed, although on slightly different jurisdictional grounds. 

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