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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Quill Winners Explore Visa Adjudications and Limits of Public Trust Doctrine

Congratulations to 3Ls Cain Oulahan and Gabe Johnson-Karp, the winners of this year’s Gold and Silver Quill Awards, respectively.  The Quill Awards recognize the top two student comments published in the Marquette Law Review.

Cain’s comment is “The American Dream Deferred: Family Separation and Immigrant Visa Adjudications at U.S. Consulates Abroad.”  He explores the tension between the general preference in American law in favor of keeping families together and some specific requirements of immigration law that can break families apart for many years while a parent or spouse seeks to obtain a visa from an American consulate abroad.  As Cain puts its,

This problem arose with the creation by Congress in 1996 of what are known as the unlawful presence bars to admission.  After more than ten years since the passage of the unlawful presence bars, it is now appropriate to look closely at their impact and examine whether they constitute sound public policy. This Comment argues that they do not. This Comment explains how the system puts families through unnecessary and unjustifiable hardship by imposing a punishment that is disproportionate to the seriousness of the immigration violation. This Comment points to the lack of evidence that the unlawful presence bars significantly deter illegal immigration, and the fact that they tear families apart or force them to move abroad. For these reasons, this Comment recommends that Congress make sensible changes that will promote family unity while imposing penalties that are more proportionate to the seriousness of the immigration violation.

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