Jeff Thaler’s and Jim May’s blog posts about our recent ACOEL delegation visit to Haiti captured the vibrant spirit of Haiti’s legal community and its enthusiasm to build new programs in environmental law. Haiti offered a different insight as well: dire environmental conditions have spurred strikingly innovative and creative legal thinking. In one sense, Haiti’s challenges are a frontier that can test and forge new environmental laws and concepts.
After our delegation visit finished, my wife and I visited an abandoned United Nations outpost on a dirt road over an hour north from Port-Au-Prince. Hidden behind encroaching trees and weeds, a blue-trimmed UN guard tower watched over empty concrete foundations and open gates behind a decaying chain-link fence and tangled razor wire.
This fading post is a flashpoint in history. In 2013, sewage from the UN outpost’s battalion of Nepalese peacekeepers contaminated a nearby tributary and led to an outbreak of cholera that has killed over 9,000 people and sickened over 800,000 so far. The United Nations has rejected petitions that it should fund and establish a comprehensive sanitation, medical treatment and potable water program to halt the epidemic. In response, a group of Haitians and Haitian-Americans filed a class action lawsuit in the federal Southern District of New York court for damages and injunctive relief.
The United Nations stoutly rejected any argument that the U.S. court has jurisdiction over its operations. The United States vigorously urged the trial court to dismiss the lawsuit, and the court agreed on January 9, 2015 by denying jurisdiction. The district court found that the UN had not expressly waived its immunity under the Convention on Privileges and Immunities of the United Nations of 1946 (despite the UN’s failure to satisfy other important obligations under the Convention).
The case took a dramatic turn when the Second Circuit decided to hold oral argument on the Haitians’ appeal of the trial court’s dismissal. In a packed courthouse in Manhattan on March 1, 2016, the three-judge panel seemed sympathetic to the claims of Haitians who will likely have no possible relief or compensation if the court upholds the United States’ assertions of strong immunity on behalf of the UN. The court will probably issue its decision in the next few months.
If the court finds that the UN lacks absolute immunity for environmental or health damages caused by its actions, the decision could have a sweeping impact on the UN’s liability for other humanitarian actions that cause environmental harm. The UN plays a central role in multinational efforts to fight climate change, protect oceanic resources, and preserve endangered species and ecosystems, and the spectre of liability could hamper its activities. Depending on the scope of the court’s ruling, this case might also affect the liability of other multinational organizations whose actions to protect the environment unexpectedly injure human health or natural resources.
Haiti’s enormous environmental and public health challenges sparked this important case, and the legal creativity guiding the lawsuit arose there as well. Our delegation had the opportunity to meet Me. Mario Joseph, who directs the L'Association Haïtienne de Droit de l'Environnement which filed the lawsuit (along with several other groups). As lead counsel he guides the team of attorneys handling the case, and he strongly believes that legal creativity and ingenuity can overcome the procedural and jurisdictional barriers to reach a just environmental outcome.
If it desires, ACOEL can help monitor and, where appropriate, contribute to the development of these types of innovative environmental legal approaches in Haiti. The Second Circuit’s ultimate decision may offer an opportunity to discuss these issues with the Haitian environmental bar and with other lawyers who want to help build Haiti’s environmental laws and enforcement options.
In the meantime, change still comes slowly. When we visited the abandoned outpost, families had moved into the vacant buildings and children were bathing in a nearby stream – directly by the unused outfall pipe where the UN peacekeepers had previously discharged their sewage wastes. Whatever decisions come from U.S. courts, Haiti will have a pressing need for innovative and effective environmental laws for many years ahead.
John Roberts’ first opinion as a judge on the D.C. Circuit was a dissent from denial of rehearing en banc in an Endangered Species Act case. His opinion famously referred to the endangered species at issue as “a hapless toad that, for reasons of its own, lives its entire life in California[.]” Two years later critics pointed to this flippant reference to species extinction as a reason to oppose his nomination to be Chief Justice.
On October 1st the Supreme Court will begin a new term. The first case scheduled for oral argument is another ESA case involving another amphibian, the dusky gopher frog. In this case, private landowners challenge the government’s designation of 1,500 acres of pine forest not occupied by the frog as critical habitat essential for survival of the species.
The ESA clearly authorizes the designation of private land as critical habitat; and it expressly authorizes the designation of land not occupied by an endangered species if the Secretary finds the area to be essential for the species’ survival. The fight over habitat for the dusky gopher frog in the Supreme Court involves two relatively straightforward issues of statutory construction:
Whether land not occupied by an endangered species may be designated as critical habitat if the land currently lacks one or more of the physical or biological features essential to conservation of the species; and
Whether the agency’s decision not to exercise its discretionary authority to exclude petitioner’s land from critical habitat on grounds of economic impact is committed to agency discretion.
A district judge appointed by President Reagan and generally regarded as staunchly conservative, upheld the critical habitat designation, but did so with clear distaste for the result:
“The Court has little doubt that what the government has done is remarkably intrusive and has all the hallmarks of government insensitivity to private property. The troubling question is whether the law authorizes such action and whether the government has acted within the law. Reluctantly, the Court answers yes to both questions.”
The Fifth Circuit, widely regarded as one of the most conservative federal circuits, affirmed the district court, albeit with one judge on the panel dissenting and six judges dissenting from denial of rehearing en banc.
The Supreme Court’s decision to hear the case does not bode well for the dusky gopher frog. As the saying goes, “The Supreme Court does not grant cert. to affirm.” The broad picture of this case is familiar. A small, seemingly insignificant creature is allegedly blocking the common sense path of economic development and prosperity. The arguments challenging the habitat designation are long on drama regarding supposed economic impact, despite the fact the habitat designation only affects government actions, and in the absence of a federal nexus, does nothing to change the landowners’ private use of their property. And, the arguments against the habitat designation are very short on concern over the survival of what the landowners dub as the “phantom frog.”
So far, the sturdy structure of the ESA has generally withstood this type of full frontal assault, from the snail darter to the Delhi Sands flower-loving fly, to the hapless toad, and now to the dusky gopher frog. If the dusky gopher frog wins, it will not be the first time the Supreme Court took an ESA case that seemed at first blush to be an easy reversal only to find itself ultimately affirming a decision protecting the species. That was exactly what happened with the snail darter in TVA v. Hill. And, as was the case in TVA v. Hill, a victory for the dusky gopher frog in the Supreme Court will undoubtedly fuel arguments that Congress should amend the ESA.
Brett Kavanaugh’s recent nomination to succeed Justice Kennedy has prompted speculation that he would vote against the dusky gopher frog based on his opinion in the D.C. Circuit vacating the critical habitat designation for the San Diego fairy brine shrimp and his critical view of Chevron deference. Such speculation may be overstated. It is not clear the Senate will vote on Judge Kavanaugh’s confirmation in time for him to participate in the decision regarding the dusky gopher frog. And, in any event, the record supporting the habitat designation for the frog is far more robust than that involving the fairy brine shrimp. In this case, conservative principles supporting strict adherence to statutory language may carry the day for the dusky gopher frog.
Far far away, behind the word mountains, far from the countries Vokalia and Consonantia, there live the blind texts. Separated they live in Bookmarksgrove right at the coast of the Semantics, a large language ocean. A small river named Duden flows by their place and supplies it with the necessary regelialia. It is a paradisematic country, in which roasted parts of sentences.
One day however a small line of blind text by the name of Lorem Ipsum decided to leave for the far World of Grammar. The Big Oxmox advised her not to do so.
A wonderful serenity has taken possession of my entire soul, like these sweet mornings of spring which I enjoy with my whole heart. I am alone, and feel the charm of existence in this spot, which was created for the bliss of souls like mine. I am so happy, my dear friend, so absorbed in the exquisite.
I should be incapable of drawing a single stroke at the present moment; and yet I feel that I never was a greater artist than now. When, while the lovely valley teems with vapour around me, and the meridian sun strikes the upper surface of the impenetrable foliage of my trees, and but a few stray gleams steal into the inner sanctuary, I throw myself down among the tall grass by the trickling stream; and, as I lie close to the earth, a thousand unknown plants are noticed by me.
When I hear the buzz of the little world among the stalks, and grow familiar with the countless lorem ipsum dolor indescribable forms of the insects and flies, then I feel the presence of the Almighty, who formed us in his own image, and the breath. One morning, when Gregor Samsa woke from troubled dreams, he found himself transformed in his bed into a horrible vermin. He lay on his armour-like back.
In a free hour, when our power of choice is untrammelled and when nothing prevents our being able to do what we like best, every pleasure is to be welcomed and every pain avoided. But in certain circumstances and owing to the claims of duty or the obligations of business it will frequently occur that pleasures have to be repudiated and annoyances accepted. The wise man therefore always holds in these matters.
If several languages coalesce, the grammar of the resulting language is more simple and regular than that of the individual. The new common language will be more simple and regular than the existing European.
It showed a lady fitted out with a fur hat and fur boa who sat upright, raising a heavy fur muff that covered the whole of her lower arm towards the viewer. Gregor then turned to look out the window at the dull weather. Maecenas nec odio et ante tincidunt.
The bedding was hardly able to cover it and seemed ready to slide off any moment. His many legs, pitifully thin compared with the size of the rest of him, waved about helplessly as he looked. “What’s happened to me?” he thought. It wasn’t a dream. His room, a proper human room although a little too small, lay peacefully between its four familiar walls. A collection of textile samples lay spread out on the table – Samsa was a travelling salesman – and above it there hung a picture that he had recently cut out of an illustrated magazine and housed. Everyone realizes why a new common language would be desirable: one could refuse to pay expensive translators.
The European languages are members of the same family. Their separate existence is a myth. For science, music, sport, etc, Europe uses the same vocabulary. The languages only differ in their grammar, their pronunciation and their most common words. Everyone realizes why a new common language..
It wasn’t a dream. His room, a proper human room although a little too small, lay peacefully between its four familiar walls. A collection of textile samples lay spread out on the table – Samsa was a travelling salesman – and above it there hung a picture that he had recently cut out of an illustrated magazine and housed in a nice, gilded frame. It showed a lady fitted out with a fur hat and fur boa who sat upright, raising a heavy fur muff that covered the whole of her lower arm towards the viewer. Gregor then turned to look out the window at the dull weather. She packed her seven versalia, put her initial into the belt and made herself on the way.
One morning, when Gregor Samsa woke from troubled dreams, he found himself transformed in his bed into a horrible vermin. He lay on his armour-like back, and if he lifted his head a little he could see his brown belly, slightly domed and divided by arches into stiff sections.