March 26, 2020

Supreme Court of Canada recognizes corporate liability for human rights violations

[Cross-posted from Just Security]

By William S. Dodge

Late last month, in Nevsun Resources Ltd. v. Araya, the Supreme Court of Canada held that Canadian corporations may be sued in tort for violations of international human rights law that occur abroad. The Canadian Supreme Court thus resolved under Canadian law an issue that the U.S. Supreme Court has struggled with unsuccessfully since 2012. Nevsun is part of a growing trend of court decisions in other countries recognizing corporate liability under various theories. These decisions illustrate a basic point that is too often overlooked in the debate over corporate liability — that international law leaves it to each domestic legal system to decide how to enforce norms of international human rights.

Nevsun Resources Ltd. is a Canadian company that owns a mine in Eritrea. The plaintiffs suing Nevsun claimed that they were conscripted by the Eritrean military into a regime of forced labor at the mine and subjected to cruel, inhuman, and degrading treatment. They brought suit in British Columbia seeking damages for breaches of customary international law prohibitions against forced labor, slavery, cruel, inhuman, or degrading treatment, and crimes against humanity. They also sought damages for domestic torts such as battery and unlawful confinement. Nevsun moved to strike the pleadings based on the act of state doctrine and moved to strike the customary international law claims on the ground that it was plain and obvious that such claims had no reasonable prospect of success.

This post describes the central holdings and contentious questions in Nevsun and compares the approach adopted by the Canadian Supreme Court with approaches to corporate human rights liability in the United States and other countries. While the Nevsun decision should be viewed as part of a trend outside the United States toward the recognition of corporate liability for human rights violations, the approach adopted in Nevsun is just one of the roads that domestic legal systems might take.

Corporate Liability for Human Rights Violations

By a vote of five to four, the Canadian Supreme Court held in Nevsun that claims for violations of international human rights norms abroad may be brought in Canadian courts. The majority based its decision on the doctrine of “adoption” (called “incorporation” in English law), which the Court traced to William Blackstone’s famous Commentaries of the eighteenth century. (para. 87). The Court explained:

[A]s a result of the doctrine of adoption, norms of customary international law — those that satisfy the twin requirements of general practice and opinio juris — are fully integrated into, and form part of, Canadian domestic common law, absent conflicting law … . Legislatures are of course free to change or override them, but like all common law, no legislative action is required to give them effect. (para. 94).

The Court further held that because customary international law is part of Canadian law, its content need not be proved as a fact and is appropriate for judicial notice. (para. 98). The norms alleged to have been breached in this case — those prohibiting crimes against humanity, slavery, forced labor, and cruel, inhuman, and degrading treatment — were all found to be well established as jus cogens in customary international law. (paras. 99-103).

The majority made short work of the defendant’s argument that norms of international human rights law do not apply to corporations. It noted that some norms of customary international law “prohibit conduct regardless of whether the perpetrator is a state” (para. 105) and that norms applicable to private actors could cover corporations. (para. 111). The majority therefore concluded: “it is not ‘plain and obvious’ that corporations today enjoy a blanket exclusion under customary international law from direct liability for violation of ‘obligatory, definable, and universal norms of international law,’ or indirect liability for their involvement in … ‘complicity offenses.’” (para. 113).

Invoking the general principle that there must be a remedy where there is a right (para. 120), the majority held that courts could develop “a civil remedy in domestic law for corporate violations of the customary international law norms adopted in Canadian law.” (para. 122). Treating human rights violations only as ordinary domestic torts like battery and unlawful confinement would not be sufficient “to adequately address the heinous nature of the harm caused by this conduct.” (para. 125). The Court left it to the trial judge to determine in the first instance whether to recognize new domestic torts like slavery based on customary international law or to apply customary international law directly to the defendant’s conduct, but the majority expressed a clear preference for the direct application of international law as more consistent with the doctrine of adoption and as more appropriate to the gravity of the offenses. (paras. 127-129).

Two dissenting opinions took issue with the majority on a number of points relevant to corporate liability. Both opinions asserted that customary international law does not recognize corporate liability for human rights violations (paras. 191, 269). Quoting the U.S. Court of Appeals decision in Khulumani, Justices Brown and Rowe went on to note that international law “leaves to each nation the task of defining the remedies that are available for international law violations.” (para. 197). In their view, criminal law was better suited to remedy violations of international human rights norms. (paras. 208, 218). They noted that Parliament could chose to create a civil cause of action for violations of international human rights, but for the Supreme Court to do so as a matter of common law broke “the unwritten constitutional principle of legislative supremacy” (para. 225). Finally, with respect to the possibility that the trial court might recognize new domestic torts rather than applying customary international law directly, Justices Brown and Rowe questioned whether Canadian law properly applied to conduct in Eritrea, because under Canadian conflict of laws rules “[i]t is the law of the place of the tort that will, normally, govern.” (para. 252).

The majority opinion in Nevsun recognizing corporate liability for human rights violations resolves as a matter of Canadian law a question that the U.S. Supreme Court has repeatedly failed to answer as a matter of U.S. law. As I have previously recounted on Just Security, the U.S. Supreme Court recognized an implied cause of action under the Alien Tort Statute (ATS) for well-established norms of human rights law in Sosa (2004). The Second Circuit subsequently held in Kiobel (2010) that corporate liability for human rights violations was not well-established enough to meet the Sosa standard. The Supreme Court granted certiorari to decide the corporate liability question, but instead disposed of the case by limiting the ATS cause of action in Kiobel (2013) to claims that “touch and concern” the territory of the United States. The Court granted certiorari to decide the same question in Jesner (2018), but again avoided the question by limiting the ATS cause of action to U.S. corporations. The U.S. Supreme Court has been asked to take up the corporate liability question a third time in Nestle v. Doe, a case alleging that a U.S. corporation aided and abetted child slavery abroad. The Court has called for the views of the Solicitor General on whether certiorari should be granted.

As the Nevsun majority pointed out, the argument that customary international law itself does not recognize liability for human rights violations “misconceives modern international law.” (para. 105). Customary international law prohibits violations of fundamental human rights, but it does not provide the means of enforcing those norms. The means of enforcement are supplied by states, which may act either collectively through treaties or individually by creating criminal or civil liability in their own domestic laws. Therefore, Justices Brown and Rowe were correct to observe that international law leaves to each nation the task of defining remedies for international law violations. (para. 197).

But the two Justices failed to see how that observation undercuts their separate assertion that customary international law does not recognize corporate liability (para. 191). Because each nation is free to decide for itself what remedies to provide, a lack of consensus about remedies for human rights violations says nothing about the content of the customary international law norms. As the amicus brief of International Law Scholars in Jesner explained, to argue that customary international law does not recognize corporate liability because international criminal tribunals limit their jurisdiction to natural persons, or because many nations have not created civil remedies, is to mistake limits on enforcement mechanisms for limits on the norms themselves. The question the Second Circuit posed in Kiobel — whether there is a “norm of corporate liability under customary international law” — is a question that simply does not make sense.

The question that does make sense is whether particular norms of human right law apply to particular actors. But international law seems quite clear that human rights norms do apply to corporations. In Kiobel, the amicus brief filed by the Obama Administration noted (at pages 20-21) that the prohibitions against torture, genocide, and war crimes apply equally to natural persons and to corporations. In Jesner, the amicus brief filed by the Trump Administration took the same position (at pages 13-14). A separate amicus brief of the Yale Law School Center for Global Legal Challenges expanded the analysis to other customary international law norms, including the prohibitions against crimes against humanity, financing terrorism, extrajudicial killing, slavery, and piracy, concluding in each case that these norms apply to corporations. On the question whether human rights norms apply to corporations, the majority in Nevsun was clearly correct.

Whether the Supreme Court of Canada should have created a civil damages remedy for breaches of human rights norms under Canadian common law is a separate question. I have long been skeptical of the argument that court-created remedies for human right violations are inconsistent with legislative supremacy, because legislatures may of course alter those remedies.

The traditional way of addressing human rights violations like those alleged in Nevsun is through domestic tort law. But as Justices Brown and Rowe correctly pointed out, this raises the question of whether Canadian or Eritrean tort properly applies. A less traditional way of addressing human rights violations is to apply customary international law directly as the rule of decision, which is what U.S. courts have done in ATS cases. This approach avoids the choice of law question because international human rights law is equally applicable to conduct in every nation, but it may raise other questions of domestic law. In the United States, the decision to take the road “less travelled by” led to questions about the proper scope of an implied cause of action under the ATS that the U.S. Supreme Court has answered in an increasingly limited way. In Canada, the questions are likely to be different because Canada does not have an ATS and because the Canadian Supreme Court has authority over Canadian common law that the U.S. Supreme Court lacks with respect to U.S. common law. In deciding how to implement the decision in Nevsun, Canadian courts may learn from the U.S. experience, but they need not make the same decisions.

Act of State Doctrine

The Canadian Supreme Court also denied Nevsun’s motion to strike the pleadings under the act of state doctrine by a vote of seven to two. The Court criticized the act of state doctrine under English law as an “unwieldly collection of principles, limitations and exceptions.” (para. 29). Although Canadian common law has “grown from the same roots” as English law, the Supreme Court of Canada held that “the principles underlying the act of state doctrine have been completely subsumed” by conflict of laws doctrines and judicial restraint. (para. 44). The Court explained:

Our courts determine questions dealing with the enforcement of foreign laws according to ordinary private international law principles which generally call for deference, but allow for judicial discretion to decline to enforce foreign laws where such laws are contrary to public policy, including respect for international law.” (para. 45).

In sum, the Court concluded, “[t]he doctrine is not part of Canadian common law.” (para. 59).

Despite their disagreement with the majority concerning the plaintiffs’ customary international law claims, Justices Brown and Rowe concurred in the majority’s analysis of the act of state doctrine. (para. 135). Only Justices Côté and Moldaver would have held that the doctrine “bars the adjudication of civil actions which have their foundation in allegations that a foreign state has violated public international law.” (para. 272).

In the United States, the act of state doctrine has occasionally been raised as a defense against human right claims, but almost never successfully. U.S. courts have typically held that violations of jus cogens norms cannot be considered acts of state. It is also doubtful that most human rights cases fall within the narrowed scope of the U.S. act of state doctrine after Kirkpatrick. In Kirkpatrick, the U.S. Supreme Court unanimously held that the act of state doctrine applies only when a suit requires a court to declare invalid as a “rule of decision” the official act of a foreign country. Finding that a foreign government has violated customary international law is different from declining to apply foreign law as a rule of decision. I therefore disagree with Justice Côté’s invocation of Kirkpatrick in support of her position. (para. 308).

Because the act of state doctrine is a doctrine of international comity, not international law, each country is free to adopt whatever version of the doctrine it sees fit. As I have previously explained, the U.K. act of state doctrine differs from that of the United States. Canada could have adopted the U.K. version, the U.S. version, the version urged by Justice Côté, or no version at all. Nevsun’s holding that the act of state doctrine has been subsumed by other conflict of laws rules is commendable, and perhaps particularly worthy of consideration in the United States, where the doctrine persists as an odd federal intrusion into the authority of U.S. states over conflicts rules.

Corporate Liability Outside North America

Nevsun is part of a growing trend of decisions recognizing the possibility of corporate liability for human rights violations abroad. Last year, the U.K. Supreme Court, in Vedanta Resources PLC v. Lungowe, allowed claims to go forward against a U.K. corporation and its Zambian subsidiary seeking damages for toxic emissions from a mine in Zambia. The Court observed that the parent company may have intervened sufficiently in the management of the mine to have assumed a duty of care under Zambian common law or fault-based liability under Zambian legislation. U.K. courts had jurisdiction over the parent company because it was domiciled in the U.K. and over the subsidiary because the claims against it were closely connected to those against the parent and because there was a real risk that substantial justice could not be obtained in Zambian courts. Although Vedanta involves environmental claims, it is clear that the same theories of jurisdiction and liability could apply to human rights claims against corporations.

A few weeks later, a Dutch district court in The Hague held, in Kiobel v. Royal Dutch Shell, that it had jurisdiction over claims by widows of activists executed in Nigeria alleging that Dutch and U.K. parent companies and their Nigerian subsidiary were accessories to the unlawful arrests, detentions, and executions of their husbands. The suit involved the same plaintiffs as the U.S. Kiobel case, but the claims before the Dutch court alleged violations of fundamental rights under Nigerian law, rather than violations of customary international law. Having recognized its jurisdiction to hear the claims, the Dutch court rejected most of them for lack of evidence, permitting further discovery only on the claim that the Nigerian subsidiary had bribed witnesses.

In sum, as the U.S. Supreme Court has repeatedly limited the scope of the ATS cause of action against corporate defendants, other countries have begun to recognize the possibility of corporate liability for human rights violations. It is noteworthy that the Canadian, Dutch, and U.K. cases all involved claims against parent companies domiciled in those countries, companies over which personal jurisdiction was clearly proper. In the Dutch and U.K. cases, liability was premised on the domestic law of the country where the alleged torts occurred. In Nevsun, by contrast, the Canadian Supreme Court suggested that the trial court should apply customary international law directly, similar to what U.S. courts have done under the ATS.

As noted above, it seems clear that international human rights norms apply to corporations just as they apply to natural persons. But it is up to each nation to decide whether and how to provide redress for corporate violations of those norms in its own legal system. The road that the Canadian Supreme Court chose to take in Nevsun is a good one. But it is not the only one.


March 19, 2020

What Trump Can Teach Us About Con Law, ep. 39: 'Quarantine Powers'

By Elizabeth Joh

[Cross-posted from]

During a health crisis, what is the government allowed to do? As the novel coronavirus spreads across America, there have been closures and lockdowns across the country. In this episode, we look to history to understand who has the power to quarantine, and how the office of the president can be used to slow down a pandemic. Listen to episode 39 of the '"What Trump Can Teach Us About Con Law" podcast 


March 19, 2020

Yes, states and local governments can close private businesses and restrict your movement

[Cross-posted from Politico]

By Elizabeth Joh

Can the state tell your favorite local restaurant to close, or tell you that you must stay at home unless it’s absolutely necessary to leave, because of an emergency? The governors of New York, New Jersey and Connecticut have closed down bars, movie theaters and dine-in restaurants. Six counties in the San Francisco Bay Area have imposed a shelter-in-place order that allows people to leave their homes only for essential activities.

In response to these drastic measures intended to slow down the spread of coronavirus, there are plenty of voices on social media, and even some in government, denouncing such measures as unprecedented, un-American and unconstitutional. Most of us have never imagined such impositions outside of a situation of armed conflict, but allegations that those measures in the current circumstances are unlawful are wrong. And this is a case where legal misinformation can exacerbate a public health crisis.

States—and their cities and counties by extension—possess what has long been known as a “police power” to govern for the health, welfare and safety of their citizens. This broad authority, which can be traced to English common law and is reserved to the states by the 10th Amendment, is far from radical; it justifies why states can regulate at all.

The police power of the states has been invoked on multiple occasions by the Supreme Court, often in contrast to the limited powers of the federal government—for example, in Chief Justice John Roberts’ opinion in the 2012 Obamacare case. This power also has been recognized in the context of public health for decades. In a 1905 Supreme Court case that upheld mandatory smallpox vaccinations, the court observed that “upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

What does this mean for the drastic coronavirus responses we’re seeing across the country? State and local governments can indeed decide to force even unwilling businesses to shut down, require people to stay mostly at home, impose curfews and even threaten noncompliance with arrest if necessary. (Thankfully, with COVID-19, we have so far seen mostly peaceful, even if begrudging, compliance to “flatten the curve” so that our health care workers and hospitals are not overwhelmed.) But, you might ask, don’t I have individual rights, even in a pandemic? Of course you do. We possess constitutionally protected rights to assemble and travel, for instance. State and local governments must be careful to make sure that measures they impose to protect people are not overly broad and are taken only for justifiably important reasons.

Our legal history is filled with cases where government has had insufficiently important reasons to justify restrictive measures, or where the measures themselves are overly broad. Or even cases where government restrictions turn out to have been implemented for impermissibly discriminatory reasons, such as when the city of San Francisco targeted only its Chinese residents in a bubonic plague outbreak in 1900. Not all exercises of the police power will withstand constitutional scrutiny.

But the very existence of this framework—the balance between the need to protect the public and individual rights—assumes that there will be times when there are truly compelling emergencies justifying severe measures. A global pandemic that spreads even among those who are asymptomatic and could exceed the capacity of the American health care system would appear to be just such a compelling situation.

When prominent voices tell the public that these drastic measures are somehow inherently unlawful or obviously unconstitutional, they detract from the social solidarity we need right now. People who are misled about what the government may do, and confused about its established powers, might not take heed of the necessary measures to protect their own health and that of their communities.

At some point in the future, we could see a coronavirus response that has gone on too long or is too broad to justify its burdens. Or we might see instances of people who were denied civil liberties without real justification. Even now, you might feel that these measures are too little, too late, or that they are drastic, and burdensome. But if we are facing a window of opportunity that is rapidly closing, to say that the states cannot try to use their most basic authority to save lives is not only wrong—it might be deadly.


March 16, 2020

New science or just spin: science charade in the Delta

[Cross-posted from CaliforniaWaterBlog]

By Karrigan Börk, Andrew L. Rypel and Peter Moyle

Science-based decision making is key to improved conservation management and a legal mandate in the US Endangered Species Act.  Thus supporters of federal efforts to increase water exports from the Central Valley Project (CVP) and State Water Project (SWP) have claimed that these efforts are based on new science. Yet unpacking those claims requires some legal analysis, a basic understanding of science, and more than a little nuanced reading.

First, some background. For a review of federal efforts to increase Delta exports, and the recent biological opinions (BiOps) released by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) approving those efforts, please see this earlier blog post. California has elected to sue the federal government over the recent BiOps, and, at the same time, California is proceeding with its own analysis of plans to change the operation of the SWP. Finally, the State Water Resources Control Board (SWRCB) is updating the state’s Bay Delta Plan, which addresses water quality and quantity in the Delta. The SWRCB has adopted a new plan for the San Joaquin River watershed, and is in the process of adopting a plan for the Sacramento River watershed. However, adoption and implementation efforts appear to be on hold while the Newsom Administration attempts to negotiate voluntary agreements with water users and environmental groups. The voluntary agreements might ultimately replace (or be integrated into) a comprehensive Bay Delta Plan update. There are many moving parts, but one thing tying all these efforts together is the proponents’ claim that their approach is mandated by the best science.

Supporters of the federal plan in particular seek to wrap the effort in the mantle of science. On the media call for the roll out of the new BiOps, Paul Souza, Regional Director for US Fish and Wildlife Service cited “tremendous new science now that we didn’t have a decade ago.” On the same call, Ernest Conant, Regional Director of the Mid-Pacific Region of the Bureau of Reclamation, argued that the new approach was “infused with new scientific information.” U.S. Rep. Kevin McCarthy, R-Bakersfield, told Fox News “this president has worked greatly using science, not based on politics but on science, to allow to have more of that water stay with the Californians and America.” Finally, during his remarks to Rural Stakeholders on California Water Accessibility in Bakersfield, CA, President Trump argued that the old plan was based on “old science, obsolete studies, and overbearing regulations that had not been updated in many, many years, and sometimes for decades,” promising that the new federal plans “use the latest science and most advanced technology.” The science drumbeat has played a central role in this media blitz.

The rationale for this approach is easy to understand. Policy makers frequently cloak political decisions in a scientific framework; in policy circles, this is known as the science charade (Adler 2017; Wagner 1995). The science charade lets political leaders avoid responsibility for unpopular decisions – they’re just following the science, not making hard decisions based on their own ethical considerations (Doremus 1997). The science charade also lets decision makers minimize public input on policy decisions – why should the uninformed public have a say in technical decisions (Adler 2017)? Scientists themselves sometimes embrace this approach because it affords them a measure of control over policy decisions (Adler 2017). The courts only reinforce the science charade – they are very reticent to overturn federal agency decisions that claim to be based on science, rather than policy preferences (Clark 2009).

This approach is not limited to supporters of the federal plans; everyone claims that science is on their side. But the current federal roll out is uniquely focused on claiming that new science justifies increased water exports from the Delta. Moreover, NMFS brought in new scientists to rewrite their draft BiOp last summer, after the first draft concluded the federal pumping plan was likely to drive species to extinction. This suggests some skepticism about NMFS’s claims to rely on “new science.”

Natural resource sciences are unique compared to many fields (e.g., physics). For example, the best natural resource science normally involves understanding not only the organisms of interest, but also the dynamics of their complicated ecosystems, which in turn are typically controlled by people. Indeed, most scientists are trained to view natural resource management quite broadly, e.g., as the intersection of organisms, habitat and people (Nielson 1999). Each aspect is critical and affects the other two, and managing with all three in mind presents opportunities for enhancing natural resources overall. However, management frequently goes awry when a disproportionate focus is placed on only one aspect of the problem (Sass et al. 2017). The science charade preys on the misconception that these spheres should be disconnected, suggesting we can somehow separate organisms and ecosystems from the decisions people make.

The US Endangered Species Act explicitly requires that federal decisions consider the best available science. For example, 16 U.S. Code § 1536(a)(2) requires that “each agency shall use the best scientific and commercial data available” when preparing biological opinions under the Act.  This is, objectively, the right approach. Bad science leads to bad decisions. But this mandate also encourages the cloaking of policy preferences as scientific mandates (Adler 2017). Consider three aspects of the current political struggle over Delta water.

First, the roll out for the new biological opinions treats existing science as old and obsolete, claiming it is no longer the best available science. But science is not milk. It doesn’t just go bad. New science can illuminate, and the state of the art sometimes changes over time, but older science is not inherently wrong or less valuable. Science grows by building on existing ideas and knowledge, not by rejecting it outright. As Isaac Newton famously wrote, “If I have seen a little further, it is by standing on the shoulders of giants.” For example, the 2010 report “Development of Flow Criteria for the Sacramento-San Joaquin Delta Ecosystem” found that flow standards aimed solely at protecting fish populations in the Delta would require 75% of the unimpaired flow in the Sacramento and San Joaquin watersheds. Certainly, other water needs mean that the Delta will not get these flows, but simply dismissing this report as old science is inherently flawed.

Second, to the extent that new science requires new approaches in the Delta, existing new science indicates that restoration of the Delta will require more water to be left in the Delta, not less. The 2017 Scientific Basis Report for the SWRCB Bay Delta Plan effort noted that additional flows into the Delta, and decreased exports of water from the Delta, always benefits native biota, provided that temperature, timing, and quality targets were met. Zero new science shows that native fishes and most other native organisms in the Delta can survive on less water.  Keep in mind that the Delta is one of the best studied estuarine ecosystems in the world, with continuous major research producing new and improved understanding of the ecosystem (i.e. science).

Third and finally, the new science claims in the biological opinions seem to focus on emerging approaches that might reconcile water use with ecosystem needs based on real time monitoring and habitat improvements. But immediate claims that this new science allows greater water exports from the Delta hides key policy decisions on acceptable extinction risks.

For example, the real time “Enhanced Delta Smelt Monitoring (EDSM)” program is supposed to allow managers to reduce pumping from the Delta when monitoring detects smelt in the area around the pumps, thus keeping smelt from being sucked into the pumps. But smelt populations are currently too low to detect, and a January 2018 independent scientific review concluded, “it is difficult to see how the EDSM currently can be used to inform water operations in near real time.” The review encouraged FWS to attempt to validate this approach, but the BiOps offer no such validation. Using this approach without showing that it works places all risk of failure on the Delta Smelt, and ultimately risks their extinction. This is a policy decision, not new science standing alone.

Similarly, the BiOps indicate habitat improvements will reduce the need for water in the Delta. As prior blog posts here have noted, better habitat improves salmon growth, which may improve salmon survivorship. Better habitat also may allow managers to reconcile human uses of the landscape with ecosystem needs. Could this approach allow managers to achieve ecosystem and species recovery targets with less water? It seems unlikely, but the BiOps depend on habitat improvement to make up for increased water exports. Even if this approach could work, it would require that suitable habitat improvements be in place before water exports increase. But most improvements mandated in the last round of BiOps are merely proposed, not complete, and most ongoing improvement projects remain unfinished and untested.

The increased pumping anticipated in the BiOps would begin well before any improvements in species numbers would result from habitat improvement. This approach assumes that additional unspecified habitat will compensate for decreased water in the short term. Success would depend entirely on protected species being lucky enough to persist under current conditions but with less water. Suggesting that the decisions expressed in the BiOps are based solely on science masks this central policy calculus, which is never explicitly revealed. However, the benefits of such an approach to Delta water users are well-documented: there is less political accountability, less public input, and more deferential court review.

What’s the solution? There’s no magic bullet to stop the science charade, but using properly vetted (i.e., peer-reviewed) science literature and independent science reviews of new rulemakings can go a long way toward ensuring true science-based policies. California’s Delta Science Program, for example, relies on an independent review panel to provide objective feedback to policymakers. Adaptive management approaches that would increase ecosystem protections if new approaches fail would better allocate risk in uncertain situations. The science community itself must also watch and safeguard how policy makers use its work. It is not enough to simply conduct and publish scientific articles – not anymore. And courts asked to review decisions that touch on science must distinguish between scientific conclusions and policy decisions that are cloaked as science.

In the near term, California agencies may soon face this challenge head on. First, as noted above, the California Department of Water Resources (DWR) is preparing an environmental analysis of its own plans to change the operation of the Delta pumps. DWR has proposed a plan that embraces some of the same approaches to science used by the federal plan. Comments from the California Department of Fish and Wildlife (CDFW) and the SWRCB to DWR have raised these concerns, but it is not yet clear how the DWR will respond and whether CDFW will ultimately grant DWR the permits it needs to proceed on the terms DWR has proposed.

Second, the SWRCB will have to approve any voluntary agreements that are developed for the Delta. The Newsom Administration is pushing hard for a suite of voluntary agreements to benefit the Delta ecosystem while also meeting water user needs. The benefits of successful voluntary agreements are tantalizing: an infusion of private funding, improved habitat, improved ecosystems, and continued availability of needed water, all done faster and with fewer lawsuits. But any agreements must ultimately comply with state environmental law, and the SWRCB will make the first determination as to whether the science supports whatever voluntary agreements the Administration can develop. The voluntary agreements appear to rely on the same habitat-for-water hopes that undergird the BiOps, and the agreements would lock in the water withdrawals before regulators know if the habitat improvements actually work. A safer approach would be to improve the habitat, and then conduct scientific studies to see if listed species actually benefit before withdrawing additional water. Failing that, the agreements should at least provide for water use reductions as a fail safe if species declines continue despite the new habitats. The best available science recognizes that nature is sometimes unpredictable and science is sometimes misread or just wrong. It requires contingency plans.

If the Administration succeeds in developing a set of voluntary agreements, and as DWR concludes its environmental analysis, look for the media blitz to emphasize that science supports their approach. It will fall to the state regulatory agencies to determine whether they are truly supported by science, or merely by a science charade. 

Further Reading

Jonathan H. Adler, The Science Charade in Species Conservation, 24 Sup. Ct. Econ. Rev. 109, 116 (2017).

Sara. A. Clark, Taking a Hard Look at Agency Science: Can the Courts Ever Succeed?, 36 Ecol.L.Q., 317 (2009).

Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn’t Always Better Policy, 75 Wash. U. L.Q. 1029, 1038 (1997)

Carson Jeffres, Frolicking fat floodplain fish feeding furiouslyJune 2, 2011.

Peter Moyle, Jeff Opperman, Amber Manfree, Eric Larson, and Joan Florshiem, Floodplains in California’s Future, Sept. 10, 2017.

Peter Moyle, Karrigan Börk, John Durand, Tien-Chieh Hung, and Andrew Rypel, Futures for Delta Smelt, Dec. 15, 2019.

Larry A. Nielsen, History of Inland Fisheries Management in North America in Inland Fisheries Management, 2nd Ed. 3 (Christopher C. Kohler and Wayne A. Hubert eds., 1999).

Greg G. Sass, Andrew L. Rypel, and Joshua D. Stafford, Inland Fisheries Habitat Management: Lessons Learned from Wildlife Ecology and a Proposal For Change, 42 Fisheries 197 (2017).

Wendy Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613 (1995).


March 9, 2020

What If the Court Saw Other Rights as Generously as Gun Rights?

[Cross-posted from The Atlantic]

By Aaron Tang

This is an essay about two words no one wants to see in the same story: guns and schools. But this isn’t about school shootings. This is instead about two starkly different social-activist groups: gun-rights proponents and educational-equity advocates. It’s about their steadfast pursuit of wildly divergent civil rights. It’s about a surprising similarity in their legal strategies. And more than anything, it’s a story about law and ideology, and the difficulty of deciding the former without the influence of the latter.  

Both groups have long courted the Supreme Court’s intervention. Spearheaded by new leadership at the NRA in the late 1970s, gun-rights activists engaged for decades in an effort to persuade the Supreme Court to recognize an individual Second Amendment right to bear arms for self-defense at home. The Court ultimately enshrined that right 12 years ago in D.C. v. Heller, displacing a long-standing consensus to the contrary. In the years after Heller, however, conservatives such as Justice Clarence Thomas frequently complained that the Court had ignored this fledgling right by refusing to expand its reach beyond the facts of Heller itself, effectively resigning the right to “second-class” status.

Second-class no more. In New York State Rifle & Pistol Association v. New York, a major case argued in December, the Court appears poised to expand the Second Amendment to protect gun possession outside the home as well. Just how far is an open question, though gun-rights groups have focused for now on enshrining a right to transport guns to shooting ranges and second homes.

For educational-equity advocates, the Court’s involvement has not been as helpful. The Court declared in 1973 that the Constitution guarantees no right to an education. That ruling paved the way for today’s radically unequal public-school spending patterns—patterns that reinforce and exacerbate existing socioeconomic and racial inequalities.

Like the gun activists, educational-equality proponents have not given up their vision of a constitutional solution. Equity advocates’ present litigation strategy is exemplified by a case known as Gary B v. Whitmer, which is currently pending in the United States Court of Appeals for the Sixth Circuit. The complaint in the case is painful to read: Many classes in Detroit public schools are taught by unqualified substitutes, and many classrooms use textbooks that are decades old, or lack them altogether. School buildings are in complete disrepair; the temperature had risen to 110 degrees in one building because of the lack of air conditioning, and students have to wear jackets and hats inside a number of schools during the winter months because of the lack of heat.

These schools, the plaintiffs argue, have deprived Detroit schoolchildren of their basic right to literacy, in violation of the equal-protection and due-process clauses of the Fourteenth Amendment. A district judge rejected the plaintiffs’ theory in 2018, but a panel of judges on the Sixth Circuit Court of Appeals seemed more receptive during oral argument in October. And regardless of the outcome of the case in the Sixth Circuit, the Supreme Court will likely have the final say, perhaps as early as in 2021.

At first glance, the gun-rights movement and the pursuit of educational equity seem to have little in common. But they in fact share an approach: Both promote arguments that rely on what are called “implied” or “unenumerated” constitutional rights.

Start with the gun activists’ position in New York State Rifle & Pistol Association. One of their primary objectives is to vindicate a constitutional right to transport their firearms to any shooting range of their choosing. (New York City forbade certain gun owners with premises licenses from bringing their guns to shooting ranges outside city limits—at least, that is, before the city and state both amended the law to permit such travel. The gun-owning plaintiffs wanted to shoot at ranges in New Jersey.)

The argument for a constitutional right to train at any shooting range is far from obvious. The Second Amendment speaks of a right to “keep” and “bear” arms, but says nothing about a right to train or practice. And indeed, cities and states at the founding often restricted gun owners to practicing only at prescribed locations.

So what do the gun activists argue? It’s worth reproducing this argument from their brief verbatim, with emphasis added to a single word: “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use … after all, the core right to keep and bear arms for self-defense wouldn’t mean much without the training and practice that make it effective.” The Second Amendment may say nothing about the right to practice at a shooting range of one’s choosing, in other words, but that right ought to be recognized implicitly because it is important for an express constitutional right to have full meaning.

Now consider the argument advanced by advocates of a constitutional right to basic literacy. Like gun activists and their right to firearms training, educational-equity advocates recognize that the Constitution says nothing explicit about education. But surely a guarantee of basic literacy skills must be implicit in the document in order for its express rights to have meaning. As the Gary Bcomplaint puts it, “without access to basic literacy skills, citizens cannot engage in knowledgeable and informed voting,” cannot exercise “their right to engage in political speech” under the First Amendment, and cannot enjoy their “constitutionally protected access to the judicial system … including the retention of an attorney and the receipt of notice sufficient to satisfy due process.”

The identical logical structure that underpins these otherwise distinctive arguments presents a puzzle for the Supreme Court. How can it in good faith accept a theory of implied constitutional rights for gun owners only to reject the same argument for schoolchildren? Yet the consensus among close followers is that this is the most likely outcome: Gun-rights activists believe the Court is primed to deliver them a victory in New York State Rifle & Pistol Association, while educational-equity advocates recognize that the Court’s conservative majority is unlikely to rule in their favor.

Should it come to pass, a pro-gun, anti-schoolchildren result would reveal some bleak lessons about the Supreme Court and the influence of political ideology on its justices. When logic cannot support the Court’s divergent decisions, the public is left with the impression that the Court is just engaged in politics by another name—that the “Supreme Court is not a court and its justices are not judges.” This has happened before: The Rehnquist Court famously took a cramped view of Congress’s power to regulate violence against women and (ironically enough) gun possession in school zones under the commerce clause. But when faced with a similar attack against Congress’s power to criminalize homegrown-marijuana production and use, the Court did a sudden about-face, broadly defending congressional authority.  

Perhaps, then, a neutral theory of implied rights—one founded on first principles instead of politics—ought to shape constitutional law. Under such a theory, starting with shared values seems fitting. To that end, consider Chief Justice John Marshall’s famous declaration two centuries ago that “we must never forget that it is a Constitution we are expounding.” A constitution’s very “nature,” Chief Justice Marshall explained, “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”  

Put another way, implied rights are a necessary consequence of the shared effort to live in a democracy bound by a timeless and embracing constitutional document. The Constitution is short for a reason: It lets people work out their problems over time, as they develop. Thus, many of America’s proudest judicial moments champion implied rights: the right to vote in state elections, the right to appeal a criminal conviction, and even the right to procreate. Like the right to vote, in particular, the right to education is “preservative of other basic civil and political rights,” and should be recognized for the same reason. And if one agrees with Heller’s individual, self-defense interpretation of the Second Amendment right—an assumption that, to be sure, is subject to powerful counterarguments—then an individual right to train with firearms would be entitled to the same logical underpinning.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.