General Actions:
Wiki: opencaselist13
▼:
Document Index
»
Space: Georgia
▼:
Document Index
»
Page: Shanker-Caplan Aff
General Actions:
Page Actions:
Georgia Shanker-Caplan Aff
Last modified by Will Caplan on 2014/03/29 21:53
| Tournament | Round | Opponent | Judge | Cites | Round Report | Open Source | Video | Edit/Delete |
|---|---|---|---|---|---|---|---|---|
| Districs | Quads | All | All |
|
|
|
| |
| GSU | 1 | Houston BL | Gordon |
|
|
|
|
|
| GSU | 3 | Georgetown EM | Hall |
|
|
|
| |
| GSU | 5 | Georgetown BL | Deming |
|
|
|
| |
| Gsu | 7 | Emory Cheng-Sawyer | Gannon |
|
|
|
| |
| Harvard | 7 | Wake Forest Washington-Leduc | Kennedy |
|
|
|
| |
| Harvard | 6 | California, Berkeley Wimsatt-Sergent-Leventhal | Gannon |
|
|
|
| |
| Kentucky | 2 | Texas Bhattacharjee-Jones | Hardy |
|
|
|
| |
| Kentucky | 3 | Northwestern Vellayappan-Miles | Stone |
|
|
|
| |
| NDT | 1 | Binghamton RS | Mccaffrey, Russel, Munoz |
|
| |||
| Ndt | 1 | Binghamton Reddick-Sehgal | McCaffrey, Munoz, Russell |
|
|
|
| |
| Ndt | 4 | Minnesota Crunkilton-Ehrlich | Deming, Repko, Woodruff |
|
|
|
| |
| Ndt | 5 | Berkeley Muppalla-Spurlock | Forslund, Phillips, Warden |
|
|
|
| |
| Ndt | 5 | Berkeley Muppalla-Spurlock | Forslund, Phillips, Warden |
|
|
|
| |
| Ndt | 5 | Berkeley Muppalla-Spurlock | Forslund, Phillips, Warden |
|
|
|
| |
| Shirley | 1 | Harvard Kim-Seaton | Wunderlich |
|
|
|
| |
| Texas | 5 | Liberty Bobbitt-Murray | Davis |
|
|
| ||
| Texas | 5 | Liberty Bobbitt-Murray | Davis |
|
|
| ||
| Texas | 8 | Missouri State Bess-Rumbaugh | Weil |
|
|
| ||
| Texas | 9 | Rutgers-Newark Smith-Randall | Crowe, Bato, Quigley |
|
|
| ||
| Usc | 1 | Wake Forest Clifford-Villa | Larson |
|
|
|
| |
| Usc | 1 | Wake Forest Clifford-Villa | Larson |
|
|
| ||
| Usc | 1 | Wake Forest Clifford-Villa | Larson |
|
|
|
| Tournament | Round | Report |
|---|---|---|
| Districs | Quads | Opponent: All | Judge: All Round 1 - Aff vs Florida Round 2 - Aff vs Emory Round 6 - Aff Vs Kentucky |
| GSU | 1 | Opponent: Houston BL | Judge: Gordon 1AC - I just posted it I think |
| GSU | 3 | Opponent: Georgetown EM | Judge: Hall 1AC- Its the one from the thing |
| GSU | 5 | Opponent: Georgetown BL | Judge: Deming 1AC - Enviro Aff |
| Gsu | 7 | Opponent: Emory Cheng-Sawyer | Judge: Gannon Added arctic |
| Harvard | 7 | Opponent: Wake Forest Washington-Leduc | Judge: Kennedy 1AC - Identity Aff |
| Harvard | 6 | Opponent: California, Berkeley Wimsatt-Sergent-Leventhal | Judge: Gannon 1AC - Judicial Exchanges and Nepa |
| Kentucky | 2 | Opponent: Texas Bhattacharjee-Jones | Judge: Hardy Basing and Arctic |
| Kentucky | 3 | Opponent: Northwestern Vellayappan-Miles | Judge: Stone 1AC Greenwashing and Judicial Exchanges |
| Ndt | 1 | Opponent: Binghamton Reddick-Sehgal | Judge: McCaffrey, Munoz, Russell 1AC- Murica |
| Ndt | 4 | Opponent: Minnesota Crunkilton-Ehrlich | Judge: Deming, Repko, Woodruff 1ac- increase NEPA restrictions on the Presidents authority to introduce Armed Forces into hostilities |
| Ndt | 5 | Opponent: Berkeley Muppalla-Spurlock | Judge: Forslund, Phillips, Warden 1AC- China |
| Ndt | 5 | Opponent: Berkeley Muppalla-Spurlock | Judge: Forslund, Phillips, Warden 1AC- China |
| Ndt | 5 | Opponent: Berkeley Muppalla-Spurlock | Judge: Forslund, Phillips, Warden 1AC- China |
| Shirley | 1 | Opponent: Harvard Kim-Seaton | Judge: Wunderlich Same as UK |
| Usc | 1 | Opponent: Wake Forest Clifford-Villa | Judge: Larson 1AC - Warming and Bioterror |
| Usc | 1 | Opponent: Wake Forest Clifford-Villa | Judge: Larson 1AC - Warming and Bioterror |
| Usc | 1 | Opponent: Wake Forest Clifford-Villa | Judge: Larson 1AC - Warming and Bioterror |
To modify or delete round reports, edit the associated round.
Cites
| Entry | Date |
|---|---|
1AC - ChinaTournament: Ndt | Round: 5 | Opponent: Berkeley Muppalla-Spurlock | Judge: Forslund, Phillips, Warden Relations are a framing issue – solves a bunch of impacts Managing U.S.-Chinese relations in such a context will be far from 1AC – Relations Taiwan overwhelms all alt causes and prevents US/Chinese military cooperation 1AC – Relations 1AC – China War 1AC – China War 1AC – China War 1AC – China War 1AC – China War 1AC – Solvency 1AC – Solvency Plan | 3/29/14 |
1AC - ChinaTournament: Ndt | Round: 5 | Opponent: Berkeley Muppalla-Spurlock | Judge: Forslund, Phillips, Warden Relations are a framing issue – solves a bunch of impacts Managing U.S.-Chinese relations in such a context will be far from 1AC – Relations Taiwan overwhelms all alt causes and prevents US/Chinese military cooperation 1AC – Relations 1AC – China War 1AC – China War 1AC – China War 1AC – China War 1AC – China War 1AC – Solvency 1AC – Solvency Plan | 3/29/14 |
1AC - ChinaTournament: Ndt | Round: 5 | Opponent: Berkeley Muppalla-Spurlock | Judge: Forslund, Phillips, Warden Relations are a framing issue – solves a bunch of impacts Managing U.S.-Chinese relations in such a context will be far from 1AC – Relations Taiwan overwhelms all alt causes and prevents US/Chinese military cooperation 1AC – Relations 1AC – China War 1AC – China War 1AC – China War 1AC – China War 1AC – China War 1AC – Solvency 1AC – Solvency Plan | 3/29/14 |
1AC - DistrictsTournament: Districs | Round: Quads | Opponent: All | Judge: All | 2/27/14 |
1AC - NDT RD 1Tournament: Ndt | Round: 1 | Opponent: Binghamton Reddick-Sehgal | Judge: McCaffrey, Munoz, Russell Plan: The United States Federal Judiciary should substantially increase National Environmental Policy Act restrictions on the President’s authority to introduce Armed Forces into hostilities. 1AC – Hegemony The Supreme Court's approach to standing, therefore, raises serious questions about the viability of a bedrock of U.S. environmental law - the citizen suit. Cass Sunstein concluded in the wake of Lujan that "it is now *405 apparently the law that Article III forbids Congress from granting standing to "citizens' to bring suit." n48 At the very least, as we have seen, these developments in standing doctrine will make the burdens on citizens and environmental groups more onerous. I will argue in Part II that standing doctrine may someday present insuperable obstacles to citizen suit enforcement with respect to international environmental problems that are yet to be comprehensively addressed under U.S. law. The growing doctrinal obstacles to the enforcement of federal environmental law via citizen suit are not, of course, strictly confined to Article III standing. A wide range of justiciability doctrines deter and weaken environmental citizen suits, including the Administrative Procedure Act's bar on "programmatic" challenges to agency action, announced in Lujan v. National Wildlife Federation, n49 and the arcane distinctions in Norton v. SUWA between agency "action" and agency "inaction" for purposes of determining whether the APA permits suit. n50 Perhaps the most prominent of these developments is the Court's 2008 decision in Winter v. NRDC, which raised the bar for even successful environmental plaintiffs to obtain injunctive relief. n51 In Winter, the Court decided that the balance of the equities and the public interest weighed against granting a preliminary injunction to environmental groups seeking to force the Navy to comply with the National Environmental Policy Act. n52 Particularly in the way it characterized the harms to be balanced in that inquiry - considering the risk of a national security incident but holding the environmental plaintiffs to a standard of actual, documented, past harm to wildlife - the Court took an approach to balancing that seemed systematically to disadvantage environmental plaintiffs. Interestingly, there were echoes of the Court's environmental standing jurisprudence in its balancing-of-the-harms analysis in Winter. Though NEPA is a procedural statute, the court did not consider or weigh any procedural harms on the side of the environmental plaintiffs, focusing instead on the types of harms that environmental plaintiffs traditionally have had to rely on to establish standing - individualized scientific, recreational and aesthetic harms. n53 At oral argument, Justice Scalia went so far as to evoke explicitly the requirements of Article III standing in the *406 discussion of what harms count for purposes of equitable injunctions. n54 Thus Winter may yet provide a new opening for reinserting common law conceptions of injury into these complex regulatory disputes. n55 Perhaps most significantly, Winter also announced that a district court would abuse its discretion in granting an injunction to the environmental groups even if they ultimately prevailed on the merits. n56 Winter thus appears to represent another significant obstacle in the path of environmental groups trying to force executive compliance with the law. Importantly, however, the decisions in National Wildlife Federation, Norton v. SUWA and Winters are not constitutional. Given sufficient political will, Congress can smooth those obstacles to environmental citizen suits by amending the Administrative Procedure Act and Federal Rule of Civil Procedure 65(a), governing preliminary injunctions. Because the core of Article III standing doctrine is, by contrast, beyond the capacity of Congress to alter by statute, standing decisions are likely to impose the steepest costs in enforcement of environmental law in the future. This cost to effective enforcement should be borne in mind as courts decide whether to embark down any of the several avenues that exist for reconciling Article III standing and environmental citizen suits. First, courts can opt to extend the Massachusetts approach to causation and redressability to all plaintiffs, rather than confining it to states. They also might accommodate citizen suits by indulging in some slight of hand concerning the nature of the injury that is required. Courts have shown themselves willing, in the past, to sidestep standing difficulties by simply redefining the injury. n57 Thus, in Laidlaw, a "reasonable fear" of illness stemming from toxic emissions was enough to confer standing. n58 A generous application of the "reasonable fear" approach could go a long way towards getting *407 environmental groups into court. Finally, the most accommodating way forward, by far, would be to recognize the power of Congress to define injuries and articulate chains of causation free from the constraints of the common law. III. The Problem of Compliance The ability of citizens to access courts in order to compel executive compliance with environmental laws may have important repercussions on the international plane, because domestic enforcement bears on one of the most fundamental questions in the design of international environmental agreements - why do states comply with their commitments? International environmental problems require deep cooperation among states. Given the prevalence of physical, economic, and psychological externalities associated with environmentally harmful practices, cooperation is necessary to the realization of the mutual benefits of common solutions. n59 Negotiated agreements, of course, only facilitate cooperation if states comply with them. Furthermore, expectations about compliance will often constrain the depth of the commitments that states are willing to make - that is, the extent to which they are willing to depart from the course that they would have taken in the absence of cooperation. Just as in private contract situations, states need to be able to rely on credible commitments by other states, especially when the contemplated activities are highly reciprocal. A state party may not be willing to embark on a path of costly pollution control, for example, without highly credible commitments from peer states that they will make the same sacrifices. David Victor blames the shallowness of international environmental law generally on the failure of efforts to develop effective compliance mechanisms. n60 The risk of defection in the environmental context is generally quite high. Because of scientific and economic uncertainty, the costs and benefits of cooperation are difficult to predict and assess ex ante. Moreover, this uncertainty is magnified by the long duration of cooperation that is often necessary to deal effectively with serious environmental problems. Similarly, political economy models predict that compliance with environmental commitments will be inconsistent. n61 The costs of *408 environmental regulation are typically highly concentrated, so that regulated sectors - industry groups in particular - have strong incentives to oppose compliance over time. The benefits of regulation, by contrast, are typically diffuse. Beneficiaries face higher transaction costs in organizing in favor of compliance, and high levels of political mobilization may be unsustainable over the long term. As Sunstein argues, the fact that environmental commitments are concluded at all often has to do with the "availability heuristic." n62 By this reasoning, environmental regulation has more widespread appeal when environmental harms are more "cognitively available" - when vivid and salient examples are present in the popular consciousness. As the cognitive availability of environmental harms fades, popular support for costly regulatory measures - and thus for compliance with environmental agreements that compel such measures - tends to fade as well. Given these challenges, how can the advocates of international environmental cooperation ensure compliance with negotiated agreements? A wide variety of explanations have been advanced to explain observed compliance. They need not be viewed as mutually exclusive; more likely, each of these mechanisms contributes in some respect to state compliance. The leading explanations include the reputational costs of defection, n63 the perceived fairness and legitimacy of negotiated agreements, n64 social learning, n65 and administrative capacity-building, both bilateral and multilateral. n66 Transnational legal process theorists, such as Harold Koh and Anne Marie Slaughter, predict greater compliance stemming from interactions - direct and indirect - between the legal institutions, broadly understood, of different countries. n67 Other theorists are far less sanguine about the prospects for compliance with international agreements in the face of changing conditions. Goldsmith and Posner have famously argued that the discipline *409 of international law mistakes correlation for causation. n68 They argue that the behaviors that international lawyers take to be manifestations of opinio juris are actually no more than states acting in their own interests. Pursuit of the national interest, they suggest, happens to produce consistent behaviors, at most times and in most places, which are mistaken for legal norms. Relatedly, David Victor and Kal Raustiala have questioned whether international law - as opposed to international political processes, culminating in so-called "soft law" - contributes meaningfully to compliance. n69 They point to several instances of highly effective environmental cooperation among states on the basis of non-legally binding agreements, and reason that nations may be more likely to agree to robust monitoring regimes when the commitments at stake are not legally binding. The accounts of compliance with international law that accord the most weight to direct enforceability of commitments in domestic legal systems are liberal theories, which focus on the distinctive domestic institutions of so-called "liberal states." Thus, according to David Victor, there are certain states - liberal democracies - "in which internal public pressure and robust legal systems make it possible to enforce international commitments from the inside (ground-up) rather than the outside (top-down)." n70 None of these, however, pays much heed to the potential for domestic courts to play a role in escaping the compliance dilemma. Even liberal theories tend to focus instead on interest groups and on the operations of the political branches. n71 Victor identified the existence of independent judiciaries as one of three factors explaining heightened compliance with international obligations by liberal states, but left the idea unexplored. He emphasized that "more work is needed to unravel the conditions under which they are most effective." n72 *410 Oona Hathaway offers empirical support for the hypothesis that domestic legal enforcement contributes meaningfully to compliance with international obligations. n73 After reviewing a range of studies, both qualitative and quantitative, that assess compliance with human rights law, she reaches two conclusions that are relevant here. First, states that boast independent judiciaries, media, and political parties are more likely to join treaties when their human rights practices are good, and are more likely to improve their practices upon joining. n74 In other words, they take their international legal obligations seriously. Second, just as domestic enforcement contributes to international compliance, the existence of "robust domestic rule-of-law institutions" tends to strengthen domestic enforcement. n75 Hathaway concludes, therefore, that work to strengthen local rule of law serves the ultimate goal of compliance with international human rights agreements. n76 In the environmental context, the compliance-reinforcing potential of domestic enforcement mechanisms is particularly pronounced. In the United States, citizen suits have been tremendously effective at forcing executive compliance, at both the federal and state levels, with the major federal environmental statutes. James May offers this assessment: Citizen suits work; they have transformed the environmental movement, and with it, society. Citizen suits have secured compliance by myriad agencies and thousands of polluting facilities, diminished pounds of pollution produced by the billions, and protected hundreds of rare species and thousands of acres of ecologically important land. The foregone monetary value of citizen enforcement has conserved innumerable agency resources and saved taxpayers billions. n77 Citizen suits are a staple of federal environmental law: nearly every major environmental statute imparts a private right of action to citizens. n78 And nearly 75 percent of all actions to enforce domestic environmental laws take the form of citizen suits. n79 Steps to make the environmental treaty obligations of the executive branch enforceable by citizen suit, therefore, may be expected to improve compliance. *411 Two overarching approaches to enforcement of international commitments by citizen suit are possible. First, environmental agreements could be made to include more specific, self-executing obligations, from the outset. n80 Alternatively, international agreements could continue to adhere to the model common to the Montreal and Kyoto protocols, whereby states commit to broad quantitative reductions, only now with an additional treaty obligation to provide for private enforcement of subsequent implementing legislation in the domestic legal system. Although this latter option would leave some margin for noncompliance, that margin would be highly circumscribed. Most noncompliance with environmental obligations is not through overt repudiation at the level of the executive or national legislature, but through non-enforcement. n81 Thus, whether international environmental agreements themselves create privately enforceable rights or those provisions are instead inserted later at the time of passage of implementing legislation by the legislature, the availability of citizen suits will greatly diminish the opportunity for states subsequently to renege through inaction on their commitments. n82 The key is to harness the enforcement potential of citizen suits in service of international compliance. This strategy is further recommended by the fact that domestic courts may be particularly well-suited, in institutional terms, to the task of long-term enforcement in the environmental context. Independent judiciaries are, in part by definition, more insulated from politics than the executive and the legislature, which means that they are also insulated from some of the most dangerous biases of political actors: short-termism, tendency to undervalue low-risk events, and unwillingness to face up to catastrophic risk. n83 Yet, generally speaking, domestic courts are not so insulated from the political tenor of a country so as to fail to perceive the costs of compliance. n84 Hence, they offer a solution to the vexing trade-off between credibility and *412 flexibility faced by the framers of international agreements in which environmental commitments - with their uncertain long-term costs - are at issue. What a country wants is to be bound when the question is close - so as to be able to make a credible commitment - but not when, from their perspective, circumstances have changed so much as to excuse noncompliance. n85 States are understandably wary of trusting foreign or international authorities to recognize and accommodate such instances of changed circumstances. A domestic institution is more likely to do so, even in cases of true judicial independence, simply by virtue of shared background assumptions that inhere in national identity and culture. Maximizing the extent to which international environmental commitments can make use of domestic legal institutions, therefore, may allow for optimal pre-commitment strategies. In addition to being highly effective, domestic enforcement of international environmental commitments is likely to be more politically palatable, at the stage of institutional design and ratification, than the alternatives. n86 Existing international agreements in this area are notable for their lack of monitoring, sanctions, and other international oversight mechanisms. n87 In the United States, at least, concerns about loss of national sovereignty to international institutions are highly politically salient, and often carried to irrational, even paranoid, extremes. n88 Thus, political resistance to foreign and international monitoring and sanctions regimes often goes far beyond what one would expect given the simple risk that those institutions will be insufficiently attentive to national interests in hard cases. This resistance means that any achievements in international oversight often come at the expense of the depth of the commitments made. n89 In the environmental context, therefore, provision for domestic judicial enforcement of international commitments may be a Goldilocks solution: just enough precommitment, without the steep political price upfront. Such a strategy, however, is closely bound up with the difficult questions about standing doctrine that were discussed in Part I. A *413 hospitable doctrine of standing is among the conditions necessary for making domestic courts an effective tool in ensuring compliance with international environmental agreements. If, instead, standing doctrine continues to constrict the environmental citizen suits that make it into court, these compliance benefits will be commensurately foregone. Ironically, standing doctrine will sweep most broadly in excluding citizen enforcement in a substantive area such as environmental law where the achievement of international cooperation was already highly challenging. In a further irony, the imminence and causation requirements of restrictive standing doctrine will make domestic enforcement most difficult to attain precisely when international institutions are most in need of support from domestic sources of compliance pressure: at the early stages of cooperation to address an incipient environmental problem. Climate change is the prime example of these risks, but the mismatch between standing doctrine and the substance of international environmental cooperation is institutional; it has the potential to extend far beyond the particular problem of climate change. Other environmental regimes promise even less concrete, more diffuse, and longer-term benefits from regulation. For example, failure of states to heed commitments directed towards preserving biodiversity will often fail to implicate any plaintiffs in particular. n90 What American has an "injury-in-fact," as interpreted by Justice Scalia, when an agency fails to take action to preserve the genetic diversity of obscure insects, plant species, or microorganisms, the use value of which to humans is almost nonexistent in the short or medium term? n91 Another highly problematic example is explored by Paul Hawken, Amory Lovins and L. Hunter Lovins in Natural Capitalism. n92 Several European countries have made great strides in reducing demand for natural resources and supply of solid waste by imposing responsibility for disposal and other "full life-cycle costs" on the manufacturers of consumer durables and industrial products. But when the environmental goods and services conserved by European states are freely traded, other economies can free-ride off of their efforts. If the United States agreed by treaty to impose similar requirements on manufacturers, what citizens would have standing to challenge executive noncompliance with resulting legislation? The doctrine of Article III standing has profound and far-reaching consequences for United States participation in international regimes to address the pressing environmental problems of today and tomorrow. If standing doctrine remains restrictive, unpredictable, and immune to *414 alteration by Congress, the international environment will pay part of the price. IV. Credibility as Negotiating Advantage The course of United States standing doctrine, of course, will not directly influence the enforceability of internationally agreed-upon environmental rules within other countries. Therefore, one might legitimately question the extent to which a change in the domestic law of one state - even that of a hegemonic power - will meaningfully affect the prospects for effective international coordination. n93 One response to such criticism is that removing one obstacle to greater reliance on domestic enforceability in international environmental regimes is a step in the right direction. As Justice Stevens reasoned in Massachusetts v. EPA, that a step is incremental does not defeat its utility. n94 But there also is a separate, stronger response: More robust domestic enforcement will strengthen the hand of the United States in international negotiations, whether or not other countries move in the same direction. The academic literature surrounding negotiation has a tendency to analyze the concept of credibility in the context of threats. That is, in bargaining over the spoils within a zone of possible agreement, the party that is able to tie its own hands or burn its bridges (or create the credible impression of having done so), alters (or obscures) its true bottom line. By threatening to walk away from the table, that party captures a greater share of the mutual benefits from agreement. n95 But as I explain, the capacity to make credible promises is also an asset in negotiation. The weakening of domestic enforcement of environmental law renders less valuable the promises made by U.S. negotiators, n96 by the following chain of causation: More restrictive environmental standing hinders domestic judicial enforcement, which in turn makes defection by the executive more likely, which drives negotiating partners to discount the value of promised actions by the (increased) likelihood of defection, thereby *415 rendering U.S. promises less valuable. As a result, the U.S. is able to get less in exchange for its promises in international environmental negotiations. Many scholars, however, emphasize the value of flexibility in international agreements, particularly in situations of uncertainty. n97 An advocate of restrictive standing might, in reliance on these analyses, argue that the gain in flexibility to the United States is worth the cost in terms of lost credibility. But the hypothesized Lujan apologist would be wrong. Weakened enforcement by the domestic courts serves only to narrow the range of options available to the political branches in the international arena. Whereas a state that is able to make credible promises can calibrate the value of a promise by varying its substantive content as it wishes, a state lacking credibility is limited in what it can (effectively, credibly) promise. In other words, a state in possession of credibility can still enjoy the benefits of flexibility, but the reverse is not true. Strategies of pre-commitment like domestic enforceability may be particularly useful to hegemonic powers like the United States. Hegemons of course, have a strong interest in preservation of the status quo. While ascendant political forces in the United States have, up to the present, identified the interests of the status quo as in conflict with concerted global action to deal with environmental problems, that position may no longer be tenable. Climate change and other looming ecological crises - not the efforts to deal with them - in fact pose the greater existential threat to the current global order, and American political elites are beginning to understand the need to address them. Thus, the nominees of both major American political parties expressed strong rhetorical support for efforts to deal with climate change in 2008, and a comprehensive cap-and-trade bill passed the House, but not the Senate, in 2009. n98 For a hegemonic power to convince other states to cooperate on its terms, however, it must be able to make credible commitments. Otherwise, the world will remain all too aware of the power of the hegemon to renege after the fact. n99 The U.S.'s need for credibility on the world stage derives not only from *416 structural factors. Though America's image in the world has rebounded substantially since the election of President Obama, n100 it was held in much lower esteem just one year ago. n101 And its perceived flouting of international norms was an important contributor to that decline. n102 The Bush administration's salient decisions to opt out of multilateral efforts, including "unsigning" the Rome Statute of the International Criminal Court, withdrawal from the Anti-Ballistic Missile Treaty, and non-participation in the Kyoto process are unlikely to be completely overlooked by global leaders considering long-term reciprocal cooperation with the United States, Obama's recent charm offensives notwithstanding. The international community is painfully aware of the periodic willingness of the political branches - particularly the executive - in the United States to spurn international obligations when interests so dictate. Many point out, however, that these manifestations of United States "exceptionalism" consisted not in noncompliance - violation of a binding legal norm - but rather in perfectly legal decisions to opt out of international processes. n103 The point is true for what it is worth, but prominent instances of U.S. noncompliance with binding legal norms are, nonetheless, fairly easy to identify. One of these instances of noncompliance is the requirement of consular notification in the Vienna Convention on Consular Relations. n104 In Medellin v. Texas, n105 the Supreme Court held that the state of Texas was not bound to refrain from executing Ernesto Medellin, even though the United States was indisputably in breach of its obligations under that treaty. n106 Domestic considerations of federalism and procedural default, therefore, trumped international compliance, much to the dismay of Mexico and many others in the international community. n107 Domestic procedural law also, *417 arguably, trumped international obligations for some time in the case of the prisoners of the war on terror held at Guantanamo. With respect to those individuals, the protections of the Geneva Conventions were undone - or at least very significantly delayed - by the jurisdictional requirements of U.S. law. n108 Comprehensive treatment of these controversies is beyond the scope of this paper, but the basic point is clear: the U.S.'s prospective negotiating partners are likely to be attentive to the risk that procedural hurdles - like strict standing - will undermine U.S. compliance in the environmental arena as well. V. Conclusion Several unresolved questions about Article III standing have important implications for the viability and effectiveness of citizen suits in environmental cases. If courts continue the recent trend of allowing procedural doctrines to restrict these suits, the shift may have important international repercussions which have not yet been fully reckoned with. Most important among these is that the unavailability of domestic enforcement of environmental laws through citizen suits will tend to undermine compliance with international environmental obligations. Both the negotiating position of the United States and the prospects for effective cooperation on the most pressing environmental issues facing humanity will suffer accordingly.
DOD compliance is perceived as ad hoc and self-interested – Court action is necessary to signal to the market a long-term commitment to energy efficiency Immediately following the events of September 11, the political climate was not conducive to preserving environmental health when it would interfere with readiness training for troops during wartime. n130 During this time, the DOD made multiple attempts to escape from the purview of federal environmental regulations. n131 These attempts were explained in 2003 by former Defense Secretary Donald Rumsfeld as simply a way to "clarify environmental statutes which restrict access to, and sustainment of, training and test ranges essential for the readiness of our troops and the effectiveness of our weapons systems in the global war on terror." n132 Many, even the Supreme Court, shared the position that national security trumps environmental protection. n133 However, as the high-profile wars in Iraq and Afghanistan began to fade from mainstream attention, the DOD began contributing more to a public discussion on energy efficiency and various environmental problems such as climate change. Journalists, politicians, and people within the military structure itself, such as the Military Advisory Board in the CNA report, started discussing major changes in the DOD's current energy policies. n134 Mainstream media have started to pick up on the transition, *319 particularly in light of insurgent attacks on fuel-supply convoys in Afghanistan, where fuel is the number one DOD import. n135 Companies in the United States are being contracted to supply the troops with solar power equipment, including portable solar panels, solar chargers for electronic equipment, and other renewable technology. n136 Members of the military are hopeful that less dependence on fossil fuels will provide a safer atmosphere for soldiers by reducing the number of truck convoys that haul fuel to bases, thus reducing the number of attacks. n137 Besides providing assistance with alternative-energy projects for troops, the DOD's newfound interest in better funding for energy research and development is evident through solar installations, electric-vehicle purchases, and development of renewable fuel. n138 For example, the Army recently announced plans to develop smart microgrid technology, n139 which "can draw energy interchangeably from solar arrays and other sources to cut costs, improve logistics, and reduce troop safety risks involved in fossil fuel convoys." n140 These microgrids could potentially cut fuel consumption at an Army base by up to sixty percent. n141 The Air Force is also pursuing energy efficiency through the development of jet biofuel and has plans to certify its entire fleet to run on biofuels by 2011. n142 It is already running test flights with 50 biofuel *320 mixtures. n143 Since a majority of the fuel used by the DOD goes to military aircraft, n144 this could have an enormous impact on fossil-fuel use and total carbon dioxide emissions. Although there is conflicting evidence on whether biofuel production results in higher or lower total emissions, there are other studies that show the use of biofuels could reduce GHG emissions overall, since they burn cleaner and the amount of energy needed in production is decreasing. n145 Similarly, the Navy, which set a goal to have 50 of its power come from renewable sources by 2020, has been exploring the use of natural biocides to keep the hulls of ships clean. n146 Barnacles, algae and other marine biofilm, which cling to the hulls, can reduce a ship's fuel efficiency by up to 40; therefore, keeping the hulls clean cuts down on the amount of operational fuel used in the military. n147 Not only does this particular project benefit the Navy in fuel and economic efficiency since other biocides are expensive, but it also protects sensitive marine life from the harmful chemical biocides that are normally used. n148 Small, individualized projects have also proven extremely effective. According to Dan Nolan, author of the DOD Energy Blog, the single most effective program for reducing energy consumption has been spray foam insulation of temporary structures in Iraq and Afghanistan. n149 The spray foam project has proven to be not only energy efficient but financially beneficial as well, saving the military over 100 million dollars per year. n150 In addition to seeking reduction in fossil-fuel use generally, the military is also actively reducing GHG emissions through "contracted landfill disposal, increased teleworking and less air travel." n151 Government contractors have also developed web-based GHG *321 inventories for Army installations that can be used to identify, quantify, and report emissions including carbon dioxide, nitrous oxide, methane, sulfur hexafluoride, hydro fluorocarbons, and per fluorocarbons. n152 C. An Ultimate Paradox As the world's largest consumer of energy, the military has a long way to go if it intends to achieve energy efficiency goals set by the government and the DOD itself. However, not everyone is convinced that the military will follow through, considering its past environmental record. n153 This skepticism is valid in light of the growing impact climate change has had on the planet and the extent to which the military has contributed to GHG emissions. n154 In addition, mistrust of the DOD's environmental record is warranted, since environmental damage from military activities still exists all over the United States n155 The suspect attitude toward military greening is akin to an attitude held by many concerning corporate "environmentalism" in the form of "greenwashing." n156 The military is claiming to go "green," and is indeed making strides in energy efficiency, while simultaneously increasing oil use by 1.5 annually through 2017. n157 Also, efficiency programs are limited to base installations and are not applied to tactical fleets, where much of the DOD's fuel consumption occurs. n158 Furthermore, little is said in any of the aforementioned reports about the many exemptions the DOD sought from numerous environmental laws over the past eight years. n159 The military is accustomed to approaching environmental protection on its own terms and is giving mixed signals about how *322 important energy efficiency will be in the near future. Consequently, there is a question as to how self-imposed standards such as voluntary compliance with federal energy efficiency standards, from which the DOD is otherwise exempt, will play out. n160 One example of the uncertainty of these programs can be found in a recent article in ClimateWire. n161 According to the article, the aforementioned spray foam insulation program has now been halted in the absence of advocacy for such programs. n162 The difficulty of relocating the foam tents and high disposal costs have led to the demise of spray foam use, and supporters are calling for a mandate to move forward with the project. n163 It is unclear whether the DOD will resume the program at all. The need for advocacy is especially important for the public to understand, because of the potential for new energy technology to transform the civilian marketplace as military technology finds its way into the public domain. n164 The military has begun to take the lead in energy efficiency, drive the civilian sector toward sustainable energy use, and push for "policy change to help make the necessary cultural shifts in how its people think about energy use and the decisions they make in all settings." n165 The more seriously the military takes energy efficiency, the faster sustainable technology will reach the public. For that reason, progress on these efforts should be monitored and documented for the public to review. A history of military brush-offs of the importance of environmental protection does not lend itself to a campaign of global stewardship. In order to win the confidence of the public, the military must demonstrate a willingness to follow through with the programs it has set in place to lead alternative-energy development in the United States and the world. We face this domestic challenge while other major powers are experiencing rapid economic growth. Even though countries such as China, India, and Brazil have profound political, social, demographic, and economic problems, their economies are growing faster than ours, and this could alter the global distribution of power. These trends could in the long term produce a multi-polar world. If U.S. policymakers fail to act and other powers continue to grow, it is not a question of whether but when a new international order will emerge. The closing of the gap between the United States and its rivals could intensify geopolitical competition among major powers, increase incentives for local powers to play major powers against one another, and undercut our will to preclude or respond to international crises because of the higher risk of escalation. The stakes are high. In modern history, the longest period of peace among the great powers has been the era of U.S. leadership. By contrast, multi-polar systems have been unstable, with their competitive dynamics resulting in frequent crises and major wars among the great powers. Failures of multi-polar international systems produced both world wars. American retrenchment could have devastating consequences. Without an American security blanket, regional powers could rearm in an attempt to balance against emerging threats. Under this scenario, there would be a heightened possibility of arms races, miscalculation, or other crises spiraling into all-out conflict. Alternatively, in seeking to accommodate the stronger powers, weaker powers may shift their geopolitical posture away from the United States. Either way, hostile states would be emboldened to make aggressive moves in their regions. As rival powers rise, Asia in particular is likely to emerge as a zone of great-power competition. Beijing’s economic rise has enabled a dramatic military buildup focused on acquisitions of naval, cruise, and ballistic missiles, long-range stealth aircraft, and anti-satellite capabilities. China’s strategic modernization is aimed, ultimately, at denying the United States access to the seas around China. Even as cooperative economic ties in the region have grown, China’s expansive territorial claims — and provocative statements and actions following crises in Korea and incidents at sea — have roiled its relations with South Korea, Japan, India, and Southeast Asian states. Still, the United States is the most significant barrier facing Chinese hegemony and aggression. Empirically Proven- Stable hierarchies in international politics prevents great power conflict --- the alternative is violent autocratic rise Historical studies prove better than the alt’ – deterrence is critical to solving war The blanket rejection of US power results in genocide | 3/28/14 |
1AC Round 3 UKTournament: Kentucky | Round: 3 | Opponent: Northwestern Vellayappan-Miles | Judge: Stone As oil continues to gush into the Gulf of Mexico, just one of many Warfare techniques cause irreversible environmental destruction that has a ripple effect globally – invisible threshold now The United States military is the single largest consumer of fuel in the world. Wartime exemptions are at the root of the problem – status quo judicial decisions continue this practice The DOD has been shielded from full accountability for its environmental offenses due to numerous Immediately following the events of September 11, the political climate was not conducive to Courts are key – solves warming and credibility
U.S. leadership on the broader green tech transition is critical to solve warming and solves great power competition We face this domestic challenge while other major powers are experiencing rapid economic growth. Warming causes extinction Warming is real CALL me a converted skeptic. Three years ago I identified problems in previous climate Judiciary 1AC The United States courts have experienced the impact of globalization in many ways. With A judiciary well informed of the rapidly expanding boundaries of environmental law and law in Lack of Judicial checks allow for carte blanche military pollution The starting point for a discussion of how environmental laws apply to the Chinese military In many developing countries, the military is viewed as a necessary support for the The extent to which an environmental agency can effectively enforce environmental regulations frequently depends on Chinese pollution causes CCP instability As pollution and environmental degradation in China worsens, the Communist government has been unable The fourth factor contributing to the perception of a China threat is the fear of Since the Party’s life is “above all else,” it would not be surprising The risks from anthropogenic hazards appear at present larger than those from natural ones. Specifically – military causes water pollution The Control Yuan recently censured the Defense Ministry over its failure to properly dispose of Moreover, protests serve as a venue for the politically disaffected who are unhappy with Extinction Russia may face the "wonderful" prospect of combating the Chinese army, which 1AC – Basic | 10/15/13 |
1AC- TexasTournament: Texas | Round: 5 | Opponent: Liberty Bobbitt-Murray | Judge: Davis | 2/13/14 |
1AC- TexasTournament: Texas | Round: 5 | Opponent: Liberty Bobbitt-Murray | Judge: Davis | 2/13/14 |
2AC Round 1 - ShirleyTournament: Shirley | Round: 1 | Opponent: Harvard Kim-Seaton | Judge: Wunderlich Moreover, protests serve as a venue for the politically disaffected who are unhappy with 2AC AT Circumvention Insisting on a sharp distinction between the law governing presidential authority that is subject to The U.S. military’s recent move to lessen its use of fossil fuels XO CP – 2AC w/NEPA U.S. Environmental Laws Serve to Uphold the Longstanding Tradition of Civilian Control At the same time, the military exercises control, to a remarkable degree, PQD DA – 2AC The Bush Administration has made clear its view that NEPA should be limited to impacts Non-unique and no link uniqueness - PQD is dead – it’s never been cited and previous statutes disprove the link Lower federal courts often cite the “Political Question Doctrine” when dismissing as nonjusticiable No Link - NEPA application is about statutory interpretation, no violation of political question doctrine B. Review of the Air Force EIS, Within the Limitations Set Forth by 1NC No Econ War Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the So, did Roberts and Alito lie during their confirmation hearings? n4 Did they 5. Capital is compartmentalized a. The fallacy of the concept of fungible institutional capital. The basis for Interestingly, though, the Supreme Court has been immune from that cynicism. At New Minimalism U – 2AC Each summer we hear lots of conversation about harmony and need for consensus in Supreme McCutcheon Thumper – 2AC Cap K 2ac
No institution is or ever has been a seamless monolith. Although the inherent mechanism of American capitalism is as you describe it, oriented solely to profit without regard to social consequences, this does not preclude significant portions of that very system from joining forces with the worldwide effort for the salvation of civilization, perhaps even to the extent of furnishing the margin of success for that very effort. Too late for the luke link : intervention has irreparably altered the environment. Abandoning management risks extinction. If our current situation can really be accurately characterized as the extension of bio- 2. Framework- the role of the ballot is to weigh the plan against a competitive policy option 3. Capitalism is resilient – it’ll bounce back Capitalism is down. It may even be out. But it's far from dead 4. Case outweighs- short term nuclear war from economic collapse causes nuke war and warming and social unrest in china causes extinction- alt can’t solve in the short term 5. Rejection won’t dislodge capitalism – no critical mass exists Grossberg 92 (Lawrence, Professor of Communication Studies – UNC-Chapel Hill and Chair of the Executive Committee of the University Program in Cultural Studies, We Gotta Get Out of This Place: Popular Conservatism and Postmodern Culture, p. 388-389) If it is capitalism that is at stake, our moral opposition to it has | 11/16/13 |
2AC Round 5 GSUTournament: GSU | Round: 5 | Opponent: Georgetown BL | Judge: Deming T – Hostilities – 2AC The House Foreign Affairs Committee (hereinafter H.F.A.C) The determination that “hostilities” is an ambiguous term and therefore, susceptible to Executive CP – 2AC First, government actors have a need for legal clarity, particularly in national- 3. Congress will roll back the counterplan during a conflict – kills solvency In times of war, the conflict between national-security goals and environmental laws 4. Military non-compliance undermines environmentalism across the board – only the plan solves Space Weapons Add-On – 2AC Generic Legalism K – 2AC 3. Extinction outweighs The same argument can be made for Kant’s other formulations of the Categorical Imperative: Insisting on a sharp distinction between the law governing presidential authority that is subject to 8. No impact In an important programmatic statement of 1996 Geoff Eley celebrated the fact that Foucault’s ideas
As I have shown above, while political forces played a significant role in checking War Powers DA – Gtown – 2AC
The first and perhaps overarching reason underlying the growth of presidential power is that the Whatever happens with regard to Syria, the larger consequence of the president's action will This study started out with two questions. The first was: ?Does war Thus, it also illustrates the truism, profoundly relevant to the war on terror 4. Plan doesn’t hurt warfighting The evidence that compliance with environmental laws has seriously impaired U.S. preparations 8. No bioterror impact It is important to remember that the risk of biological attack is very low and A2: 4GW The notion of 4GW ?rst appeared in the late 1980s as a vague sort of A2: Econ T/Heg
Schuette Thumper – 2AC In the more than three decades since the Supreme Court’s ruling in Regents of the A2: McCutcheon vs. FEC – U 2AC Toobin paints a dreary picture of the prospects for the case, encapsulated in a Court Politics DA – 2AC So, did Roberts and Alito lie during their confirmation hearings? n4 Did they 5. Capital is compartmentalized a. The fallacy of the concept of fungible institutional capital. The basis for Interestingly, though, the Supreme Court has been immune from that cynicism. At | 9/22/13 |
Cit Suits ArcticTournament: Gsu | Round: 7 | Opponent: Emory Cheng-Sawyer | Judge: Gannon The Arctic Ocean is believed to have one of the largest remaining undeveloped reserves of oil and gas in the world.1 Interest in Arctic offshore exploration and development has grown over the last few years, and several companies have significant plans for new activities in the Arctic.2 While the Arctic holds significant promise for new oil and gas development, its harsh conditions and fragile environment pose a number of unique challenges to the exploration and production industry. As activities in the Arctic expand, one of the major hurdles that companies desiring to conduct offshore operations in the region will have to overcome is obtaining environmental approvals for their proposed activities. This Article compares the regulatory systems of the United States and Norway and the likelihood of citizen group challenges environmental decisions made by regulators.3 Reflecting on recent litigation in the Chukchi Sea and the Gulf of Mexico, we highlight the significant uncertainties and delays that can be associated with citizen suits. Ultimately, we conclude that although there remain regulatory distinctions, post-Deepwater Horizon reforms are bridging the gap between the U.S. and Norwegian regulatory systems. However, companies engaging in new exploration and production activities in the Arctic may prefer to minimize their uncertainty and operate in the territory of those countries where participatory governance structures reduce the likelihood of citizen group challenges to regulatory decisions. II. Challenges of Arctic Spill Response The Arctic environment itself poses unique challenges for oil and gas exploration and production. Among these are the harsh climate conditions and presence of ice, which lead to shorter working seasons. A staff working paper for the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling describing the difficulties of spill response in the U.S. Arctic explains that both the Chukchi and Beaufort Seas present environmental conditions that call into question the effectiveness of common response methods.4 Temperature, winds, and wave action limit responder access and impact dispersion and degradation of oil; locating oil among or captured in ice floes can be difficult and dangerous; and ice poses a physical barrier to mechanical recovery technology such as skimmers and booms.5 Some methods of response proposed for use in the U.S. Arctic rely on strategies and technologies that are untested in Arctic conditions. A "leave-in-place" strategy that tracks oil incorporated into ice in order to recover it once the ice melts has not been used during an actual spill.6 Additionally, in-situ burning, a response technique used in the Deepwater Horizon response, could require chemical herders7 of which there are none currently approved for use in Arctic waters and for which studies on effectiveness of in-situ burning in an Arctic environment have yielded varying results.8 Similarly, a 2001 study found chemical dispersant less than 10 effective on the Alaska North Slope.9 Concerns about toxicity of dispersants and the lengthened time that dispersed oil would remain in the ecosystem in Arctic waters also persist.10 In addition, the potential interactions between oil and sea ice are poorly understood,11 making it difficult to develop effective spill response technologies. Staging a spill response in the U.S. Arctic would be far more difficult than in more developed and less remote regions, such as the Gulf of Mexico. The U.S. Arctic currently lacks the support infrastructure needed to marshal an adequate response. The Coast Guard has only one operational polar icebreaker, the Healy,12 and would need additional icebreakers to respond to spills or emergencies if major drilling began in the Chukchi Sea. The nearest Coast Guard operations base to the Chukchi is about 1,000 miles from leasing sites, making it difficult to conduct search and rescue operations.13 As a result, initial emergency and spill response activities would likely fall to industry and contractors. Even in the Beaufort Sea, which is much closer to shore, there is limited response capability. The small communities in the area can not presently support the large number of response personnel required to respond to a major incident.14 Oil spill response contractors, such as Alaska Clean Seas ("ACS"), have limited offshore response capabilities.15 ACS was established as a non-profit response co-operative for the North Slope onshore operations. It is unlikely that the amount of resources marshaled in the Gulf of Mexico for the Deepwater Horizon spill could be gathered in the U.S. Arctic under current conditions. More than one hundred aircraft and helicopters were used during the Deepwater Horizon response for aerial surveillance and tracking.16 It is generally understood that similar resources are not yet available for rapid response in the U.S. Arctic. Response resources in the U.S. Arctic are presently located hundreds of miles from the drilling area, whereas in the Gulf of Mexico, spill response equipment was available immediately.17 Although the Norwegian Arctic faces some similar environmental challenges as the U.S. Arctic, it has more robust response capabilities for offshore drilling and has characteristics that make such response capabilities easier to amass than in the U.S. Arctic. The Norwegian Arctic does not have the sea ice that greatly complicates operations in the U.S. Arctic. In addition, unlike the remote nature of the U.S. Arctic, the northern Norway is a populated area with a number of cities that have substantial transportation, housing, and economic infrastructure, including significant airports, that would make a Deepwater Horizon-level response in the Barents Sea easier to conduct. As for the governmental response capabilities, as was described above, the U.S. Coast Guard has limited response capabilities in the U.S. Arctic. By contrast, northern Norwegian municipalities, that also have responsibility for response within their jurisdictions, the Norwegian Coast Guard, and the Norwegian Coastal Administration have substantial offshore response capabilities with equipment located across the Norwegian coast.18 There are significant differences in the private sector response capabilities as well. While Alaska Clean Seas is geared mostly towards work on the North Slope, Norway's equivalent private sector association, the Norwegian Clean Seas Association for Operating Companies ("NOFO") has substantial experience in offshore spill response in open seas and coastal waters in the Arctic. It was created following a blowout in the North Sea in 1977.19 The organization maintains five bases with twenty full time employees and fifty reinforcement personnel pledged by operators as well as eighty people hired to maintain and operate oil spill response equipment at the bases.20 NOFO provides tactical and operational command of private sector response resources for oil companies in the event of a spill. As is described in more detail below, the company responsible for the spill has overall responsibility for spill response from offshore facilities under Norwegian law, with the governmental response and coordinating responsibilities falling to the Norwegian Coastal Administration. NOFO's response resources include oil recovery vessels, towing vessels, ocean-going mechanical oil recovery systems, large stocks of dispersion agent, agreements for remote sensing from radar satellites, aircraft, helicopters, vessels and installations, oil recovery equipment for coastal operations, and a specialized task force for organizing and conducting shoreline operations.21 NOFO conducts more than 100 exercises and verifications annually, including oil-on-water RandD and training exercises.22 NOFO's resources are dispersed throughout Norwegian coastal areas in order to quickly respond to spills.23 As mentioned above, Alaska Clean Seas was developed primarily for onshore operations in the North Slope. While it has some response capabilities for offshore operations, Alaska Clean Seas' primary activity and the majority of its equipment remains geared towards the North Slope, near-shore, and onshore water bodies.24 In addition, the oil companies themselves, that are required to provide for oil spill contingencies, have deposits of equipment in various coastal locations.25 II. Comparison of U.S. and Norwegian Regulatory Regimes Norway's regulatory regime governing offshore exploration and development is generally regarded as among the most stringent in the world, and, in the aftermath of Deepwater Horizon, requirements with regard to oil spill preparedness and clean-up in the United States have become more robust. However, there are still significant differences between the legal standards in the United States and Norway. In Norway, the requirements imposed upon operators of offshore exploration and development activities derive from both the Petroleum Activities Act and the Pollution Control Act. Together, these Acts create an affirmative duty of pollution response and cleanup. In contrast, while new regulations require that a party demonstrate it has adequate resources to clean up a spill, the United States' legal regime has traditionally been more focused on the imposition of financial liability for spill cleanup than on creating a structure that governs who will conduct the cleanup. This Part provides a brief overview of the process by which entities may obtain rights to explore portions of the outer continental shelf and the environmental approvals associated with such activities. This Article then describes the spill response planning and demonstration of financial capacity to respond to a spill required for approval to drill offshore. A. Offshore Leasing and Permitting in the United States The Submerged Lands Act established that all submerged lands and resources associated therewith between 3 and 200 nautical miles from shore are property of the United States while the coastal submerged lands belong to the States.26 Leasing of offshore areas for energy development in the United States is governed by the Outer Continental Shelf Lands Act ("OCSLA").27 Leasing and development of offshore energy resources under OCSLA is carried out by the Bureau of Ocean Energy Management ("BOEM"), within the Department of the Interior.28 The leasing process begins with BOEM developing a 5-year leasing plan for a particular area.29 Under the 5-year leasing plan, BOEM will describe which lease blocks it intends to offer at auction.30 The five-year leasing plan is then carried out through a series of sealed-bid auctions in which an applicant may obtain the right to conduct exploration and development activities in certain portions of the Outer Continental Shelf. Once a lessee has successfully obtained a lease from BOEM, it typically provides a 10-year exclusive right to conduct exploration and development activities in a particular area. Upon discovery of oil or gas within the initial period of the lease, the lease is automatically extended for as long as the well is producing in paying quantities or the lessee is conducting approved drilling operations. Before a lessee can undertake any exploration activities in a particular lease block, it must submit to the Bureau of Safety and Environmental Enforcement ("BSEE") for approval a spill response and exploration plan. This exploration plan will be subject to review under the National Environmental Policy Act ("NEPA"), described in more detail below. In addition, if endangered or threatened species are present in the area, BSEE may be required to consult with the Fish and Wildlife Service or the National Marine Fisheries Service under the Engendered Species Act or the Marine Mammal Protection Act before approving the exploration plan. Similarly, when a project proceeds to the production phase, activity cannot begin until BSEE has approved a lessee's development plan. The development plan will be subject to the same environmental reviews that apply to the exploration plan. In the aftermath of the Deepwater Horizon incident, the Bureau of Ocean Energy Management, Regulation and Enforcement ("BOEMRE"), now the BSEE and BOEM,31 added several new requirements that must be met for the approval of both exploration and development plans. Notice to Lessees NTL2010-06 requires that all exploration and development plans submitted for approval must describe the worst-case discharge scenario. NTL2010-06 also requires the applicant to describe proposed measures to prevent a blowout, reduce the likelihood of a blowout, and conduct effective early intervention in the event of a spill.32 In addition, under NTL2010-10, BSEE will evaluate all applications to determine whether lessees have submitted information demonstrating that they can deploy adequate containment resources to respond to a blowout or loss of well control.33 On December 13, 2010, BOEMRE issued additional guidance for deepwater operators on complying with NTL2010-10.34 The guidance outlined what should be included in a containment plan prepared for the purpose of complying with NTL2010-10. Offshore activities are also subject to Clean Water Act ("CWA")_and Clean Air Act ("CAA") regulations and permitting requirements governing their emissions and discharges. The CWA requires any discharges into navigable waters of the U.S. to be permitted. In the case of a prohibited discharge, such as a spill, reporting of the incident is required.35 Likewise, the CAA requires operators to obtain air permits that have similar reporting requirements in the event of a non-permitted release. B. Offshore Leasing and Permitting in Norway The National Petroleum Directorate ("NPD") and the Petroleum Safety Authority of Norway ("PSA") oversee the resource management and safety, respectively, of the petroleum industry in Norway in conjunction with various Ministries. Additionally, the Norwegian Pollution Control Authority and Norwegian Social and Health Directorate cooperate with PSA on regulating health, environment and safety for offshore operations.36 Offshore leasing and permitting in Norway is carried out under the authority of the Crown under the 1996 Petroleum Activities Act. Before new areas can be opened to petroleum activities, the Ministry of Petroleum and Energy must conduct an evaluation of the impact of new petroleum activities in the area on trade, industry, and the environment.37 By regulation, the Ministry must create a draft impact assessment plan and make it available for public comments for a minimum of six weeks.38 The impact assessment itself must describe the presumed impacts of opening the area to petroleum activities and the impact of future petroleum activities in the area.39 Once the draft assessment has been prepared, it must be submitted to all concerned authorities and central industrial organizations and also posted for public comment.40 At the conclusion of the public comment period, which will typically last three months and must be at least six weeks, the Ministry must decide if additional assessments are needed.41 Once the Ministry has concluded all necessary assessments, the proposal to open the new area must be submitted to Parliament for approval.42 In general, the Ministry will announce areas of production for which it will grant leases and provide a minimum of 90 days for the submission of applications.43 Production licenses, granting exclusive rights for exploration and production, may then be granted to appropriately registered individuals.44 The Ministry announces blocks for which it will accept production license applications, companies submit their applications, and then after negotiations the licenses are awarded. This process can take approximately eighteen months.45 In assessing the applications, the technical expertise of the applicant related to development, research, safety, and the environment, its financial capacity, geological understanding, and experience in the Norwegian Continental Shelf and other locations are all taken into account in granting licenses. The Norwegian Petroleum Directorate ("NPD") and State Pollution Control Authority must approve all exploratory drilling. Prior to starting exploration activities, licensees must submit information required under the Resource Management Regulations to the Norwegian Petroleum Directorate, the Directorate of Fisheries, the Institute of Marine Research, and the Ministry of Defence.46 These regulations also include requirements applicable to the surveys and vessels involved in the exploratory activity. Prior to drilling an exploratory well, the licensee must receive a permit from the NPD. Before beginning development, licensees must submit plans for development and operation of the petroleum deposit to the Ministry of Petroleum and Energy and Ministry of Labour with copies to the NPD and NPS.47 The Ministry coordinates the approval process. The plan must include an overall plan for drilling and well activities as well as a Plan for Development and Operation ("PDO").48 As part of this approval process, the licensee must undertake an environmental and socio-economic assessment (ESIA) that is subject to public hearings before governmental approval. The ESIA contains a detailed account of the impacts on the environment that are anticipated from the proposed exploration and development activities.49 Licensees are subject to the requirements of Norway's Pollution Control Act.50 Under the Pollution Control Act, all persons engaged in exploration and production have a duty to prevent pollution, and in the event of pollution in violation of the Act, the responsible party must stop the pollution and mitigate any resulting damage or nuisance.51 The Pollution Control Act also establishes a Pollution Control Authority with broad regulatory powers. In the event that an activity, such as oil and gas exploration in the Arctic, is proposed at a new site and has the potential to involve serious pollution, the project developer must notify the Pollution Control Authority of its plans.52 Upon receiving such notice, the pollution control authority must determine whether an environmental impact assessment is necessary before the project may be permitted.53 If an environmental impact statement is required, it must be made public and the Pollution Control Authority must convene a public hearing before making a final decision.54 Norway's Pollution Control Regulations establish that any applicant for a permit under § 11 of the Act, which would include operators of oil and gas exploration and development activities, conduct an environmental impact assessment and provide a description of all measures to control pollution in the permit application.55 C. Spill Response and Financial Responsibility Requirements In Norway, the requirements imposed upon operators of offshore exploration and development activities come from both the Petroleum Activities Act and the Pollution Control Act. Together, these Acts create an affirmative duty of pollution response and cleanup. In contrast, while the new NTL2010-10 requires that a party demonstrate it has adequate resources to clean up a spill, the United States' legal regime has traditionally been more focused on the imposition of financial liability for spill cleanup than on creating a structure that governs who will conduct the cleanup. Norway imposes an obligation to respond to a pollution incident on all persons responsible for the incident as well as an obligation to provide assistance to the governmental response. Under Norway's Petroleum Activities Act, a licensee must maintain efficient emergency preparedness at all times.56 In the event of a release, the licensee has primary responsibility to respond and return the environment to a state that is as close as possible to pre-spill conditions.57 In addition, the Ministry is granted the authority to require other licensees to make available necessary contingency resources and take other measures to obtain spill response resources in the event of an emergency.58 In addition, Norway's Pollution Control Act requires all permittees whose activities may cause acute releases to have an emergency response system.59 To fulfill this requirement, the party must provide the necessary emergency response equipment to prevent, detect, stop, remove, and limit the impact of the pollution.60 An emergency response system will be deemed adequate when it is determined to be in reasonable proportion to the probability of acute pollution and the extent of damage that may arise.61 In addition, Norway requires that operators demonstrate that they have the financial capacity to carry out a response activity, should one be necessary. Finally, Norway's Pollution Control Act does give third parties with a legal interest in the matter the right to file claims for restitution for losses resulting from a pollution event. NOFO, described in an earlier section, is private industry's main coordinating association for its spill response in addition to capabilities of individual operators. The required private industry response and contingency system is complimented by a municipal contingency system to combat pollution that occurs within its jurisdiction but which is not covered adequately by the polluter's response. In addition, the Norwegian government has its own contingency system developed to respond to major incidents and to coordinate response by all entities involved via the Norwegian Coastal Administration. The Norwegian Coastal Administration coordinates the response according to the national emergency response system. In contrast, prior to the Deepwater Horizon incident, the United States' legal regime was almost exclusively focused on establishing financial liability for the damages caused by a spill, rather than on creating a structure for spill response. Passed in response to the Exxon Valdez incident, the Oil Pollution Act of 1990 establishes that a responsible party will be liable for all costs associated with the removal of oil from the environment as well as all damages to natural resources, property, revenues, or public services.62 However, a party's liability for damages to private parties, in addition to the cost of removal, under the Oil Pollution Act is capped at $75,000,000 for an offshore facility unless the spill was the result of a violation of regulations.63 In the event of a spill at an offshore facility resulting in a discharge into waters of the United States, the operator may also face liability under the Clean Water Act, including civil penalties of up to $32,500 per day and natural resource damages.64 While the United States' system thus establishes financial responsibility in the event of a spill, it does not impose the responsibilities for actual spill response that exist in the Norwegian scheme. However, the BOEM requirement that applicants for new development permits must demonstrate comprehensive spill response capabilities is already having a practical impact on the U.S. permitting process. NTL2010-10 and the guidance issued for it require an operator to demonstrate that it has access to and can deploy surface and subsea containment resources to adequately respond to a blowout or loss of well-control.65 This includes addressing capabilities for debris removal and access to subsea containment and capture equipment, subsea utility equipment, riser systems, Remotely Operated Vehicles ("ROVs"), capture and support vessels, and storage facilities.66 The requirement that applicants for new development permits must demonstrate spill response preparedness will be of particular importance to operators of new facilities in the U.S. Arctic because of the unique challenges of Arctic spill response, described above. Thus, the need to demonstrate spill response capacity may become a significant hurdle that must be cleared in obtaining permits for Arctic exploration and development activities and certainly brings the U.S. legal requirements closer to those of Norway. Shell, the first company to receive approval for an exploration plan in the U.S. Arctic since the Deepwater Horizon blowout included in its plans special response vessels, a stand-by rig for relief well drilling, and other resources to provide rapid response in the case of a spill or blowout.67 This level of preparedness may become a standard requirement for any operations in the U.S. Arctic, where response capabilities are currently much more limited than in the Gulf. That said, BOEM's and BSEE's resources have been called into question as to their effectiveness at evaluating operators' response capabilities and enforcement of the regulations on the books. III. Ability of Citizen Groups to Bring Challenges The other major factor to be considered in evaluating environmental permitting for new Arctic exploration and development is the ability of citizen groups to bring legal challenges that can impose significant delays in the permitting process. As described in the sections below, the powerful citizen suit provisions of United States' environmental laws create an avenue for third parties to challenge permitting decisions and delay planned exploration and development. While both U.S. and Norway's systems provide for public hearings throughout the licensing and permitting process, the U.S. citizen suit provisions provide a much more potent opportunity for the individuals to voice their opposition to offshore development and halt such development despite a governmental approval. As the regulatory regime in the U.S. moves closer to the stringent requirements of Norway, the complications that arise from citizen suits could, on balance, render the U.S. a less attractive location for Arctic exploration and development. Given the sensitivity of the Arctic ecosystem, environmental groups have already begun and will certainly continue to bring legal challenges in an attempt to halt Arctic exploration and development. This Part describes the two main statutes under which citizen suit challenges have been brought and provides a discussion of ongoing suits. This Part then describes the more limited right of public challenge that is available under Norway's Public Administration Act. In the United States, individual citizens or citizen groups may file citizen suits and act as "private attorneys general" to enforce environmental laws against both the federal government and private parties. Most major environmental laws contain a citizen suit provision that expressly authorizes suits against the federal government for failure to perform certain non-discretionary duties under the statute and against private parties for particular violations of the law or permits required thereunder.68 The basic idea of the citizen suit is that private citizens may supplement agency enforcement where the government's resources are too limited to prosecute all violators of environmental laws.69 Citizen suits have played a significant role in environmental enforcement in the United States: reportedly seventy-five percent of all environmental civil suits filed between 1973 and 2002 were citizen suits.70 A. National Environmental Policy Act The National Environmental Policy Act ("NEPA") applies to all major federal actions significantly affecting the human environment.71 Major federal actions include the issuance of federal permits, use of federal funds, and federal policy decisions that result in the irretrievable commitment of resources.72 Therefore, NEPA applies not only to the creation of 5-year leasing plans but also to BOEM's decisions to approve individual exploration and development plans. NEPA requires that the environmental impacts of a project and alternatives, including the no action alternative, must be evaluated, but it does not require the agency to take any particular course of action once the environmental impacts have been assessed.73 For each action that may have a significant impact on the environment, the federal agency must conduct an environmental assessment. The outcome of the environmental assessment will either be a finding of no significant impact, allowing the agency to proceed to make its decision on the project, or a decision to undertake a full environmental impact statement. Should an environmental impact statement be required, it can take over a year to collect and assemble the requisite environmental data. While NEPA does not have a citizen suit provision, an agency's failure to follow NEPA's required procedures can be challenged under the Administrative Procedures Act. A NEPA challenge typically alleges either that an agency opted for an environmental assessment when a full environmental impact statement was required or that the environmental impact statement (EIS) prepared by the agency was inadequate because it failed to fully consider all appropriate, relevant information. NEPA litigation can be a source of significant delays in the permitting process. The litigation itself causes delays, and furthermore, if the citizen-plaintiffs are successful in their suit, the court may choose to remand the decision to the agency for preparation of an EIS or supplemental EIS. While such additional analyses are ongoing, the agency cannot issue any permits that depend upon them. An important example of NEPA litigation regarding oil and gas activities in the Arctic is Native Village of Point Hope v. Salazar.74 The case concerns lease sale number 193, which was held by the Minerals Management Service (now BOEM and BSEE) in February 2008. In their suit, a coalition of native Alaskan groups and environmental groups challenged the adequacy of the environmental impact statement covering the 5-year leasing program for the Chukchi Sea. Plaintiffs alleged that the EIS was inadequate for a number of reasons, including a failure to include essential missing information about the Chukchi Sea and a failure to evaluate the lease sale's impact in the context of a warming climate.75 On July 21, 2010, the District Court of Alaska issued a preliminary decision remanding the EIS to BOEMRE for the incorporation of additional public comment and analysis of a hypothetical very large oil spill scenario.76 The court order further enjoined all activity under lease sale 193 until BOEMRE corrected the deficiencies in its EIS.77 This injunction was limited by an August 5, 2010 order in which the court stated that the injunction "does not apply to activities outside of Lease Sale 193 or to organizations not a party to this lawsuit, nor does it preclude BOEM78 from issuing permits under its permitting authorities to Statoil or others or prohibit routine paper transactions relating to Lease Sale 193."79 BOEMRE released a draft Supplemental Environmental Impact Statement ("SEIS") in October 2010 for public comment and a revised version of the draft in May 2011.80 The agency issued a final supplemental EIS on August 18, 2011, ahead of the court's October 3rd deadline.81 This suit resulted in an almost four-year delay from the time of the original sale. Similar efforts to halt Shell's exploration plans in the Beaufort Sea have begun as well. In September, certain environmental groups along with the Village of Point Hope filed a petition with the Ninth Circuit for review of Shell's offshore exploration plan for the Beaufort Sea tentatively approved by BOEMRE on August 4, 2011.82 The petition challenges this approval of the exploration plan under both NEPA and OCSLA. B. Endangered Species Act The Endangered Species Act ("ESA") provides protection for species listed as engendered or threatened. Among these protections are the designation of critical habitat for all endangered species and the prohibition on take of species.83 "Take" is broadly defined under the ESA and can include killing, harming, harassing, or even disrupting the habitat of a listed species.84 The ESA requires that a federal agency considering an action that may impact an engendered or threatened species consult with either the U.S. Fish and Wildlife Service ("FWS") or National Marine Fisheries Service ("NMFS") before taking a final action.85 If impacts are expected to be insignificant, such consultation may be informal. However, in most cases, the consultation will require FWS or NMFS to issue a biological opinion detailing the potential impacts of the proposed action on an endangered species and its designated critical habitat. The project may proceed only if the biological opinion concludes that the proposed action will not jeopardize the continued existence of the species.86 If a private party plans to engage in an activity that may result in the take of an endangered species, it must obtain an incidental take permit.87 The ESA has an express citizen suit provision that permits citizens to sue to enjoin any person from taking an endangered species or compel the United States to comply with the requirements of the Act.88 Environmental groups have often filed ESA challenges to offshore oil and gas activities that will impact listed marine mammal species. In fact, several groups have filed a notice of intent to sue Interior, BOEMRE, the NMFS, and the FWS for violating the Marine Mammal Protection Act ("MMPA") and the Endangered Species Act when approving ten projects in the Gulf of Mexico.89 Plaintiffs allege that the agencies' approval of these activities violated the ESA and MMPA because the approvals are agency actions that require consultation with NMFS under the ESA and results in a "take" of marine mammals without the authorization of the NMFS. In addition, the Southern Environmental Law Center filed a suit on behalf of Defenders of Wildlife challenging 221 drilling leases issued since the Deepwater Horizon incident because BOEMRE allegedly did not consider the impact of the spill in its environmental reviews of the leases.90 They cite both NEPA and the ESA in that suit. Given the significant number of endangered species in the Arctic, including the recently-listed polar bear, that are characterized as under threat from a number of other environmental stressors such as climate change, it is reasonable to expect numerous citizen suits will be filed with respect to the potential endangered species impacts of Arctic exploration and development. In addition, the other required procedures of the ESA may introduce additional delays in permitting. For example, Shell's newly-approved exploration plan for the Chukchi Sea is a conditional approval that does not permit any exploration activities until critical habitat consultation for the polar bear is completed. Even after the critical habitat consultation is completed, there is a risk of a citizen suit challenge, in part because such lawsuits are so easy to file in the U.S. C. Petitions for Review under Norway's Public Administration Act In contrast to the citizen suit system in the United States, a citizen's right to seek review in Norway is limited. Norway's Public Administration Act provides certain limited rights for agency review and public challenge but not for judicial review. Review of Activities under the Pollution Control Act expressly arises under Norway's Public Administration Act.91 Given the structure of the Public Administration Act, it would also appear that decisions made under the Petroleum Industries Act could be challenged. The Public Administration Act permits individual administrative decisions to be appealed by a party or any other individual with a legal interest in the case.92 The Act specifies that such appeals will be made to the next most senior agency.93 In the case of the Pollution Control Act, decisions taken by the Pollution Control Authority may be appealed to the Ministry of the Environment.94 Review of decisions by the National Petroleum Directorate under the Petroleum and Resource Management Regulations can be appealed to the Ministry of Petroleum and Energy.95 Unless otherwise provided by the King, the Public Administration Act prohibits additional appeal beyond the first agency appeal, meaning that there is no right to judicial review of an agency decision made under the Act.96 As neither the Pollution Control Act nor the Petroleum Activities Act provides an independent means for citizens to seek judicial review, the right of citizens to challenge agency decisions related to exploration and development in the Arctic is limited to a single administrative appeal. Furthermore, the Public Administration Act requires that any such appeal be filed within three weeks of the date of notification of an administrative decision.97 Furthermore the most important aspect in shaping whether citizen suits will be filed may be the structure of Norwegian petroleum governance as a whole rather than the existence of legal means by which a challenge may be brought. In a recent presentation, the Norwegian Minister of Foreign Affairs highlighted Norway's leadership role in the development of ecosystem based management in the Arctic,98 and that Norway views its participatory resource governance model as a major strategic resource to be exported.99 Thus, it is possible that Norway's governance structure, which employs a system that evaluates competing uses and emphasizes public dialogue may result in regulatory decisions that are less likely to be challenged. Therefore companies wishing to pursue exploration and development in the Norwegian Arctic face a much lower risk of delay from citizen challenges. IV. Conclusions Norway has traditionally had a more stringent regulatory system governing offshore drilling and oil response responsibilities than the United States. However, changes to the permitting approval process in the U.S. post-Deepwater Horizon have made U.S. requirements tougher. Even so, the two systems differ in that Norway places primary legal responsibility for cleanup with the operators while the U.S. primarily places financial responsibility with the operators and responsibility for organizing the response with the government. As the two countries' regulatory requirements become more comparable, the differences in the possibility of facing citizen suits may become a more important distinction for operators. The long delays in obtaining clearance to drill that operators can face from citizen suits in the United States can make operating in the U.S. Arctic less predictable and thus less attractive than similar operations in Norway, which limits this type of challenge in its system. Norway's lack of judicial review opportunities mean that permitting and licensing decisions do not face the possibility of such lengthy delays. In addition, questions of funding and resources continue to plague the U.S. system, limiting Coast Guard response capabilities and slowing down the permitting approval process. This uncertainty may also encourage operators to look to a more stable and established offshore regulatory system such as Norway's, particularly when paired with the limited ability to challenge governmental permitting and approval decisions. Additionally, environmental factors such as the greater accessibility and lack of sea ice in the Norwegian Arctic may make it a more inviting location within which to operate. With back-to-back chairmanships, it gives both countries an opportunity to increase cooperation on initiatives that could enhance the development of a shared North American vision for the Arctic. The U.S. has significant geopolitical and economic interests in the high north and have released a new national strategy which seeks to advance their Arctic ambitions. While the region has thus far been peaceful, stable and free of conflict, there is a danger of the militarization of the Arctic. It has the potential to become a front whereby the U.S. and other NATO members are pitted against Russia or even China. In an effort to prevent any misunderstandings, there are calls for the Arctic Council to move beyond environmental issues and become a forum to address defense and security matters. In May, Canada assumed the chairmanship of the Arctic Council where they will push for responsible resource development, safe shipping and sustainable circumpolar communities. The Arctic Council is the leading multilateral forum in the region and also includes the U.S., Denmark, Finland, Iceland, Norway, Sweden and Russia. During the recent meetings, members signed an Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic which seeks to improve coordination and planning to better cope with any such accidents. In addition, China, India, Japan, Singapore, South Korea, along with Italy were granted permanent observer status in the Arctic Council. With the move, China has gained more influence in the region. The potential for new trade routes that could open up would significantly reduce the time needed to transport goods between Europe and Asia. The Arctic is an important part of China’s global vision, as a place for economic activity and a possible future mission for its navy. In order to better reflect the realities of politics in the high north, there are calls to expand the Arctic Council’s mandate to also include security and military issues. Writing for the National Post, Rob Huebert of the Canadian Defence and Foreign Affairs Institute explained that, “One issue that has not received much attention is the need to discuss the growing militarization of the Arctic. While the Arctic Council is formally forbidden from discussing military security in the Arctic, the time has arrived to rethink this policy.” He went on to say, “The militaries of most Arctic states are taking on new and expanded roles in the region that go beyond their traditional responsibilities, which may create friction in the region.” Huebert also stressed that, “These new developments need to be discussed to ensure that all Arctic Council member states understand why they are occurring, and increase the confidence of members that these new developments are not about a conflict in the Arctic, but about the defence of core strategic interests.” He further added, “It is easy to see how both the Americans and Russians will become increasingly concerned about the security steps that the other is taking. But now is the time for all to openly discuss these developments so that old suspicions and distrusts do not resurface.” As part of efforts to strengthen Arctic security cooperation, in June, the Northern Chiefs of Defence Meeting was held in Greenland. It brought together representatives from the U.S., Canada, Denmark, Russia, Sweden, Norway, Finland and Iceland. Gen. Charles Jacoby, Commander of North American Aerospace Defense Command (NORAD) and U.S. Northern Command (USNORTHCOM) also attended the event. The second annual gathering was used as an, “opportunity for direct multilateral and bilateral discussions focused on Northern issues. Topics discussed included the sharing of knowledge and expertise about regional operational challenges; responsible stewardship of the North; and the role Northern militaries can play in support of their respective civil authorities.” The Northern Chiefs of Defence meeting has become an essential forum to address common Arctic safety and security concerns. Ahead of Secretary of State John Kerry’s trip to attend the Arctic Council Ministerial Session in May, the White House unveiled a National Strategy for the Arctic Region. It outlined strategic priorities including advancing U.S. security interests, pursuing responsible stewardship and strengthening international cooperation. The document acknowledged competing environmental and economic goals, but in the end sets an aggressive agenda for the exploitation of Arctic oil, gas and mineral reserves. In addition, the strategy recommended enhancing national defense, law enforcement, navigation systems, environmental response, as well as search-and-rescue capabilities in the Arctic. It also builds off of National Security Presidential Directive-66 issued by the Bush administration in 2009. In coordination with the new plan, the U.S. Coast Guard has released their Vision for Operating in the Arctic Regionwhich will work towards improving awareness, modernizing governance and broadening partnerships. According to James Holmes, professor of strategy at the U.S. Naval War College, the Coast Guard and Air Force could become the military’s odd couple in defending America’s Arctic front. Several months back, Congressman Don Young testified in front of Armed Services Committee in support of Alaska national defense priorities. He proclaimed, “We must be able to project power into the Arctic environment and extensive Arctic training is needed to do that.” Some have pointed out that the true nature surrounding U.S. plans to shift additional missile interceptors to Alaska is not to protect against a North Korean threat, but is instead aimed at control over Arctic resources. Meanwhile, there have also been renewed discussions about Canadian participation in the U.S. anti-ballistic missile shield, a move that could damage relations with Russia and China. In order to enhance its presence and security in the Arctic, the U.S. is increasing cooperation with Canada. This includes expanding joint military exercises and intelligence gathering operations in the region. Professor Michel Chossudovsky of Global Research has described Washington’s militarization of the Arctic as part of the process of North American integration. In December 2012, the U.S. and Canada signed the Tri-Command Framework for Arctic Cooperation which is part of efforts to further merge USNORTHCOM, Canadian Joint Operations Command (CJOC) and NORAD. A press release explained that the framework is designed to, “promote enhanced military cooperation in the Arctic and identify specific areas of potential Tri-Command cooperation in the preparation for and conduct of safety, security and defense operations.” USNORTHCOM, CJOC and NORAD have also pledged to work closer together with regards to planning, domain awareness, information-sharing, training and exercises, capability development, as well as in the field of science and technology. In the coming years, the Arctic will become an even more important part of North American perimeter security. While the Arctic remains a region of strategic interest to the alliance, Secretary General Anders Fogh Rasmussen recently rejected a direct NATO presence. For a number of years, Norway has been pushing for NATO to increase its focus in the Arctic and have called for more joint northern exercises. Even though NATO has yet to truly define its role in the area, Arctic member countries are stepping up military and naval operations in the high north. In the future, NATO’s mandate could include economic infrastructure and maritime security. It could also serve as a forum for discussing Arctic military issues. Expanding NATO activity in the region might signal the militarization of the Arctic which could raise tensions with both Russia and China. There are fears that the Arctic could become an arena for political and military competition. With potential new shipping routes and countries further staking their claims to the vast untapped natural resources, defending strategic and economic interests may lead to rivalries in the region. There is also the possibility that conflicts which originate in other parts of the world could spillover and affect the stability of the Arctic The Obama Administration’s decision earlier this year to withdraw plans to develop or deploy the Phase VI interceptors of the NATO system was an important nod to Russian concerns, but that was followed by an announcement that the US would add another 14 interceptors in Alaska, bringing the total there to 40. In effect, a US/NATO signal of modest restraint in Europe was accompanied by a significant, 50 per cent, expansion in Alaska. The change of plans in Europe is good news from the point of view of nuclear disarmament advocates inasmuch as it will help make the Russians more amenable to joining President Obama in pursuit of a new round of nuclear arms reduction talks. But the Alaskan expansion, at a cost of $1 billion (a distinctly modest sum in the Pentagon’s world), keeps strategic BMD alive (if not well, from the point of view of performance), and an ongoing thorn in US-Russian security relations. The 40 Alaskan interceptors are of concern to Russia, not for what they represent now (40 interceptors of dubious reliability are not a threat to a strategic deterrent of 1,500-plus warheads), but for what they could become. Russia also has concerns specific to the Arctic. In 2009 Russia’s envoy to NATO worried that with Arctic ice in retreat, NATO is poised to advance into the region, and, more particularly, US ships with strategic missile defence capabilities could potentially be deployed there as well.10 Russia fears the Americans could potentially exploit further reductions in Russia’s arsenal with a dramatic surge in BMD interceptors rendering Russia’s deterrent ineffective. In response, as Russia’s Deputy Prime Minister was recently reported as saying, Russia has been led to carry out a “rearmament program” that will not involve new deployments now but will make it possible for Russia to undertake rapid expansion if conditions change.11 The American pro-BMD constituency has been trying to draw heightened attention to what some accounts describe as Russian military operations to simulate monitoring and attacks on US missile defence assets. The Washington Free Beacon blog has a lengthy April 2013 account, also published in the Washington Times,12 which quotes US officials as saying the Russians have simulated attacks on missile defences in Asia and against ground-based interceptors in Alaska. It also claims that a new Russian reconnaissance ship, the Yuri Ivanov13, which is to begin service in 2014, will be tasked, among other things, to monitor US missile defence installations in Alaska.14 China, is also giving growing voice to its BMD concerns. The Chinese concern is not focused on the European- based interceptors, but on Aegis systems in the Pacific and on Alaskan interceptors. Both systems represent a much more immediate threat to China’s minimum deterrent force of fewer than 50 missiles that could reach North America. Chinese experts recently told the Wall Street Journal that China “was likely to respond to the US missile defense plans by upgrading plans to modernize China’s relatively small nuclear arsenal.” A Major General at China’s Academy of Military Science notes: “The current development, especially the deployment of missile-defense systems in East Asia would be, in Chinese eyes, a very, very disturbing factor having implications for the calculation of China’s nuclear and strategic arsenal.”15 And Chinese concerns will only heighten when they see comments like the following, from a US military official, that the US is explicitly planning to be able to surge deployments of the Aegis system: “Part of what’s in the budget is to get us a sufficient number of ships to allow us to have a global deployment of this capability on a constant basis, with a surge capacity to any theater at a time.”16 As the Bulletin of the Atomic Scientists puts it, “while the intention behind US missile defense is not to threaten Russia or China’s ability to strike the United States with nuclear weapons, both Russia and China fear otherwise. Moscow’s concerns about US missile defenses in Europe appear to be the main stumbling block to further bilateral US and Russian nuclear arms reductions. China, meanwhile, is concerned that the expansion of US regional defenses in East Asia is designed to counter both North Korea and China’s growing arsenal of conventionally-armed theater ballistic missiles, and could be augmented by long-range interceptors that would threaten its strategic nuclear deterrent.”17 US-Russian and US-Chinese18 tensions over BMD do not make it easier for them to cooperate in other contexts, such as Syria, and it would be unrealistic to assume that these tensions will not also at some level undermine cooperation in the Arctic. Direct linkages are unlikely and would not be helpful, but, as a Chinese Foreign Ministry spokesperson recently told reporters in Beijing in response to the announcements of additional interceptors to be deployed in Alaska: “Strengthening anti-missile deployments and military alliances can only deepen antagonism and will be of no help to solving problems.”19 He was not referring to the Arctic, of course, but there is no reason to believe that the Arctic would somehow be exempt from the effects of such antagonisms. The pursuit of an Arctic security community is, to say the least, not bolstered by BMD dynamics. It is impossible to expect full cooperation within the context of an Arctic security community when those same states are at loggerheads on other issues in other regions of the globe (especially when much of the hardware at the heart of those disagreements – interceptors in Alaska, radars in Greenland, and nuclear weapons in Russia – are based in the Arctic). Ending BMD unilateralism is important for many reasons, most especially for issues related to global strategic dynamics and nuclear arms control and disarmament – and it is important for the Arctic as well. It would be a significant strategic miscalculation and a confusion of priorities to allow a major and expensive weapons system of dubious technical capability to absorb scarce resources. It is doubly significant when that same system serves to undermine the urgent and absolutely necessary spirit of cooperation on which positive development in the Arctic depends for there to be constructive progress on a broad range of environmental and security issues. | 10/5/13 |
Cites round 6 HarvardTournament: Harvard | Round: 6 | Opponent: California, Berkeley Wimsatt-Sergent-Leventhal | Judge: Gannon The United States courts have experienced the impact of globalization in many ways. With increasing frequency, litigation involves evidence located abroad, foreign law, and international treaties, putting judges in contact with legal issues from around the world. This has, in turn, inspired in U.S. judges a growing interest in the legal world outside their jurisdiction, with many American judges hosting visits from foreign jurists and participating in conferences and technical assistance projects abroad. These international exchanges are much valued and mutually rewarding, enabling judges to exchange insights about the challenges and rewards of a judge’s role in preserving the rule of law. The U.S. judiciary has much to share, with its long history of independence, its developed jurisprudence, and its rich experience with administering a large and diverse court system. Each year the United States hosts well over 2,000 judges and lawyers from abroad. In 2012, the Supreme Court of the United States received more than 800 visitors representing over 95 countries. Among these were justices from the supreme courts of Morocco, Kosovo, and the Philippines. Judicial delegations from other countries do not visit only Washington. Federal courts all over the United States host visiting judges, providing an opportunity to observe trials, learn about courtroom technology and speak with their U.S. counterparts about the role of a judge in the United States. More than 150 judges and court officials visited the Massachusetts District Court in 2012, including judges from Romania, Brazil, and China; California's Northern District Court in San Francisco also hosts judges and court officials from other countries, with more than 15 delegations visiting the court each year; six judges from Jordan were among the visitors to Utah's District Court in 2012. In some cases judges from other countries participate in extended professional exchanges as interns or "guest research judges." The Massachusetts court has hosted judges from South Korea, China, and Turkey for such longer visits; these programs enable the visiting judges to acquire a more in-depth understanding of U.S. judicial practice, observe different phases of court proceedings, and learn about the legal research and judgment drafting process. Despite the diversity of the countries represented, the questions that emerge during these exchanges resonate with a single theme: How can judges and judicial systems work more effectively? Visiting judges want to know about judicial administration, strategies U.S. judges have employed to manage their caseloads efficiently, developing training for judges and court personnel, and the U.S. experience with implementing and enforcing a judicial code of conduct. During visits, foreign judges observe a broad range of proceedings: case conferences, criminal case arraignments and bail hearings, trials, oral arguments, and bankruptcy proceedings. Perhaps most importantly, visiting judges have the opportunity to speak one-on-one with U.S. judges. This judge-to-judge sharing of experience provides visitor and host alike useful insights about judging. Common Bonds Certainly, both visitor and host are impressed with their shared sense of role and mission, despite differences in their countries’ legal traditions, mechanisms of adjudication, and resources. Throughout the world, it is the judge’s responsibility to maintain the dignity of court proceedings and ensure that the rights of litigants are respected. Judges often discover that the great burden of this responsibility, and the often solitary avocation of judging, is a cross-cultural phenomenon — a realization that enables an ease of communication with their colleagues from other countries. This openness enables these conversations to lead to candid exchanges about the benefits and disadvantages of different judicial systems. Judges visiting the United States are keen to learn about the many unique features of the U.S. courts. Judges from countries without jury systems have the opportunity to observe jury selection and the trial process; they immediately note the difference between reality and Hollywood’s depictions, and they often admire the relationship of mutual respect that develops between the jurors and the judge. Similarly, U.S. judges, deeply acculturated to the common law tradition, are often surprised to learn about the duties and powers of an investigative judge in civil law countries. They are also intrigued with the very different orientation of court proceedings that rely more on paper submissions by attorneys than the taking of oral testimony in court. Such conversation and debate among jurists may best be initiated by a discussion of vocabulary, as many of the terms of art that define legal systems (trial, appeal, plea bargain) may have different meanings. Visitors to the U.S. courts often comment on the deep-rooted tradition of judicial independence in the United States and the many practical and physical advantages this confers on a judge’s work. One significant advantage enjoyed by federal judges in the United States is their life tenure — a tenure protected from political caprice and unrest. The U.S. courts are also well resourced, with a number of new courthouses, extensive automation, and administrative agencies and staff that greatly facilitate a judge’s work. A judiciary well informed of the rapidly expanding boundaries of environmental law and law in the field of sustainable development, and sensitive to their role and responsibilities in promoting the rule of law in regard to environmentally friendly development, would play a critical role in the vindication of the public interest in a healthy and secure environment through the interpretation, enhancement and enforcement of environmental law. n9 However, staying abreast of the complex and rapidly changing environmental issues can be difficult for individual judges. Further confounding the work of judicial bodies, most environmental harms involve complex science and - especially those brought about by climate change - do not conform to jurisdictional boundaries. This requires judicial bodies to coordinate and collaborate in ways to which judges may be unaccustomed or uncomfortable. n10 As stated in the United Nations Environment Programme (UNEP) GEO-4 Report, the environmental "issues brought about by climate change transcend borders. Protecting the global environment is largely beyond the capacity of individual countries. Only concerted and coordinated international action will be sufficient. The world needs a more coherent system of international environmental governance." n11 *545 In 2002, the participants of the Global Judges Symposium on Sustainable Development and the Role of Law in Johannesburg, South Africa, organized by INECE and UNEP, concluded that: The deficiency in the knowledge, relevant skills and information in regard to environmental law is one of the principal causes that contribute to the lack of effective implementation, development and enforcement of environmental law.' ... There is an urgent need to strengthen the capacity of judges, prosecutors, legislators and all persons who play a critical role at national level in the process of implementation, development and enforcement of environmental law ... . n12 Recognizing the importance of the judiciary, INECE works with judicial bodies around the world to help develop a global judiciary, which is well-informed of the rapidly expanding boundaries of environmental law and law in the field of sustainable development, and sensitive to their role and responsibilities in promoting the rule of law in regard to an environmentally friendly and secure environment through the interpretation, enhancement, and enforcement of environmental law. INECE also supports jurists in making administrative procedure changes to better support environmental enforcement. INECE will continue to reinforce and advance this message in the Rio + 20 process this summer and beyond. B. Environmental Courts and Tribunals One significant development in recent decades is the emergence of "green courts" - environmental courts and tribunals that specialize in the adjudication of environmental disputes. They allow governments to address environmental and closely related socio-economic issues that require significant specialized knowledge. Qualifications for serving as part of an environmental court and tribunal frequently require training in environmental science and other technical fields. They exist not *546 only for the prosecution of environmental crimes, but civil cases as well, and often must balance environmental and economic considerations. In all countries where environmental courts and tribunals are present, their availability is highly dependent on the threshold issue of standing. Local or national laws determine the types of claims that an environmental court and tribunal is authorized to hear and dictate the eligibility criteria for access to these decision-making bodies. A study by the Access Initiative has identified over 350 environmental courts and tribunals in forty-one countries and on every continent, including 117 created in the Philippines in 2008. n13 They take many forms and either consists of formal elements of the judicial branch of governments (courts) or bodies that are not part of the judicial branch, but have authority to issue binding decisions in environmental disputes (tribunals). n14 The Access Initiative study concluded that there is no optimal "one-size-fits-all" model for environmental courts and tribunals but that the most effective form for each country should be driven by factors that include the type of laws, legal institutions, cultural, and socio-economic conditions prevalent in each national jurisdiction. n15 The diversity of environmental courts and tribunals is best illustrated by several examples. The Land and Environment Court in the state of New South Wales, Australia, is a stand-alone court that is part of the judicial branch of government. It has comprehensive authority to address issues that integrate environmental and land-planning concerns and is empowered to issue civil, administrative, and criminal rulings. n16 The court makes extensive use of internally selected independent experts who have scientific or technical credentials. n17 *547 In contrast, Brazil's state and federal environmental courts do not have authority to integrate land use planning issues into their decisions on criminal cases (although they have civil and administrative jurisdiction). n18 However, Brazilian judges have significant leeway to fashion creative remedies in environmental cases and are recognized for being relatively insulated from political pressures. n19 A unique fixture in environmental cases in Brazil is the office of public environmental prosecutors (Ministerio Publico), which is largely independent of the three branches of government and has substantial powers to autonomously and aggressively pursue environmental actions, work closely with NGOs, or respond to a claim filed by the public. n20 Some environmental courts and tribunals have only recently been implemented. In India, the National Green Tribunal Act of 2010 authorized the development of institutional capacity for domestic environmental governance, including the implementation of a national green tribunal that is staffed by judicial and expert members for issuing rulings on environmental controversies. n21 The Tribunal, which became operational in summer of 2011, is expected to play a dominant role in leading the development of environmental compliance and enforcement mechanisms, but is likely to require significant capacity enhancements before it can make inroads in improving compliance with India's environmental laws. Efforts to build a green court are advanced in Kenya and in several Asian countries as well. Despite the advantages that environmental courts and tribunals offer over non-specialized civil and criminal courts, their availability only represents a first step towards preventing and providing effective redress for environmental harms. The *548 means for enforcement must be available in order to give effect to the decision of an environmental court or tribunal. This may prove difficult in practice where there is insufficient capacity on the part of government agencies, in terms of training, experience, level of staffing, or political will to implement the actions necessary to accomplish this. In many countries, judges and prosecutors will require additional training and resources in order to consistently fashion decisions that can be enforced. The engagement of senior judges, prosecutors, and attorney generals in international networks has proven to be one highly effective tool for enhancing their abilities to shape the ultimate outcome in environmental disputes. IV. THE ROLE OF INTERNATIONAL NETWORKS IN FACILITATING COOPERATION AMONG THE JUDICIARY Cooperation among governmental officials dedicated to strengthening environmental governance has numerous benefits for achieving common goals. Cooperation, whether through formal structures or through informal networks, can help resolve and prevent trans-boundary environmental problems, create efficiencies in the development of tools and programs, and help create a level playing field for regulated industries. n22 In the example of INECE, its work over the past twenty years in fostering collaboration among officials has resulted in informal relationships that have provided a number of advantages. These include the ability to address trans-boundary environmental crime, n23 the increased recognition of the relationship between environmental enforcement and sustainable *549 development, n24 and the collaborative development of new tools for strengthening institutions to assure compliance. n25 These same principles apply to collaboration among members of the judiciary, whether at a national or international level, which can aid in the transmission of advances in environmental sciences and provide a forum for members of the judiciary to exchange information on environmental law relevant to their decision making. As the United Nations Environment Programme recognizes, "because environmental violations very often have transboundary aspects, however, judicial proceedings addressing such violations will also have international aspects and will benefit from cooperation between the relevant judges." n26 Global judicial networking can promote the exchange of ideas between court systems, enable informal peer-level oversight, and encourage and empower members of the judiciary who are engaged in environmental decision-making. Anne-Marie *550 Slaughter describes the benefits of both horizontal communication (between courts of the same status) and vertical communication (between national and supranational courts), noting that: ... horizontal judicial communication can play a further role in promoting the acceptance and effectiveness of international obligations. In a situation in which a number of states are contemplating acceptance of a particular international legal obligation, references to the activity of fellow courts in other states can act as both a security blanket and a stick. n27 In the two decades since the Rio Earth Summit, members of the judiciary, including judges, prosecutors, attorney generals, and other legal professionals have been central participants in the use of international networks to share knowledge, build consensus on best practices, and develop a basis for broader cooperation in dealing with environmental cases that transcend international boundaries. Moving into the future, INECE and its global networks will continue to play a role in helping to formulate a more systematic approach in addressing the role of the judiciary in promoting environmental compliance and enforcement. INECE through its networks can promote and expand the basis for standing for civil society groups and assist in promoting judicial awareness of the need for strong enforcement of environmental cases. A meeting of the Presidents of Supreme Courts and Chief Justices, convened at the 2002 Johannesburg Summit, provided the impetus for one of the first international networks of judges dedicated to addressing environmental issues. In order to implement the resolutions adopted at that meeting, UNEP organized a series of regional conferences. An important outcome of this process involved a decision by European judges creating a permanent network in February 2004: the European Union Forum of Judges for the Environment. The Forum's mission is to promote better enforcement of national, European, and international environmental law through programs aimed at *551 strengthening judges' knowledge of environmental law, encouraging the exchange of judicial decisions, and collaborating to develop effective training in environmental law. The European Union Forum of Judges for the Environment has also taken a leading role in spreading the benefits of networking beyond Western Europe, pioneering initiatives in South Eastern Europe and Central Asia. Although regional networks have established new channels for effective regional cooperation, many of today's environmental challenges are global in scale. On June 20, 2011, the Global Network of Environmental Prosecutors, launched (by a diverse group of prosecutors) in response to the conclusion that internationally organized crime calls for an internationally organized prosecution. n28 This new network is an outcome of a joint work program carried out by INECE and the IUCN. It also builds on the experience of existing networks, such as the Latin American Environmental Prosecutors Network and the European Network of Prosecutors. The network will contribute towards compliance with international and national laws aimed at protecting flora and fauna, marine and terrestrial ecosystems, and habitats. V. FURTHER STEPS Initial groundwork has been laid for a new era of international cooperation between members of the judiciary. The 2011 INECE Conference at Whistler resulted in a call to action to facilitate continued collaboration among key participants, including judges, prosecutors, civil society, and the private sector to work toward strengthening mechanisms for environmental compliance and enforcement. n29 Some of these action items include promoting the importance of green courts in enforcing environmental law, jointly developing methods to stimulate effective cross-border information sharing mechanisms for *552 detecting and deterring illegal operations, and better integrating and expanding the role of academia into this work. n30 In June of 2012, the United Nations Conference on Sustainable Development (Rio+20) will offer members of the judiciary from around the world an opportunity to take international judicial cooperation on the environment further. In preparation for Rio+20, UNEP commenced a set of programs designed to strengthen that outcome. These include engaging senior members of the judiciary from around the world in identifying a common vision for using legal systems, the judiciary, and governance to promote sustainable development. n31 In a background document submitted in support of UNEP's effort, Gregory Rose highlighted that: The judiciary has, in recent years, enhanced enforcement efforts by governments to implement environmental laws. It plays a crucial role by interpreting legislation relating to environmental issues, integrating emerging principles of law within the holistic paradigms of sustainable development, providing a coherent and comprehensive strategy for integrating diverse sectoral laws into a cross-sectoral approach and for ensuring effective implementation of legislation. n32 After an initial high-level planning session in Stockholm in July, UNEP held its first preparatory meeting in Kuala Lumpur, Malaysia, on October 12 and 13, 2011. The meeting resulted in the "Kuala Lumpur Statement," n33 which provides a bold list of objectives that must be attained in order to put sustainable development goals into effect. Highlighting the need for representatives of the legal community to "take a more active role *553 to further their contribution" n34 toward reaching those goals, the statement's key objectives include strengthening recognition of the connection between social justice and environment, integrating non-governmental sectors (business and environmental NGOs), and taking steps to enhance public participation and access to justice. n35 A second preparatory meeting will take place in Buenos Aires, Argentina, in April of 2012. On the eve of Rio+20, UNEP will convene the World Congress on Justice, Governance and Law for Environmental Sustainability from June 1-3, 2012, in order to build international consensus among key participants which will include attorneys-general, chief prosecutors, auditors-general (cour des comptes), chief justices and senior judges. The World Congress will seek to establish a roadmap for concrete future actions that will be necessary to support the pursuit of sustainable development and to secure commitment for implementing them. VI. CONCLUSIONS Strengthening environmental compliance and enforcement requires the unwavering commitment of individuals and institutions everywhere. Of the many actors in the environmental compliance chain, the judiciary alone has a fundamental contribution to make in upholding the rule of law and ensuring that national and international laws are interpreted and applied fairly, efficiently, and effectively. Perhaps the most profound aspect of judicial leadership in strengthening institutions for environmental compliance enforcement is the judiciary's ability to influence public perception and discourse concerning environmental and social concerns. Courts have a powerful transformative effect on society. Scott Fulton and Justice Antonio Benjamin, prominent environmental judges from separate continents and cultures, *554 recently jointly commented that, "what judges treat as important, a society comes to judge as important." n36 Improved global collaboration between judges and prosecutors across an increasingly broad array of formal and informal networking channels has greatly increased opportunities for successful implementation of compliance and enforcement measures. Yet the success of global environmental governance depends on more than an environmentally trained and motivated judiciary. The same level of ambition that has been collectively voiced by senior judges in preparation for Rio+20 must be harnessed to translate generalized goals into concrete institutional changes, laws, and accountability mechanisms in nations around the world. The starting point for a discussion of how environmental laws apply to the Chinese military must start with China’s unique structure. The PLA consists of five military subgroups and is under the authority of the powerful Central Military Commission. Under China’s Constitution, most recently amended in 1982, the CMC of the People's Republic of China directs the armed forces of the country. Further, the CMC is composed of the Chairman, the Vice-Chairmen, and Members. The Chairman of the CMC has overall responsibility for the commission and the term of office of the CMC is the same as that of the National People's Congress. The Ministry of National Defense reports to the State Council, but does not exercise any independent control over the PLA. In theory, the National People’s Congress (NPC) exercises considerable control over the CMC, including electing the Chairman. But the reality is different. While the 1982 Chinese Constitution gives the National People’s Congress a prominent role, one commentator has noted that “it is little more than a rubber stamp for party decisions.” The CMC exercises de facto, authoritative policy-making and operational control over the military through the General Political Department of the People's Liberation Army (PLA). The head of the CMC is also the President of China, currently Hu Jintao. It is common for the President of China to continue to serve as head of the CMC for several years after stepping down as President. For example, President Jiang Zemin served as the head of the CMC for two years following his Presidency and it is anticipated that Hu Jintao will serve as the CMC head when Xi Jinping becomes China’s President. This further cements the centralization of power within select Communist Party officials that appear to have minimal practical accountability outside the party apparatus. 2. Chinese Environmental Law Against this backdrop, environmental legislative development in China has proceeded slowly, with the Environmental Protection Law (EPL) of the People’s Republic of China first issued in 1979 and subsequently amended and implemented in 1989. The EPL addresses natural resource protection through the “rational use of natural environment, prevention and elimination of environmental pollution and damage to ecosystems, in order to create a clean and favorable living and working environment, protect the health of the people and promote economic development.” The Chinese Constitution discusses the environment in Article 26: “the State protects and improves the environment in which people live and the ecological environment. It prevents and controls pollution and other public hazards. The State organizes and encourages afforestation and the protection of forests.” In all, there are nine major environmental laws and regulations adopted by the NPC Standing Committee and ten laws dealing with the protection of specific resources. Many of the Chinese environmental laws have approximate U.S. counterparts. For example, the “Law of the People's Republic of China on the Prevention and Control of Environmental Pollution by Solid Waste” roughly approximates RCRA and the “Law on Prevention and Control of Water Pollution” roughly approximates the Clean Water Act. These major Chinese environmental laws and regulations – with few exceptions - leave out any reference to the military or governmental agencies. Article 1 of the EPL states that it’s “formulated for the purpose of protecting and improving people's environment and the ecological environment, preventing and controlling pollution and other public hazards, safeguarding human health and facilitating the development of socialist modernization.” The EPL applies “to the territory of the People’s Republic of China and other sea areas under the jurisdiction of the People's Republic of China.” Article 6 contains a provision that could potentially provide for citizen-suit actions by Chinese citizens. It states, “All units and individuals shall have the obligation to protect the environment and shall have the right to report on or file charges against units or individuals that cause pollution or damage to the environment.” It is unlikely that this will occur in practice, however, as China lacks an accompanying citizen-suit statute or APA-stylized remedy. Article 7 of the EPL effectively allows the armed forces and other administrations to self-regulate (“conduct supervision and management”) via their internal environmental protection departments without a clear independent accountability. It states: The state administrative department of marine affairs, the harbor superintendence administration, the fisheries administration and fishing harbor superintendence agencies, the environmental protection department of the armed forces and the administrative departments of public security, transportation, railways and civil aviation at various levels shall, in accordance with the provisions of relevant laws, conduct supervision and management of the prevention and control of environmental pollution. There are legal liability provisions within the EPL to include criminal prosecution, yet, as discussed below, environmental enforcement has been lax and continues to undermine the overall environmental regime. For the first time in twenty years, the EPL is currently being rewritten. Yet, it appears that the new EPL lacks provisions allowing for lawsuits to protect the environmental public health and safety and does not address the military. Additionally, the Chinese Water Pollution Control Law states, “in the event of a large number of interested parties harmed by water pollution, the interested parties may select a representative to participate in the joint action.” Yet it remains highly unlikely that independent citizen groups (referred to as Civil Society Organization, or “CSOs,” in China) could successfully bring a lawsuit to enforce these provisions. The “Law of the People's Republic of China on the Environmental Impact Assessment” was adopted October 28, 2002, and imposes NEPA-like requirements to provide environmental impact assessments in the promotion of sustainable development. The jurisdiction includes the “territory of the People’s Republic of China or within other seas subject to the jurisdiction of the People's Republic of China.” Military construction projects are specifically mentioned in Art. 201: The measures for conducting environmental impact appraisals to the construction projects of military facilities shall be formulated by the Central Military Committee according to the present Law. This rather general provision reinforces the central role of the CMC in environmental management of the PLA without outside judicial or citizen accountability. China has also adopted a Marine Pollution Law, which, as written, appears to apply broadly to activities that would encompass the Chinese navy as it specifically applies to the internal sea, territorial seas, contiguous zone, continental shelves and other sea areas under the jurisdiction of the PRC. It states, “all units and individuals engaged in navigation, exploration . . . and other operations in the sea areas under the jurisdiction of the PRC, or engaged in operations in the coastal areas that have impact on the marine environment shall comply with the law.” Yet because Chinese military environmental stewardship is effectively self-governed by its own “environmental protection department,” Chinese laws lack the ability to provide for third-party oversight of its military activities. 3. Implementation and Enforcement The likelihood of citizen suits to enforce environmental regulations would not appear to be high if sought to be applied to the Chinese military. No citizen suits under Chinese environmental law have even been attempted against until fairly recently when a CSO named the “All-China Environmental Federation” sued a port container firm for violation of the “laws related to environmental impact assessment, and the prevention and control of air, water and noise pollution for alleged environmental violations.” Not surprisingly, there have been no citizen suit actions against any Chinese military activities. As discussed above, China has passed several environmental laws in the last thirty years, but they have been largely marked by ineffective implementation and enforcement. In China the low status of law as a means of achieving societal goals, the lack of capacity within the country’s bureaucracies and legal institutions, and its delegation of responsibility for environmental protection to local or administrative authorities has made effective overall environmental implementation difficult. To further highlight this, in the 2010 Yale/Columbia Environmental Performance Index ranks countries on environmental and public health performance indicators and serves as a gauge for how countries are matching up to their stated environmental goals. China ranked 116 out of 132 tracked countries. Further, China does not have a cooperative federalism model such as the one seen in the United States, for example, whereby states exercise considerable authority over their environmental enforcement and administration to include military activities in their state. At first blush, it appears that China has a broad environmental legal regime that could apply to military activities. The “People's Liberation Army Environmental Protection Ordinance of China,” issued by the CMC, states in its purpose statement: In order to regulate the environmental protection work of the armed forces, protect and improve the army management and use of the living environment of the region, the ecological environment, safeguarding human health, according to the relevant provisions of the Environmental Protection Law of the People's Republic of China and other environmental protection laws, the enactment of this Ordinance. Yet, it is unclear how the military practically applies the EPL and other Chinese national environmental law to the armed forces. Since 1979, China’s National People’s Congress and Standing Committee have passed 29 pieces of environmental legislation, nearly 10 percent of the total legislation passed in China. Yet despite these legislative gains, there appear to be enormous gaps in environmental law in China and its enforcement. Criminal enforcement is especially difficult because “as long as no major pollution of the environment, no major loss of property and no major injuries result, then there is no crime.” Penalties and enforcement practices are not a sufficient deterrent in itself. This can be attributed, in part to an overall lax enforcement of China environmental laws. Further, in enforcing environmental regulations, the judiciary has shown a reluctance to take on “sensitive or special cases, meaning they can refuse to let someone bring an action and leave them with no other options to pursue.” These generic problems of environmental enforcement are compounded when applied to the Chinese military, which essentially has the status of an independent entity that is accountable only to the CMC. It is not expressly subject to the environmental regulations adopted and amended by the NPC Standing Committee and PLA operates, essentially, as an independent entity that is outside the jurisdiction of Chinese environmental regulations. China has adopted a more sustainable model of environmental regulation, however, and there appear to have been some efforts underway within the CMC to address environmental stewardship in the PLA as a result. For example, the PLA has its own internal environmental regulations, such as the “People's Liberation Army Environmental Protection Ordinance.” Its purpose is to “regulate the environmental protection work of the armed forces, protect and improve the army management and use of the living environment of the region, the ecological environment.” It contains numerous noble environmental goals (e.g. “environmental protection work of the armed forces should be integrated into the army building and development plans”). Similar to the nine core environmental laws, it is unclear what legal effect these military guidelines have—they appear to be more of guiding documents without judicially enforceable standards. One report has noted a total of 835 Chinese “National Resources and Environmental Management” (NREM) policies, but only ten that apply to Chinese military installations without any history of outside judicial enforcement. China lacks any provision akin to the APA within U.S. law that allows citizens to bring legal challenges to “agency action” by China or Chinese officials. Absent such administrative protections, it is unlikely that the military will be fully accountable to any outside group or citizen group for violating its environmental laws. In many developing countries, the military is viewed as a necessary support for the state, and civilian authorities are often reluctant to impose restrictions on military activities. Yet in the long-term, this can be dangerous, and can lead to conflict and unrest. History is beset with numerous military-led coups due to the disproportionate power relationship that exists between the military and its civilian political leaders. Other nations of the world can learn from the American experience—in particular, from the robust judicial enforcement of U.S. environmental laws against the military. For example, while the Chinese military is theoretically accountable to the EPL and other core laws, enforcement appears weak as applied to the military making the PLA effectively outside the umbrella of broader national environmental regulation. There does not appear to be a practical judicial enforcement mechanism for citizens or citizen groups to bring lawsuits against a polluting military sector. As the Chinese economy and military sector grow, it is concerning that there is limited accountability while its military activities grow and continue to have a greater impact on the environment. Indeed, Chinese military environmental regulations appear to be entirely self-governing, begging two questions: (1) what practical environmental standards apply to the Chinese military?, and (2) what routes exist for the Chinese populace to hold its military accountable for environmental regulations? Unfortunately, Chinese environmental law today as practically applied to its military appears to share some similarities with the Soviet Union during the Cold War. As discussed above, under “the People’s Liberation Army Environmental Protection Ordnance,” the Chinese military “is accountable to the relevant provisions of the Environmental Protection Law,” but it is unclear how this accountability is implemented in practice given the apparent absence of citizen suits or judicial enforcement from Chinese law. The Soviet Union military was, essentially, exempt from its environmental laws throughout the Cold War. Perhaps not surprisingly, the Soviet military’s legacy of environmental stewardship was poor and this was further exacerbated by a secrecy-driven culture. The extent to which an environmental agency can effectively enforce environmental regulations frequently depends on the informal power relations among government officials and units. A major obstacle for effective enforcement of environmental regulations, for example, comes from the military and its service units and enterprises. Chan et al. (1993), for example, mentioned the difficulty the Guangzhou Municipal Environmental Protection Bureau encountered when it tried to undertake a site inspection of the Retired Air Force Personnel Recre- ation Club. The EIA system is dominated entirely by government agencies, without any forum and provision for public participation or consultation. All decisions in the process are made solely by bureau officials; no insti- tutional channels exist for the general public and those who are affec- ted by the proposed project to express their opinions and to raise objec- tions. Although laws in China provide for penalties or imprisonment for various environmental crimes, legal channels are seldom used for resolving environmental conflicts. Furthermore, no viable means exist for citizens to challenge government agencies' EIA decisions through legal channels. Sun Youhai, the Director of the Environmental and Resource Committee of the People's Congress provided an overview of the development of China's environmental law, moving from an early period of little regulation to framework laws and then progressive amendments and enactment of new laws to cover various modes of pollution and natural resource issues. He candidly identified the key weaknesses in the current scheme as: (1) lack of enforcement because local governments are so closely tied to and economically dependent (through their tax revenues) on the polluting industries; and (2) the lack of specific standards and implementing systems in the current laws. However, he expressed optimism that China could attain a stronger legal environmental protection regime due to greater public attention to the environment, a growing focus on public participation in environmental decisionmaking, and current government policies that favor building a harmonious society that integrates economic development, sustainability, human health and environmental protection. What was striking to this American observer was the strength of the pro-environment rhetoric coming from a Chinese official. Sun Youhai admitted that economic development is a strong force that often trumps environmental protection, but he then identified the need to have mechanisms in place to curb that impulse. He also gave credence to embodying into Chinese law such concepts as the precautionary principle, corporate social responsibility, and the polluter pays principle. And he touted the benefits of public participation as anti-environmental forces in the United States are poised to weaken the U.S. National Environmental Policy Act. The afternoon turned to China's 2003 Environmental Impact Assessment law with Wang Canfa, Professor at China University of Politics and Law and founder and director of the Center for Legal Assistance to Pollution Victims. He walked through the law's provisions with criticisms that echo those experienced under the U.S. National Environmental Policy Act. For example, a power plant divided its project into two components, neither of which warranted a full environmental impact assessment alone when such an assessment would be required by the project as a whole. He also lamented the fact that an environmental impact assessment does not compel the government to make the most environmentally sound decision and recounted an example where the government's analysis of an appeal supported canceling construction of a high-voltage electric line but it allowed the project to proceed in the end. While many of the issues resemble those still experienced in the U.S., China's law suffers from its early stage where implementation mechanisms are still not fully developed. When the law was adopted, a provision that would have allowed citizens to enforce the law's mandates was rejected. As a result, advocates like Professor Wang are struggling to create effective mechanisms for administrative and judicial review. The law's principal enforcement mechanism is currently in the hands of the government, which recently responded to criticism of its lack of enforcement by ordering approximately 30 projects to stop because they had proceeded without an environmental impact assessment. While the stop work orders may seem bold on the surface, they merely delayed most of the projects by a few weeks while additional paperwork was filed. The decision to proceed with the projects received little or no scrutiny in light of the tardy assessments. Chinese pollution causes CCP instability As pollution and environmental degradation in China worsens, the Communist government has been unable or unwilling to prescribe measures needed to address the problem. This inability carries grave consequences for China and Asia, threatening stability not only in China but throughout the region. There is little disagreement that China’s environment is a mounting problem for Beijing. China produces as many sulfur emissions as Tokyo and Los Angeles combined; China is home to 16 of the world’s 20 most polluted cities; water pollution reduces crop returns; air pollution is blamed for the premature death of some 400,000 Chinese annually; and solid waste production is expected to more than double over the next decade, pushing China ahead of the U.S. In spite of greater awareness, pollution and environmental degradation are likely to worsen. Chinese consumers are expected to purchase hundreds of millions of automobiles. Despite pledges to put the environment first, national planners still aim to double per capita GDP by 2010. Cities will grow, leading to the creation of slums and stressing urban sanitation and delivery systems The nation lacks a powerful national body able to coordinate, monitor, and enforce environmental legislation: the State Environmental Protection Agency (SEPA) is under-staffed, has few resources, and must compete with other bureaucracies for attention. To address the problems, it will take an aggressive effort by the central government to eliminate corruption, establish the rule of law and transparency, incentives and investment. As it stands, decision-making falls to local officials who are more concerned with economic growth than the environment. The deficiency of capital and the lack of will to promote massive spending on environmental repair make it difficult to be optimistic. Estimates on the final cost of environmental repair range into the tens of billions of dollars. As the impact of pollution on human health becomes more obvious and widespread, it is leading to greater political mobilization and social unrest of affected citizens. There were more than 74,000 incidents of protest and unrest recorded in China in 2004, up from 58,000 the year before. Pollution issues unite communities. The effects, though not equally felt by each person within a community, affect rich and poor, farmers and businessmen, families and individuals alike. As local communities respond to pollution issues through united opposition, it is leaving Beijing with no easy target upon which to blame unrest, and no simple option for how to quell whole communities with a common grievance. Moreover, protests serve as a venue for the politically disaffected unhappy with the current state of governance and may be open to other forms of political rule. For the Communist Chinese Party (CCP), social unrest has the potential to challenge the CCP’s total political control, thus potentially destabilizing a state with a huge military arsenal and a history of violent, internal conflict that cannot be downplayed or ignored. A further key challenge is trying to contain protests once they begin. The steady introduction of new media like cell phones, email, and text messaging prevent China’s authorities from silencing and hiding unrest. Domestic and international observers will be aware of unrest, making it far more difficult for local authorities to employ state-sanctioned force. While many would treat political change in China, especially the implosion of the Party, as a welcome development, it must be noted that any slippage of the Party’s dominance would most likely be accompanied by a period of transitional violence. Though most violence would be directed toward dissident Chinese, regional security would be affected through immigration, impediments to trade, and an increased military presence along the Chinese border. While unrest presents the most obvious example of a security threat related to pollution, several other key concerns are worth noting. The cost of environmental destruction could, for example, begin to reverse the blistering rate of economic growth in China that is the foundation of CCP legitimacy. Estimates maintain that 7 percent annual growth is required to preserve social stability. Yet the costs of pollution are already taxing the economy between 8 and 12 percent of GDP per year. As environmental problems mount, this percentage will increase, reducing annual growth. As a result, the CCP could be challenged to legitimize its continued control. The fourth factor contributing to the perception of a China threat is the fear of political and economic collapse in the PRC, resulting in territorial fragmentation, civil war and waves of refugees pouring into neighbouring countries. Naturally, any or all of these scenarios would have a profoundly negative impact on regional stability. Today the Chinese leadership faces a raft of internal problems, including the increasing political demands of its citizens, a growing population, a shortage of natural resources and a deterioration in the natural environment caused by rapid industrialisation and pollution. These problems are putting a strain on the central government's ability to govern effectively. Political disintegration or a Chinese civil war might result in millions of Chinese refugees seeking asylum in neighbouring countries. Such an unprecedented exodus of refugees from a collapsed PRC would no doubt put a severe strain on the limited resources of China's neighbours. A fragmented China could also result in another nightmare scenario - nuclear weapons falling into the hands of irresponsible local provincial leaders or warlords.2 From this perspective, a disintegrating China would also pose a threat to its neighbours and the world. Even if the CCP doesn’t collapse – the party will lash out over the Senkakus While a stable, fully democratized China may be less likely to adopt a confrontational foreign policy agenda, today's PRC is, at best, in the very early stages of liberalization. For many pessimists, it is precisely the process of democratization that will lead to conflict between China and the rest of the system. The problem, according to Edward Mansfield and Jack Snyder, is an imbalance between challenges posed by political participation of the masses and the inadequacy of democratic institutions that govern that participation.23 Under pressure to garner votes, leaders (and rival political elite) have incentives to use nationalist rhetoric and militaristic means to cultivate mass appeal or to distract the public from unpopular developments at home. The opportunities for China are abundant: confronting Japan on its war record in China; pressuring Taiwan when it comes to reincorporation to the PRC; making bold claims to control of undersea oil and natural gas resources in the China Sea; challenging American influence in regions like Latin America; fostering a crisis with one of its smaller neighbors (as it has done in the past) like Vietnam; or citing the US financial system as the culprit behind the economic slowdown hitting Chinese factories. From an American perspective, the start-and-stop process of democratization might actually highlight the sheer size of the social, cultural, and political gulf between the PRC and the United States. If a crisis were to develop between the PRC and one of its democratic neighbors, the visibility of China's democratic shortcomings might actually lead the American public to push Washington hard when it comes to countering Chinese policies. In summary, the existing literature on political liberalization suggests that the transition from autocracy to democracy can actually be a rocky one. This short-circuits the barriers to conflict and escalates Moreover, Japan’s maritime disputes with East Asian countries, especially with China over the Senkaku/Diaoyu islands, could severely affect the Japanese economy because of aggravated anti-Japanese sentiment and the potential for bilateral trade reprisals. The Senkaku/Diaoyu territorial dispute may also ignite Chinese nationalism, which may then become a heavy burden on China’s Communist Party. In such circumstances, this dispute could escalate into armed conflict. What, then, is the best policy option for Japan? Japan needs to carefully consider creating multilateral diplomatic channels. During the Cold War, Japan favoured bilateral talks, with the United States usually acting as an arbitrator. At that stage, bilateral talks were the logical choice, since the capitalist bloc countries could not neglect Japan’s clout — Japan possessed impressive negotiation skills and had valuable international connections, especially in maritime matters. Now, Japan is not as dominant as it used to be, and the United States is not willing to actively engage in Japan’s disputes, as this could increase anti-American sentiment in East Asia. In this context, if Japan tries to solve the problem with bilateral confrontations, their actions would receive international attention and would be more susceptible to domestic pressure, which would inevitably aggravate existing tensions. Leads to great power nuclear war A century on, many of the same observations can be made in East Asia. China’s rise is coupled with a disturbing surge in jingoism across East and Southeast Asia. China resents the territorial resolution of World War II, in which the United States handed responsibility for the Senkaku/Diaoyu islands to Japan while large chunks of the South China Sea were claimed and occupied by countries that emerged in Southeast Asia’s post-colonial order. Oil and gas reserves are attractive reasons for China to assert itself, but challenging the US place in East Asian waters is the main objective. China resents American ‘re-balancing ‘as an attempt at ‘containment’, even though US dependence on Chinese trade and finance makes that notion implausible. China is pushing the boundaries of the accepted post-Second World War order championed by the United States and embodied by the UN. China’s rapid rise and long-held grievances mean its powerbrokers are reluctant to use institutions like the ICJ. But China’s assertiveness is driving regional states closer into the arms of the United States. Intimidation and assertive maritime acts have been carried out, ostensibly by elements not linked to China’s armed forces. China’s white-painted Chinese Maritime Services and Fisheries Law Enforcement Command vessels operating in the South China Sea and around the Senkaku/Diaoyu islands have evoked strong reactions. But Japan’s recent allegation that China used active radars is a significant escalation. Assuming it happened, this latest move could trigger a stronger reaction from Japan. China looks increasingly as if it is not prepared to abide by UN-related conventions. International law has been established mostly by powers China sees as having exploited it during its ‘century of humiliation’. Yet arguably, it is in the defence of these international institutions that the peaceful rise of China is most likely to be assured. China’s refusal to submit to such mechanisms as the ICJ increases the prospect of conflict. For the moment, Japan’s conservative prime minister will need to exercise great skill and restraint in managing domestic fear and resentment over China’s assertiveness and the military’s hair-trigger defence powers. A near-term escalation cannot be ruled out. After all, Japan recognises that China is not yet ready to inflict a major military defeat on Japan without resorting to nuclear weapons and without triggering a damaging response from the United States. And Japan does not want to enter into such a conflict without strong US support, at least akin to the discreet support given to Britain in the Falklands War in 1982. Consequently, Japan may see an escalation sooner rather than later as being in its interests, particularly if China appears the aggressor. 1AC – Nepa Furthermore, it is the Court's responsibility to ensure that the Executive is abiding by such laws, rather than creating its own. To do so, the Court must review the actions of agencies when challenged rather than simply defer to the judgments of such agencies, even in times of war. If the Court fails to do so, there is no check on the Executive's power; the Executive is free to disregard the limits that Congress has placed on it. n137 In Hamdan v. Rumsfeld, the U.S. Supreme Court properly refused to allow the Executive to ignore the limits on its power. n138 The Court held that "whether or not the President has independent power, absent congressional authorization, ... he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers." n139 The Executive cannot use war as a justification for any and all action it desires to take. The Executive has certain powers while Congress has certain others, with a strict separation between the powers of each, as ""the power to make the necessary laws is in Congress; the power to execute in the President... . But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President.'" n140 Each branch of government must stay within the bounds of its power and must not usurp the powers of the other branches. If the Executive is allowed to do whatever it pleases in times of war, the notion of separation of powers, upon which this nation was founded, is destroyed. n141 In Hamdan, the Court would not allow this. At issue was the Executive's use of a military commission to try Hamdan, a Yemeni national captured by *25 militia forces in Afghanistan and then turned over to the U.S., for then-unspecified crimes, later designated as conspiracy "to commit ... offenses triable by military commission." n142 The Court found that no congressional act authorized the Executive to convene a military commission to try Hamdan, and "absent a more specific congressional authorization, the task of this Court is ... to decide whether Hamdan's military commission is so justified." n143 If the Executive's power to take action is not specifically authorized by Congress, the Court has a duty to examine the action to see if it is justified. If the Court instead simply defers, it allows the Executive too much authority, authority in excess of what was intended for it. In the absence of congressional authorization, the Executive must show that the act is necessary in order for the Court to permit it; the Executive failed to do so in Hamdan. n144 Because there was no congressional authorization for the Executive's action establishing a military commission and because the Executive failed to show necessity, the Court would not permit the action. The Court refused to simply defer to the Executive's judgment merely because it was during a time of war. Instead, the Court conducted the proper analysis and concluded that the Executive was overstepping its bounds; the fact that it was a time of war did not authorize the Executive to exceed its authority. n145 The U.S. Supreme Court also refused to defer to the Executive in Hamdi v. Rumsfeld, where it made clear its role in reviewing challenges. n146 The Court declared that it will give weight to the Executive's judgments during times of war, stating that "we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war ... ." n147 However, it explained that this does not mean that it will simply defer to the Executive. n148 Instead, it will review the Executive's actions. As the Court noted, "it does not infringe on the core role of the military for the courts to exercise their own time-honored and *26 constitutionally mandated roles of reviewing and resolving claims like those presented here." n149 The Court reviewed the Executive's decision to detain Hamdi, an American citizen classified as an "enemy combatant," indefinitely during the war with Afghanistan, without allowing him to challenge the basis for his detention. n150 The Court stated that "the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator." n151 In other words, the Court held that it would not refrain from reviewing the Executive's action merely because the Executive claimed that doing so would be a threat to its military operations; the threat to such operations does not trump a citizen's right to review. The Court stressed the importance of the doctrine of separation of powers and declared that "we have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." n152 A state of war does not mean that the Executive can do whatever it pleases. And if it tries to do so, judicial review is the mechanism to stop it as "the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions." n153 If the Court defers to the Executive's decisions rather than engaging in the appropriate review, it allows the Executive's power to go unchecked, permitting the Executive to take actions that are not authorized by the Legislature. It is up to the Court to ensure that the Executive Branch is not creating its own laws, but rather is abiding by the laws as created by the Legislative Branch. IV. Congress Did Not Intend to Add a National Security Exemption to NEPA The Legislative Branch did not include a national security exemption under NEPA. n154 It did, on the other hand, create exemptions for national security under other environmental laws, including the Clean Air Act, n155 the *27 Clean Water Act, n156 the Coastal Zone Management Act ("CZMA"), n157 the Endangered Species Act, n158 and the Marine Mammal Protection Act ("MMPA"). n159 Therefore, if Congress intended a national security exemption to NEPA, it would have included it in the statute as it did with all of the other environmental statutes. Because the scope of NEPA is broad, it may overlap with these other statutes at times, as it did in Winter, where the MMPA and the CZMA were also at issue. However, when an agency is granted a national security exemption under a different statute that explicitly allows for it, as was the Navy in Winter, its duties under NEPA should not be affected. An agency that is exempted, for example, from a rule that says it cannot take a marine mammal (MMPA), does not necessarily have to be exempted from a rule that says it must prepare an EIS before engaging in an activity that will result in the taking of a marine mammal (NEPA). It is one thing to be allowed to take a marine mammal and another to have to consider the environmental impacts of taking the mammal before doing so. In fact, this is the essence of NEPA: agencies must consider the environmental impacts of their actions before engaging in them, allowing them to discover and take steps to lessen the impacts if they so choose, but will not be required to effect any substantive result. Therefore, the grant of an exemption to a substantive statute, like the MMPA, should not affect an agency's duty to comply with the procedural statute, NEPA. The goal is that, after considering the impacts of the proposed action under NEPA, the agency will either decide not to take the action or to implement mitigation measures to lessen the environmental impacts of the action, even though it is permitted to take the action under the national security exemption to the substantive statute. Because Congress did not include a national security exemption under NEPA, the agencies of the Executive Branch must abide by it, even in times of war, and the courts cannot take it upon themselves to except these agencies from doing so. n160 Instead, the courts must give effect to what Congress enacted. As the Maryland Court of Appeals stated, "we are obliged to ascertain and carry out the legislative intent; to consider the language of the enactment in its natural and ordinary signification; to not insert or omit words to make a statute express an intention not evidenced in *28 its original form." n161 Courts cannot substitute their own opinions of what the law should be for what the law says; they must apply the law as it is stated. And, as stated, NEPA does not include a national security exemption. If Congress does intend a national security exemption to exist in NEPA, it must write this into the statute, but until then it is not within the Court's authority to create such an exemption. n162 V. Conclusion By deferring to the agencies of the Executive Branch in determining whether to grant injunctive relief in NEPA noncompliance cases, the Court ignores its duty to act as a check on the Executive's power and instead grants the Executive an exemption from NEPA. When injunctive relief is requested, the Court is required to give due weight to each competing harm and grant relief to the party toward whom equity tips. This means that, in NEPA noncompliance cases where national security is asserted as a defense, courts must balance the harm to the environment against the harm to national security. When courts ignore their duty to conduct this balancing and instead defer to the assertion of national security, they create a national security exemption to NEPA, one which the legislature did not include or intend. The agencies of the Executive Branch serve an important role and the preservation of national security is of extreme importance, but environmental impacts from the actions of these agencies can be just as significant; the effects of agency action on our health and safety can be just as damning as the absence of action on the preservation of national security. Courts must not, without first examining the environmental effects, deny injunctive relief any time an agency claims that an injunction will prevent it from protecting national security. When an agency's proposed action is in the interest of national security and compliance with NEPA would truly cause a delay that would impede the agency's ability to protect and preserve national security, an exception to NEPA compliance may be justified. But a court cannot decide if this is true without first weighing the competing harms. Courts must explore the truth of the national security *29 assertion to ensure that it is not being used merely as a pretext to avoid complying with NEPA. NEPA serves as an important check on agency action. It forces agencies to consider the consequences of and alternatives to their actions, in turn leading to substantive changes in decision-making. NEPA's EIS requirements also serve to inform the public and to create records which courts can review in determining challenges for noncompliance. While the agencies of the Executive Branch may play a crucial role in the protection and preservation of our national security, this should not give them a free pass to escape NEPA compliance; it is important for them to consider the environmental impacts of their proposed actions. The Legislature did not intend to exempt agencies in the business of protecting national security from NEPA. If it did, it would have written a national security exemption into the statute, just as it wrote one into other major environmental statutes. If a national security exemption to NEPA is the Legislature's intent, the Legislature should write it into the statute. But unless and until Congress writes a national security exemption into NEPA, courts have a duty to conduct the appropriate balancing in determining whether to grant injunctive relief in NEPA noncompliance cases rather than merely giving it lip service in order to refrain from creating an exemption which Congress did not intend. Since the 1970s, many laws have been passed with the overarching goal of protecting the environment.2 Without proper enforcement of environmental protection laws, the environment will likely suffer from increased pollution levels and less biological diversity. Therefore, it is critical to ensure that these laws are enforced. A person or agency with proper standing can bring a citizen suit to enforce environmental protection laws against alleged perpetrators.3 To ensure that the perpetrator does not continue to harm the environment while the action is pending in court, the plaintiff will often seek a preliminary injunction4 to force the perpetrator to stop or alter his environmentally detrimental practices.5 Without the preliminary injunction, enforcement of environmental statutes would be much more difficult. On November 12, 2008, the Supreme Court handed down its decision in Winter v. Natural Resources Defense Council. 6 The Court’s primary concern in this case was whether a preliminary injunction which forbade the Navy’s use of mid-frequency active (“MFA”) sonar7 during certain portions of its submarine training exercises off the coast of southern California was properly issued.8 The injunction was sought by the National Resources Defense Council (NRDC),9 a handful of other environmental interest groups, and several concerned citizens. The injunction was granted by the United States District Court for the Central District of California on January 3, 2008,10 and upheld by the Court of Appeals for the Ninth Circuit on February 29, 2008.11 The district court granted the injunction because the Navy failed to comply with the requirements of the National Environmental Policy Act (NEPA).12 Specifically, the Navy failed to prepare an adequate Environmental Assessment (EA)13 or a subsequent Environmental Impact Statement (EIS),14 both of which must be prepared for proposed “major Federal actions significantly affecting the human environment.”15 The injunction imposed several restrictions on the Navy’s ability to use its MFA sonar in training exercises.16 The Navy eventually appealed to the Supreme Court, which published three very divided opinions.17 The Roberts majority opined that the environmentalists’ interests were “plainly outweighed by the Navy’s need to conduct realistic training exercises.”18 The majority focused on two primary factors before holding that the district court had abused its discretion by granting a preliminary injunction.19 First, the Court challenged the level of probability that the district court assigned to the likelihood of the plaintiffs’ success at trial.20 Second, the Court felt that neither the district court nor the Ninth Circuit adequately considered the balance of equities between the plaintiffs and the Navy.21 For these two reasons, the Court held that the district court abused its discretion by imposing the injunctive measures challenged here by the Navy.22 Therefore, the Court vacated the portion of the district court’s injunction that the Navy challenged.23 There were two other opinions which differed from the majority. Justice Bryer, concurring in part and dissenting in part, believed that the proper solution was an injunction restricting the Navy’s use of MFA. However, the injunction should not be as stringent as the district court’s original injunction.24 On the other hand, Justice Ginsburg, who dissented, would have affirmed the lower courts’ decisions and upheld the district court’s injunction.25 Her dissent focused on the “central question” of “whether the Navy must prepare an EIS.”26 Justice Ginsburg believed that by attempting to circumvent the NEPA process, the Navy’s actions in this case “undermined NEPA” by appealing to the Council on Environmental Quality (CEQ), a division of the White House.27 The outcome of this case is both unfortunate and improper. Its result is a signal that the Court is likely to continue to give extraordinary deference to the military in environmental cases which may involve matters of national security, without any attempt to look into the circumstances of the military’s assertions of national security interests. This case also shows how easy it has become for agencies, particularly military branches, to avoid adhering to laws like NEPA. Courts should be more willing to grant preliminary injunctions when it comes to NEPA enforcement actions, lest agencies be allowed to do as they will without any regard to the rule of law. Without more stringent NEPA enforcement by the courts, the Act’s purposes of “sensitizing … federal agencies to the environment” and “fostering precious resource preservation” will be thwarted.28 Pollution causes extinction Air pollution can make life unsustainable by harming the ecosystem upon which all life depends and harming the health of both future and present generations. The Rio Declaration articulates six key principles that are relevant to air pollution. These principles can also be understood as goals, because they describe a state of affairs that is worth achieving. Agenda 21, in turn, states a program of action for realizing those goals. Between them, they aid understanding of sustainable development's meaning for air quality. The first principle is that "human beings. . . are entitled to a healthy and productive life in harmony with nature", because they are "at the center of concerns for sustainable development." 3 While the Rio Declaration refers to human health, its reference to life "in harmony with nature" also reflects a concern about the natural environment. 4 Since air pollution damages both human health and the environment, air quality implicates both of these concerns. 5 Biodefense contractors use the national security exemption in NEPA to overlook safety concerns – results in pathogen spread and accidental release Southern Research Institute, the military biodefense contractor recently in the news for sending live anthrax to the Children's Hospital of Oakland (CA), is also in charge of safety and security for a major new $30 million biodefense facility being built at the Department of Energy's Argonne National Laboratory near Chicago. The new Ricketts Regional Biocontainment Laboratory is funded by the National Institute of Allergy and Infectious Disease (NIAID) and is named after Howard T. Ricketts, a celebrated pathologist who acquired typhus in the course of research and died at age 39. It will begin biodefense work with studies of anthrax (Ames strain) and Yersinia pestis, the causative agent of plague. Southern Research Institute, with major labs of its own in Frederick, Maryland and Birmingham, Alabama, has a $75 million annual budget including biodefense contracts from an impressive roster of Pentagon agencies. Its Frederick, Maryland facility is located near the Army's biological weapons research headquarters at Fort Detrick, yet despite its biodefense prominence, Southern Research in Frederick does not maintain an institutional biosafety committee that complies with federal research rules. (And Southern Research in Birmingham has not honored requests for records of its institutional biosafety committee.) "Southern Research's incompetence is plain to see. Its own house is in dangerous disarray and does not comply with federal research rules," said Edward Hammond, Director of the Sunshine Project. "That threat is bad enough; but even after leaking anthrax, the institute is still developing biosafety and operating procedures for new high containment labs." According to a national coalition of biodefense watchdogs, formed in 2002 to monitor the US biodefense program, the Southern Research situation epitomizes their concern that biodefense laboratories are proliferating unsafely and with unsound planning, and that this could result in health, environment, and international security problems. The watchdogs also point to Southern Research's links to classified biodefense research. (Southern Research's facilities and personnel have "secret" clearance.) "Public interest groups seeking information about military biodefense programs are being stonewalled by the Army and other agencies." says Steve Erickson of Citizen's Education Project in Salt Lake City, which monitors the Army's Dugway Proving Ground. "That Southern Research and other secretive military contractors are also insinuating themselves into civilian biodefense programs is cause for concern that we are witnessing a steady erosion of openness and accountability, not only at Pentagon labs; but at academic institutions and in work funded by the National Institutes of Health." Two other Department of Energy (DOE) labs that design and develop the nation's nuclear weapons are also building new biosafety level three biodefense facilities. Both Lawrence Livermore and Los Alamos Labs have been sued by local community groups under the National Environmental Policy Act (NEPA). Inga Olson, Program Director at Tri-Valley CAREs, one of the groups that sued DOE, warns "Biodefense dollars are flowing like champagne at a wedding - into everywhere from nuclear weapons labs to children's hospitals - everyone wants a piece of the action. But a far more sober look is needed at whether the rapid spread of labs, pathogens, and bioweapons knowledge poses a greater threat than the problem we are trying to solve." Of all the weapons of mass destruction, the genetically engineered biological weapons, many without a known cure or vaccine, are an extreme danger to the continued survival of life on earth. Any perceived military value or deterrence pales in comparison to the great risk these weapons pose just sitting in vials in laboratories. While a "nuclear winter," resulting from a massive exchange of nuclear weapons, could also kill off most of life on earth and severely compromise the health of future generations, they are easier to control. Biological weapons, on the other hand, can get out of control very easily, as the recent anthrax attacks has demonstrated. There is no way to guarantee the security of these doomsday weapons because very tiny amounts can be stolen or accidentally released and then grow or be grown to horrendous proportions. The Black Death of the Middle Ages would be small in comparison to the potential damage bioweapons could cause. Abolition of chemical weapons is less of a priority because, while they can also kill millions of people outright, their persistence in the environment would be less than nuclear or biological agents or more localized. Hence, chemical weapons would have a lesser effect on future generations of innocent people and the natural environment. Like the Holocaust, once a localized chemical extermination is over, it is over. With nuclear and biological weapons, the killing will probably never end. Radioactive elements last tens of thousands of years and will keep causing cancers virtually forever. Potentially worse than that, bio-engineered agents by the hundreds with no known cure could wreck even greater calamity on the human race than could persistent radiation. AIDS and ebola viruses are just a small example of recently emerging plagues with no known cure or vaccine. Can we imagine hundreds of such plagues? HUMAN EXTINCTION IS NOW POSSIBLE. The risks from anthropogenic hazards appear at present larger than those from natural ones. Although great progress has been made in reducing the number of nuclear weapons in the world, humanity is still threatened by the possibility of a global thermonuclear war and a resulting nuclear winter. We may face even greater risks from emerging technologies. Advances in synthetic biology might make it possible to engineer pathogens capable of extinction-level pandemics. The knowledge, equipment, and materials needed to engineer pathogens are more accessible than those needed to build nuclear weapons. And unlike other weapons, pathogens are self-replicating, allowing a small arsenal to become exponentially destructive. Pathogens have been implicated in the extinctions of many wild species. Although most pandemics "fade out" by reducing the density of susceptible populations, pathogens with wide host ranges in multiple species can reach even isolated individuals. The intentional or unintentional release of engineered pathogens with high transmissibility, latency, and lethality might be capable of causing human extinction. While such an event seems unlikely today, the likelihood may increase as biotechnologies continue to improve at a rate rivaling Moore's Law. Court enforcement of the national security exemption guts possibility of preliminary injunctions In Winter v. Natural Resources Defense Council, Inc., the Court finally focused on the criteria for the grant or denial of preliminary injunctions. n153 There, the Natural Resources Defense Council sued to enjoin the United States Navy from using "mid-frequency active sonar" in the waters off Southern California. n154 It alleged that such sonar caused serious harm to some species of marine mammals. n155 Using a "sliding scale" approach it had used for many years, the Ninth Circuit Court of Appeals affirmed the grant of preliminary relief, ruling that the plaintiff had made a strong showing on the likelihood of prevailing on the merits and a "possibility" of irreparable harm. n156 *24 The Supreme Court reversed the ruling of the Court of Appeals. n157 First, it noted that a temporary injunction is "an extraordinary remedy never awarded as of right." n158 Second, the Court added that a trial court should grant preliminary relief only upon a "clear showing" that the moving party is entitled to it. n159 Third, the Court identified the four factors the trial court must consider in evaluating requests for temporary injunctions. n160 It ruled that the moving party "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." n161 Although the Court cited prior decisions n162 for this four-factor test, in fact it had never expressly and clearly so ruled in unmistakable language prior to its decision in Winter. At least the lower federal courts did not think so. n163 The Court then addressed the question whether it should affirm the issuance of the preliminary injunction. First, it noted that the appellate court had incorrectly required only a showing of "possible" irreparable injury, which the Court noted is "too lenient." n164 The correct standard is "likelihood" of irreparable injury. It then ruled that the plaintiff had not demonstrated the public interest would not be adversely affected. n165 In fact, the Court observed, the national defense would be seriously impaired, and courts should defer to the military's assessment of the dangers to the public interest if the injunction is granted. n166 When the non-moving party defendant is a government, the inquiry into the harm to that party and the harm to the public interest is the same inquiry because the government represents the public interest. n167 Finally, the Court declined to rule on the likelihood of success factor as *25 unnecessary because the plaintiff had failed to satisfy the other factors. Whether the Court will apply this four-factor analysis, including the public interest criterion, when none of the parties to the litigation is a governmental entity remains to be seen, although the lower federal courts have done so in the wake of Winter. n168 The Winter decision has already impacted the standards for granting preliminary injunctions applied in the lower federal courts, unlike prior Supreme Court decisions which seemed to have had little effect on the development of the standards for temporary relief. For example, the Ninth Circuit Court of Appeals began applying Winter immediately, notwithstanding its prior criteria. "To the extent that our cases have suggested a lesser standard, they are no longer controlling, or even viable." n169 Prior to Winter, the Ninth Circuit allowed the grant of a preliminary injunction if the plaintiff demonstrated either: (1) A likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor. These two alternatives represent extremes of a single continuum, rather than two separate tests. Thus, the greater the relative hardship to the party seeking the preliminary injunction, the less probability of success must be shown. n170 Winter dramatically altered these previous standards in the Ninth Circuit and elsewhere. n171 Its full impact on the standards for granting or denying preliminary injunctions is not yet fully known, but the handwriting is clearly on the wall. Finally, the Supreme Court in Winter suggested that a moving party may have to make a heightened showing if that party is seeking an *26 affirmative (or mandatory) preliminary injunction as compared to a prohibitory injunction. n172 Federal courts of appeals have read the decision in that fashion. n173 In 2000, the Second Circuit Court of Appeals had ruled that the test is "more vigorous" for an affirmative injunction, requiring the moving party to demonstrate "a clear and substantial" likelihood of succeeding on the merits. n174 Although the First Circuit has not yet, in the wake of Winter, addressed the question whether heightened standards apply to affirmative preliminary injunctions, it has ruled that temporary mandatory relief may be necessary to protect the status quo and prevent irreparable injury until a trial on the merits. n175 The affirmative injunction is usually in the form of "thou shalt," while the prohibitory injunction takes the form of "thou shalt not." The line is not always clear between the two forms of injunctions. Through the use of the "double negative" order, a court will sometimes enter an injunction that looks like a prohibitory injunction but in fact is an affirmative (or mandatory) injunction: "The defendant is hereby enjoined from failing or refusing to remove the tool shed that trespasses upon plaintiff's property," or "the defendant is hereby enjoined from failing or refusing to sell its product to the plaintiff on the same terms and conditions as it sells that product to plaintiff's competitors." It’s one of the most interesting and daunting judicial controversies to come around in a long time: A few very worried individuals claim that a brand new, largest-of-its-kind particle accelerator under Switzerland and France, CERN’s Large Hadron Collider, could create a black hole that is capable of reducing the Earth and everything on it to an infinitesimal lightless speck. So here’s the question of the moment: Is it plausible that a group of extremely smart, highly trained, non-sociopathic scientists and engineers could overlook fatal flaws in a multi-billion-dollar project and thus cause a catastrophe? Previously I blogged about the analytical problems of considering a preliminary injunction against CERN. In this post, I’m going to attempt to provide an analytical solution. Here’s a recap of the dilemma: The science involved in this case is so complex, it would take years of physics training for a judge to make an independent evaluation of the arguments on either side. The old fallback, expert testimony, is problematic here, since all the experts are interested parties, and since our legal tool for sifting out unreliable expert opinion, the Daubert framework, collapses into analytical nonsense when faced with extreme facts such as these. If the judiciary surrenders to these difficulties and refuses to involve itself in the dispute, the judiciary is then rendering consensus judgments within scientific communities effectively injudicable – even where those judgments are disputed, and even where the alleged harm is destruction of the Earth. That seems unacceptable. Yet if the judiciary plows ahead and issues an injunction in such cases – despite not having a principled way of evaluating the merits of the plaintiffs’ arguments – the courts are then transformed into a marionette – manipulable by frivolous objectors into halting any scientific undertaking that is sufficiently complicated so as to be opaque to the layperson. That seems unacceptable as well. Either way, we lose the benefits of fair judicial review. Is there any way out? I believe there is. And the Columbia accident points the way. The Columbia Accident Investigation Board concluded that several aspects of the culture of NASA’s human spaceflight program led to the disaster, including, among other things, political considerations and “stifled professional differences of opinion.” While courts are not well equipped to evaluate theoretical science, they certainly are adequate to the task to investigating social dynamics, psychological factors, political influences, and organizational cultures. In evaluating a preliminary injunction request regarding the Large Hadron Collider, a court should scrutinize the culture of CERN and the particle-physics community, as well the political, social, and psychological context in which their decisions are made. Having done so, the court should then determine, with reference to those gathered facts, whether “serious questions” exist, and, thus, whether the case for a preliminary injunction has been made. An honest appraisal of the situation reveals that there are many apparently plausible reasons why the culture at CERN and within the particle-physics community could lead to flawed risk analysis. I will list several: To begin with, it seems highly plausible that particle physicists might fear serious reprisals and negative repercussions for their careers if they were to speak out about perceived dangers of the LHC. Denial of tenure, unaccepted manuscripts, and ostracism by peers are among the penalties an academic in such a situation might plausibly face. Such an apprehension would appear to be all the more acute because the LHC is the crown jewel of particle-physics experimentation. It dwarfs all predecessors in size and power, and represents a leap forward that could radically advance fundamental theory, possibly answering some of the most basic questions about our universe. To say that the LHC is important to the particle-physics community seems to be an understatement. Further, in mulling over whether to speak out, particle physicists with private doubts might well resign themselves to a fatalistic assessment. They might plausibly figure that they, as individuals, are powerless to overcome the momentum of a multinational multi-billion-dollar project. If that is their appraisal, then such individuals have nothing to gain, but much to lose, by making a public objection. Consider the possible outcomes: If a scientist speaks out and nothing bad happens, the scientist is a laughingstock. If a scientist speaks out and disaster does come to pass, professional vindication will be fleeting and bittersweet. If a scientist keeps mum or even extols the safety of the project, in a disaster scenario, embarrassment will be short-lived. But let's suppose particle physicists with private doubts reach the opposite conclusion about the likely impact of their public dissent. Suppose a private doubter predicts that his or her voice could be the tipping point that leads to widespread public concern and a permanent shutdown of the LHC. In such a case, whether the objecting scientist is right or wrong, he or she can anticipate being blamed for ruining the most exciting opportunity for advancing scientific understanding in this generation. And there’s no hope of vindication in such an event – naysayers cannot be proved right if the experiments are never run. The math-oriented are often fond of using matrices to elucidate decision-making. A physicist creating such a matrix, using the logic detailed above, would be faced with a series of boxes in which all outcomes are quite bad, except one: to be a supporter of the LHC in the event that it turns out to be a benign scientific triumph. Additional pressure on scientists not to question the LHC may also come from the fact that the LHC appears increasingly to be the only game in town for particle physicists wanting to work at the leading edge of discovery. In fact, the world’s largest particle collider currently in operation, Fermilab’s Tevatron outside of Chicago, Illinois, is slated for shutdown in 2010, apparently in large part because the LHC will render it obsolete. Other particle accelerators planned for the future have had their funding suspended or cutoff.1 A psychological or sociological explanation for how particle physicists could reach a consensus on safety, despite the existence of real danger, is the phenomenon William H. Whyte, Jr. called “groupthink.” This process allows individuals to maintain a worry-free outlook that is not justified by the facts. In such a dynamic, the existence of group consensus causes individuals to forego or dismiss their own independent thinking. A circularity develops: Group consensus justifies individual confidence, and individual confidence justifies group consensus. The result is flawed decision-making. Groupthink has been offered as an explanation for both the Challenger and Columbia space-shuttle disasters. Another set of concerns arises from the question of how political realities might have affected the decision-making environment at CERN. As a consortium run by 20 member states, it is plausible that politics plays a significant role in the CERN milieu. Still another point of worry is the independence, or lack thereof, of the safety reviews that have been advanced as evidence that the LHC is safe. While an independent report was completed in 2003, more current documents said to confirm the safety of the LHC, which were issued in response to recent criticism, are the product of CERN itself, and are not independent. Other factors are worthy of investigation as well. It may be, for instance, that the timeline of infrastructure construction and critical theorizing is such that LHC interests were thoroughly vested by the time potentially convincing theoretical work on safety concerns surfaced. That is, the late hour at which objections were made could well have prevented their open-minded consideration, regardless of merit. Some elements of the broad timeline of the LHC endeavor suggests this: The LHC was approved in 1994, and construction began in 1998. Construction was nearing completion in September 2007 when Otto Rössler released a paper explaining his new mathematical work, which, according to Rössler, demonstrates the LHC’s grave danger. Rainer Plaga’s article making a negative assessment of the risk at the LHC was published in August 2008, a month before operational testing began. At the point these papers were advanced, it is plausible that the LHC project had already reached the point where halting it was politically unthinkable. Supporters of the LHC have argued that Dr. Plaga and Dr. Rossler are not career-dedicated particle physicists, and, therefore, their theoretical work should not be taken seriously. As discussed above, it seems plausible that the cultural environment in which particle physicists operate is such that public objection to the LHC is discouraged and stifled to the point where it is non-existent. Given such a state, we would expect public objection to come from outside the particle-physics community. Thus, rather than being a reason for discounting such theoretical work, the outsider nature of such work might be a reason to embrace it. Even putting aside the social and cultural pressure on particle physicists to conform, it is a well-talked about phenomenon, famously advanced by Thomas S. Kuhn, that paradigm-shifting revolutions in scientific thought often come from individuals who are new to a field of study, and thus not entrenched in its conventional modes of thinking. (Jim Chen wrote about the virtues of juniority in the legal academy on MoneyLaw.) Thus we might expect that career particle physicists would be slow to accept paradigm-shifting theoretical work that undermines confidence in the safety of the LHC. As a corollary, the lack of particle-physics bona fides among LHC critics, especially ones who are serious and respected scientists, should not be relied upon as a way to dismiss their concerns. There may be several other sociological, psychological, political, and cultural factors, in addition to those I’ve listed above, that would be relevant. The matter requires some deeper thought. Nonetheless, I believe this list of considerations shows that questions about the reliability of LHC safety assessments are not specious. Let me be clear: I am not accusing CERN or the particle-physics community of incompetence or malfeasance. The above points are not set forth as factual contentions demonstrating the case for a preliminary injunction. Rather, I posit them as realistic possibilities that raise non-trivial questions, the answers to which could seriously undermine the consensus view that the LHC is safe. I should also emphasize that I am not arguing in favor of a preliminary injunction against the LHC. Whether one should be granted is, to me, an open question. What I am arguing is that there is an analytical way for a court to reach a well-reasoned decision in cases such as this, even where the merits of the scientific controversy itself are opaque to judges lacking specialized scientific training, and where expert testimony is of dubious use in adjudicating the matter. In considering a preliminary injunction, the court should investigate the cultural, organizational, political, psychological, and sociological context in which safety determinations were made, and then ask whether the results of that inquiry raise serious questions on the merits. If serious questions are raised, and if the balance of hardships tips strongly in the plaintiffs’ favor (as it clearly does with a black hole destroying the Earth), then an injunction should issue. The world is currently undergoing a remarkable revolution in science and technology that will seemingly allow us to engineer synthetic life of any imaginable variety, build swarms of robots so small that they are *309 invisible to the human eye, and, perhaps, create an intelligence far superior to the collective brainpower of every human. Much of this "emerging technology" either already exists in rudimentary form or may be developed in the coming decades, n1 including the three technologies covered by this paper: nanotechnology, bioengineering, and artificial intelligence ("AI"). While many scientists point to these developments as a panacea for disease, pollution, and even mortality, n2 these emerging technologies also risk massive human death and environmental harm. Nanotechnology consists of "materials, devices, and systems" created at the scale of one to one hundred nanometers n3 --a nanometer being one billionth of a meter in size (10-9 m) or approximately one hundred-thousandth the width of a human hair n4 --including nano-sized machines ("nanorobots"). Bioengineering is the "engineering of living organisms" and can also operate on a tremendously small scale. n5 Specific types of bioengineering include genetic engineering, or altering the genetic makeup of an organism's cells, n6 and synthetic biology, in which scientists develop "new biological parts, devices and systems that do not exist in the natural world and also the redesign of existing biological systems to perform specific tasks." n7 Finally, A1, meaning intelligent computers, is a pathway to "the Singularity," the concept that manmade greater-than-human intelligence could improve upon its own design, thus beginning an intelligence feedback mechanism or "explosion" that would culminate in a godlike intelligence with the potential to operate at one million times the speed of the human brain. n8 These and other threats from emerging technologies may pose a "global catastrophic risk" ("GCR"), which is a risk that could cause *310 serious global damage to human well-being, or an "existential risk" ("ER"), which is a risk that could cause human extinction or the severe and permanent reduction of the quality of human life on Earth. n9 Currently, the main risks from emerging technologies involve the accidental release or intentional misuse of bioengineered organisms, such as the airborne highly pathogenic avian influenza A ("H5N1") virus, commonly known as "bird flu," that scientists genetically engineered in 2011. However, with emerging technologies developing at a rapid pace, experts predict that perils such as dangerous self-replicating nanotechnology, n10 deadly synthetic viruses available to amateur scientists, and unpredictable super-intelligent AI n11 may materialize in the coming few decades. Society should take great care to prevent a GCR or ER ("GCR/ER") from materializing, yet GCRs/ERs arising out of nanotechnology, bioengineering, and AI are almost entirely unregulated at the international level. n12 One possible way to mitigate the chances of a GCR/ER ever materializing is for the intgernational community to establish an international convention tailored to emerging technologies based on the following three principles: first, that nanotechnology, bioengineering, and AI pose a GCR/ER; second, that existing international regulatory mechanisms either do not include emerging technologies within their scope or else insufficiently mitigate the risks arising from emerging technologies; and third, that a international convention based on the precautionary principle could reduce GCRs/ERs to an acceptable level. Plan 1AC – No DA’s The Department of Defense (DoD) follows the rigorous requirements outlined in NEPA, the National Historic Preservation Act of 1966 (NHPA), and all other statutes that involve protecting the environment and vital land resources under DoD stewardship. The DoD has a long and successful program to comply with NEPA. DoD’s policy is in DoD Instruction 4715.9, Environmental Planning and Analysis. Each of the military Departments and Defense Agencies are required to demonstrate how they will comply with NEPA prior to selection of each military construction project using Recovery Act funds. In addition, the Department is tracking compliance with NEPA for every project and reporting its status, as required, to the Council on Environmental Quality. The Department is using the full range of actions available under NEPA.8 To adhere and comply with NEPA, the Department of the Army engaged in three major efforts that benefited from the NEPA analysis process: Army Transformation, the Installation Sustainability Program and the Sustainable Range Program. All contributed to the long-term reduction of environmental impacts associated with Army programs and projects. The Army Transformation process is extensive, including the expansion and upgrading of installation training ranges, or the development of new ranges. As training requirements become more collaborative and sophisticated, training ranges may require different land areas, airspace, and support facilities. As this complex Army Transformation process proceeds, NEPA planning is increasingly integrated into Army policies. The planning process associated with the Army’s Installation Sustainability Program to address installation encroachment issues integrates the NEPA analysis process and is similar to CEQ’s cumulative effects analysis process. The installation and community jointly identify affected resources within the region in both processes. Once the resources have been identified and evaluated a collaborative management plan is developed that will provide solutions for all stakeholders. The Army’s Sustainable Range Program incorporates the same principles of these processes into its planning procedures. Site selection and range design for training facilities begin with a design “charrette” to insure stakeholder collaboration. This effort ensures a design that will satisfy training requirements and environmental issues.9 The Army NEPA implementation regulation provides the following broad policy statements10: “NEPA establishes broad federal policies and goals for the protection of the environment and provides a flexible framework for balancing the need for environmental quality with other essential societal functions, including national defense. The Army is expected to manage those aspects of the environment affected by Army activities; comprehensively integrating environmental policy objectives into planning and decision-making. Meaningful integration of environmental considerations is accomplished by efficiently and effectively informing Army planners and decision makers. The Army will use the flexibility of NEPA to ensure implementation in the most cost-efficient and effective manner. The depth of analyses and length of documents will be proportionate to the nature and scope of the action, the complexity and level of anticipated effects on important environmental resources, and the capacity of Army decisions to influence those effects in a productive, meaningful way from the standpoint of environmental quality. The Army will actively incorporate environmental considerations into informed decisionmaking, in a manner consistent with NEPA. Communication, cooperation, and, as appropriate, collaboration between government and extra-government entities is an integral part of the NEPA process. Army proponents, participants, reviewers, and approvers will balance environmental concerns with mission requirements, technical requirements, economic feasibility, and long-term sustainability of Army operations. While carrying out its mission, the Army will also encourage the wise stewardship of natural and cultural resources for future generations. Decision makers will be cognizant of the impacts of their decisions on cultural resources, soils, forests, rangelands, water and air quality, fish and wildlife, and other natural resources under their stewardship, and, as appropriate, in the context of regional ecosystems.” The new US Supreme Court term, which began on Oct(ober). 7, 2013, is expected to decide many controversial issues including cases on abortion, gay marriage, Obamacare, affirmative action, public prayer, free speech, religious liberty, property rights, and campaign finance reform. Justices began hearing oral arguments on Oct. 8 with an examination of campaign finance laws in McCutcheon v. Federal Election Commission. The case will determine the constitutionality of aggregate caps on direct contributions from individuals to candidates and political parties in federal campaigns. The plaintiffs, an Alabama citizen and the Republican National Committee, argue that two-year contribution limits to candidates ($46,200) and groups ($70,800) violate freedom of speech protections. Two cases will touch on abortion. McCullen v. Coakley challenges a Massachusetts law that restricts protests near reproductive health care facilities. Another, Cline v. Oklahoma Coalition for Reproductive Justice, questions whether or not states may limit the use of abortion-inducing drugs. The case could potentially modify the Supreme Court's 1973 ruling in Roe v. Wade prohibiting laws that place an "undue burden" on access to abortion. Justices are also expected to decide whether to hear cases challenging an Obamacare requirement that employers provide insurance coverage for contraception. Some corporations have stated that the requirement violates their right to religious freedom, and cite the Supreme Court's decision in Citizens United v. Federal Election Commission as the basis for a corporation's right to free speech. On the topic of affirmative action, the court will hear Schuette v. Coalition to Defend Affirmative Action. The case asks whether voters in the state of Michigan were allowed to pass a law in 2006 banning the use of race as a criteria for college admissions. The court will potentially take up cases on cell phones and privacy rights. The cases, US v. Wurie and Riley v. California, question whether or not police must obtain a warrant to search data on the cell phone of a person under arrest. Political question doctrine is dead Not surprisingly, the Court has limited the application of the political question doctrine to thorny areas that are at the intersection of law and public policy, such as Congress's ability to regulate its own internal processes and matters of foreign affairs. With respect to the latter category, the Court has long declined to interfere with sensitive questions of foreign policy, holding at various points in history that such questions of when a war begins and ends and whether to recognize a foreign government and grant diplomatic immunity to its officials are all nonjusticiable political questions. In fact, some scholars have recognized that the area of foreign affairs was the last bastion where the political question doctrine had "real bite." The question I pose is what is left of the political question doctrine after Boumediene v. Bush? The answer, I believe, is not very much. As an initial matter, a majority of the Court has only employed the political question doctrine twice since 1964 (the year Baker v. Carr was decided) to dismiss a case, though various Justices have endorsed its use in a variety of contexts (e.g., treaty interpretation, political gerrymandering cases, etc.). Second, in Boumediene, the Court quickly dismissed the Government's argument that questions of sovereignty are matters for the political branches to conclusively decide. As the Court stated, "our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory . . . . When we have stated that sovereignty is a political question, we have referred not to sovereignty in the general, colloquial sense, meaning the exercise of dominion or power, but sovereignty in the narrow, legal sense of the term, meaning a claim of right." The Court went on to conclude essentially that questions of de jure sovereignty (or a claim of right) are matters for the political branches to decide, but that questions of de facto sovereignty (or practical control over a territory) can be examined by the judicial branch. Given that de jure sovereignty is the clearer purely legal question and that one of the lynchpins of the political question doctrine is the presence or absence of judicially manageable standards, I find the Court's abbreviated discussion of the political question doctrine quite significant, even astonishing. Questions of de facto sovereignty tend to be difficult to determine because of competing indicia of control and, as a result, judicially manageable standards seem to be fairly elusive. (However, I would freely admit that the United States' near-total control of Guantanamo Bay made the question of de facto sovereignty by the United States in Boumediene pretty clear.) I also find the Court's discussion of the political question doctrine to be in stark contrast to its prior case law, which is quite deferential to the political branches on foreign policy questions. For instance, in Chicago and Southern Air Lines, Inc. v. Waterman Steamship Corp., 383 U.S. 103 (1948), the Court held that it could not review decisions of the President to grant or deny certificates of necessity to air carriers wishing to establish air travel routes to foreign countries. As the Court stated: the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the Government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of the kind for which the Judiciary has neither aptitude, facilities, nor responsibility, and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. In the past, the Court has held that questions relating to sovereignty, such as whether to recognize a foreign government and grant diplomatic immunity to government officials, were among the "delicate" and "complex" matters that were better left to the "political departments." And as the Court freely concedes in Boumediene, it would have at least deferred to the Executive Branch if the outcome of the case depended on which country possessed de jure sovereignty over Guantanamo Bay. I am surprised, therefore, that not a single Justice on the Court would have dismissed this case on political question grounds, at least as the majority framed the case. (Perhaps the majority opinion could have taken sovereignty off the table by expanding its discussion of extraterritorial application of the Constitution and further distinguishing Eisentrager.) Solvency/Extra Cards Citizen activism against pollution sheds some new light on the study of Chinese civil society. It shows that, apart from ‘embedded activism’ by environmental civic organizations, there is also activism by citizens who try different legal and political pathways to ?nd remedies for their grievances. Citizen activism takes less account of political sensitivities as desperate pollution victims try every strategy available to them to get attention for their cause. When initial non-confrontational options such as negotiations with the company and complaints to the EPB fail, citizens resort to provocative and sensitive forms of action such as petitions and protests. This pits them against local and sometimes national governmental interests. Their action is then sometimes labeled turmoil and activists are arrested and prosecuted. In these cases citizens are often not able to get support from civic organizations, especially those that are embedded and extra careful not to upset the sensitivities surrounding their relationship with the state. The result is that in these cases activists operate in isolation, lacking the help of state institutions and often also of NGOs. They have trouble framing their action as rightful, especially if they have to react against violence, sometimes adopting physical force themselves. Isolated activism by citizens and social organizations seems to be an overlooked and perhaps also a newly developing form of social action in China that requires more study, as do the links between embedded organizations such as CLAPV and isolated activists. In addition, further study needs to be carried out on the support of national news media for prosecuted isolated green activists, which seems to be signi?cant albeit with little effect. 118 Health played an important role in many activist cases against pollution. In many cases studied health aspects were serious, with cancer villages or townships as the worst examples. Health impacts were a major factor in the long process of developing awareness about the effects of pollution in cases where pollution has been a structural long-term problem rather than incidental, and seems to have in?uenced a transformation from awareness to action, especially in cases of collective action such as protests. Health effects are also what drew media attention and support for the often isolated activists against pollution. The importance of health in these cases is not absolute, however, as many citizens have become activists largely for economic reasons, ending their actions once compensation was paid, even though the pollution problem at hand had not been solved. Here the problem seems to be poverty and inequality, perhaps combined with suf?cient knowledge and awareness of health effects. Health has also challenged pollution activism, as the complex linkages between pollution and disease have made awareness a slow process and collecting evidence for this relationship, even though not required by law, dif?cult. Here expert advice on the health effects of pollutants and statistical evidence for abnormal disease occurrences are important. The role of health in the development of grievances and the progress and success of different types of action is an important topic of study for future research. Such research could delve deeper into how citizen perceptions of health and pollution develop into grievances and action. It could also probe how perceptions about the impact of pollution on health and the importance of health in?uence environmental institutions and enterprises targeted by citizen action. Such research could inform policy, by showing how concern for health can improve the effectiveness of environmental regulation. In conclusion, it seems that China faces a rocky road in terms of citizen activism against pollution. While embedded organizations and pro-environmental government of?cials have been able to slowly make China’s political agenda greener, there is still much resistance to the implementation of this agenda in everyday practice. Meanwhile pollution continues, and will be dif?cult to control or decrease given China’s continued economic growth. As long as environmental authorities and local governments remain unresponsive, and as long as courts remain dif?cult to access and ineffective, pollution victims are likely to continue to choose political action, regardless of the constraints they face. 2AC The U.S. military’s recent move to lessen its use of fossil fuels is evidence of a laudable trend that the Obama administration and the Pentagon are taking their environmental responsibility seriously. They are recognizing that a clean, healthy environment is something that we should fight to defend and not destroy in preparing for and waging war. This year, while Congress struggled unsuccessfully to pass legislation on climate change and state and federal government agencies put renewable energy on hold due to the recession, the military took significant steps in pursuing renewable energy and decreasing its energy consumption. The federal government is the largest energy consumer in the United States. Using nearly 300,000 barrels of oil each day, the Defense Department is responsible for 80 percent of the federal government’s energy usage. On October 5, 2009, President Obama signed Executive Order 13514, Federal Leadership in Environmental, Energy, and Economic Performance. In response, the Pentagon set an emission reduction target of 34 percent by 2020, higher than any other federal agency and higher than the 28 percent President Obama has announced as a requirement for the federal government. To achieve the emission reduction target, the military is already taking steps to increase its reliance on renewable energy and to reduce its energy consumption overall. In July, the Pentagon appointed its first director of operational energy plans programs, with a mission to “reduce the amount for energy needed in war zones, and decrease the risk to troops that transport and guard the military’s fuel.” All branches of the military have taken steps toward sustainable development and environmentally friendly practices: the Army has been testing tents that trap warm and cool air and developing diesel-electric trucks; the Marines are using solar-powered water purification systems and spray insulation for tents; the Navy has a comprehensive model for development of biofuels; and the Air Force hopes to have an entire fleet certified to fly on biofuels by 2011. The 3rd Battalion, 5th Marine Regiment’s Company I was the first to take renewable technology into the battle zone. The 150 Marines involved in the mission traveled to Afghanistan with “portable solar panels that fold up into boxes, energy conserving lights, solar tent shields that provide shade and electricity, and solar chargers for computers and communication equipment.” In the past, the large truck convoys that brought fuel to bases in Afghanistan were easy targets for enemy combatants. One Army study found that for every 24 convoys, one soldier or civilian engaged in the transport was killed. If the military is successful in providing its personnel with independently sustainable methods of energy production, the dangerous convoys will no longer be required. Will comply – even if they disagree Insisting on a sharp distinction between the law governing presidential authority that is subject to judicial review and the law that is not also takes for granted a phenomenon that merits attention - that Presidents follow judicial decisions. n118 That assumption is generally accurate in the United States today. To take one relatively recent example, despite disagreeing with the Supreme Court's determination in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions applies to the war on terror, the Bush Administration quickly accepted it. n119 But the reason why Presidents abide by court decisions has a connection to the broader issue *1131 of the constraining effect of law. An executive obligation to comply with judicial decisions is itself part of the practice-based constitutional law of the United States, so presidential compliance with this obligation may demonstrate that such law can in fact constrain the President. This is true, as we explain further in Part III, even if the effect on presidential behavior is motivated by concerns about external political perceptions rather than an internal sense of fidelity to law (or judicial review). n120 The House Foreign Affairs Committee (hereinafter H.F.A.C) has adopted its own de?nition of hostilities. The H.F.A.C. Report discusses the background, constitutional context, and intent of the WPR. The section-by-section analysis of the H.F.A.C. Report is the clearest statement of the definition of hostilities to be found: The word hostilities was substituted for the phrase armed con?ict during the subcommittee drafting process because it was considered to be somewhat broader in scope. In addition to a situation in which ?ghting actually has begun, hostilities also encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict. Imminent hostilities denotes a situation in which there is a clear potential either for such a state of confrontation or for actual armed conflict. Hearings were held during the Ford Administration in which Chair- man Zablocki used the definition as a benchmark in questioning legal advisors to the President)” The use of this de?nition by Zablocki supports a broad interpretation of hostilities because as long as a clear and present danger of armed con?ict exists, even though no shots have been ?red, hostilities are present.United States forces are not required to accompany foreign forces in combat or on operational patrols. The President, however, has persisted in defining hostilities more narrowly than Congress apparently intended. The Ford and Reagan Administrations have both adopted a narrow de?nition of hostilities that con?icts with the H.F.A.C. de?nition. The determination that “hostilities” is an ambiguous term and therefore, susceptible to different meanings, is supported by selected provisions from congressional hearings. In general, opposition to de?ning hostilities precisely or too narrowly was evidenced throughout congressional hearing records. The idea of making a “laundry list” or spelling out the circumstances in which the President may involve the military in the absence of a declaration of war was rejected.'°’ Rather than attempting to codify the circumstances that define hostilities, Professor Bickel, a noted constitutional law expert and Professor of Law at Yale University, stated that the preferable mode was a good faith understanding of the term and an assumption that Presidents would act in good faith to discharge their duties.“ Senator Javits, one of the chief sponsors of the WPR, acknowledged that the resolu- tion did not endeavor to spell out a definition of hostilities, but adopted the term as a word of basic understanding)" Members of Congress recognized the peril in trying to be too exact with defini- tions because of the difficulties in achieving a terminology that could anticipate all the emergencies which might arise. By choosing a general approach, rather than trying to be too exact in de?nitions, something was “left to judgment, the intelligence, and the wisdom” of members of Congress and the President.'" Based on the hearings, some evidence also exists that hostilities was deliberately left undefined and ambiguous so that the meaning of the word could be clari?ed or gradually spelled out by experience. CP The Court had not yet handed down its ruling in Raich at the time this article was written and I find myself in the awkward position of speculating in writing about a ruling that may have been delivered by the time my words are published. At the time that I am writing, it seems quite possible that the Court will dodge the difficult question of whether Wickard's aggregation principle is inconsistent with Lopez/Morrison's non-infinity principle. It could do so by deciding Raich on very narrow grounds. For example, one way to evade the issue would be to distinguish Wickard on its facts, as respondents urged in their merits brief and Justice O'Connor appeared to support during oral argument. 225 Another way would be to distinguish Morrison and Lopez on their facts and find the intrastate activity at issue in Raich to fall "on the constitutional side of the line that separates the Lopez and Morrison case," as the government contended during oral argument and Justice Breyer seemed, at that time, to support. 226 But for the Court to rule so narrowly would be regrettable, because this would fail to assist lower courts in future cases who find themselves in the impossible situation of attempting to respect the *124 non-infinity principle and the aggregation principle. It would be more likely to perpetuate the Circuit split than to lead the Circuits toward a uniform approach to aggregation. Their second explanation attributes lower courts' unwillingness to follow Lopez, Morrison, and Jones to "an increasingly unmanageable caseload," causing courts to cut corners and put forth low quality work. 477 As evidence, they point to the fact that in many Commerce Clause cases there was no oral argument and courts issued per curium and unpublished opinions, markers found to correlate with shoddy jurisprudence. 478 Yet, Reynolds and Denning acknowledge that upholding federal laws by discounting or misapplying precedent only assures more cases, not less. 479 This begs the question, not addressed, that if large, federal caseloads are a true motivating factor for misapplying the Lopez line of cases, then wouldn't those judges want to invalidate the laws, instead of upholding them, thereby reducing the caseload? Perhaps the question of ideology deserves more attention than Reynolds and Denning give it. In any event, as in their 2000 pre-Morrison, post-Lopez survey, Reynolds and Denning end by noting a need for the Supreme Court to provide a less malleable and more "rule-like" standard for deciding Commerce Clause cases. 480 Executive CP w/NEPA – 2AC Counterplan preserves the current precedent – prevents citizen enforcement efforts The Supreme Court's approach to standing, therefore, raises serious questions about the viability of a bedrock of U.S. environmental law - the citizen suit. Cass Sunstein concluded in the wake of Lujan that "it is now *405 apparently the law that Article III forbids Congress from granting standing to "citizens' to bring suit." n48 At the very least, as we have seen, these developments in standing doctrine will make the burdens on citizens and environmental groups more onerous. I will argue in Part II that standing doctrine may someday present insuperable obstacles to citizen suit enforcement with respect to international environmental problems that are yet to be comprehensively addressed under U.S. law. The growing doctrinal obstacles to the enforcement of federal environmental law via citizen suit are not, of course, strictly confined to Article III standing. A wide range of justiciability doctrines deter and weaken environmental citizen suits, including the Administrative Procedure Act's bar on "programmatic" challenges to agency action, announced in Lujan v. National Wildlife Federation, n49 and the arcane distinctions in Norton v. SUWA between agency "action" and agency "inaction" for purposes of determining whether the APA permits suit. n50 Perhaps the most prominent of these developments is the Court's 2008 decision in Winter v. NRDC, which raised the bar for even successful environmental plaintiffs to obtain injunctive relief. n51 In Winter, the Court decided that the balance of the equities and the public interest weighed against granting a preliminary injunction to environmental groups seeking to force the Navy to comply with the National Environmental Policy Act. n52 Particularly in the way it characterized the harms to be balanced in that inquiry - considering the risk of a national security incident but holding the environmental plaintiffs to a standard of actual, documented, past harm to wildlife - the Court took an approach to balancing that seemed systematically to disadvantage environmental plaintiffs. Interestingly, there were echoes of the Court's environmental standing jurisprudence in its balancing-of-the-harms analysis in Winter. Though NEPA is a procedural statute, the court did not consider or weigh any procedural harms on the side of the environmental plaintiffs, focusing instead on the types of harms that environmental plaintiffs traditionally have had to rely on to establish standing - individualized scientific, recreational and aesthetic harms. n53 At oral argument, Justice Scalia went so far as to evoke explicitly the requirements of Article III standing in the *406 discussion of what harms count for purposes of equitable injunctions. n54 Thus Winter may yet provide a new opening for reinserting common law conceptions of injury into these complex regulatory disputes. n55 Perhaps most significantly, Winter also announced that a district court would abuse its discretion in granting an injunction to the environmental groups even if they ultimately prevailed on the merits. n56 Winter thus appears to represent another significant obstacle in the path of environmental groups trying to force executive compliance with the law. Importantly, however, the decisions in National Wildlife Federation, Norton v. SUWA and Winters are not constitutional. Given sufficient political will, Congress can smooth those obstacles to environmental citizen suits by amending the Administrative Procedure Act and Federal Rule of Civil Procedure 65(a), governing preliminary injunctions. Because the core of Article III standing doctrine is, by contrast, beyond the capacity of Congress to alter by statute, standing decisions are likely to impose the steepest costs in enforcement of environmental law in the future. This cost to effective enforcement should be borne in mind as courts decide whether to embark down any of the several avenues that exist for reconciling Article III standing and environmental citizen suits. First, courts can opt to extend the Massachusetts approach to causation and redressability to all plaintiffs, rather than confining it to states. They also might accommodate citizen suits by indulging in some slight of hand concerning the nature of the injury that is required. Courts have shown themselves willing, in the past, to sidestep standing difficulties by simply redefining the injury. n57 Thus, in Laidlaw, a "reasonable fear" of illness stemming from toxic emissions was enough to confer standing. n58 A generous application of the "reasonable fear" approach could go a long way towards getting *407 environmental groups into court. Finally, the most accommodating way forward, by far, would be to recognize the power of Congress to define injuries and articulate chains of causation free from the constraints of the common law. III. The Problem of Compliance The ability of citizens to access courts in order to compel executive compliance with environmental laws may have important repercussions on the international plane, because domestic enforcement bears on one of the most fundamental questions in the design of international environmental agreements - why do states comply with their commitments? International environmental problems require deep cooperation among states. Given the prevalence of physical, economic, and psychological externalities associated with environmentally harmful practices, cooperation is necessary to the realization of the mutual benefits of common solutions. n59 Negotiated agreements, of course, only facilitate cooperation if states comply with them. Furthermore, expectations about compliance will often constrain the depth of the commitments that states are willing to make - that is, the extent to which they are willing to depart from the course that they would have taken in the absence of cooperation. Just as in private contract situations, states need to be able to rely on credible commitments by other states, especially when the contemplated activities are highly reciprocal. A state party may not be willing to embark on a path of costly pollution control, for example, without highly credible commitments from peer states that they will make the same sacrifices. David Victor blames the shallowness of international environmental law generally on the failure of efforts to develop effective compliance mechanisms. n60 The risk of defection in the environmental context is generally quite high. Because of scientific and economic uncertainty, the costs and benefits of cooperation are difficult to predict and assess ex ante. Moreover, this uncertainty is magnified by the long duration of cooperation that is often necessary to deal effectively with serious environmental problems. Similarly, political economy models predict that compliance with environmental commitments will be inconsistent. n61 The costs of *408 environmental regulation are typically highly concentrated, so that regulated sectors - industry groups in particular - have strong incentives to oppose compliance over time. The benefits of regulation, by contrast, are typically diffuse. Beneficiaries face higher transaction costs in organizing in favor of compliance, and high levels of political mobilization may be unsustainable over the long term. As Sunstein argues, the fact that environmental commitments are concluded at all often has to do with the "availability heuristic." n62 By this reasoning, environmental regulation has more widespread appeal when environmental harms are more "cognitively available" - when vivid and salient examples are present in the popular consciousness. As the cognitive availability of environmental harms fades, popular support for costly regulatory measures - and thus for compliance with environmental agreements that compel such measures - tends to fade as well. Given these challenges, how can the advocates of international environmental cooperation ensure compliance with negotiated agreements? A wide variety of explanations have been advanced to explain observed compliance. They need not be viewed as mutually exclusive; more likely, each of these mechanisms contributes in some respect to state compliance. The leading explanations include the reputational costs of defection, n63 the perceived fairness and legitimacy of negotiated agreements, n64 social learning, n65 and administrative capacity-building, both bilateral and multilateral. n66 Transnational legal process theorists, such as Harold Koh and Anne Marie Slaughter, predict greater compliance stemming from interactions - direct and indirect - between the legal institutions, broadly understood, of different countries. n67 NEPA has the twin aims of obligating a federal agency to consider environmental impacts before undertaking or approving a proposed action, and ensuring that the public is informed. The draft SWEIS is inadequate under the National Environmental Policy Act because it lacks a “hard look” at the impacts of a possible terrorist attack. There is no “national security” exemption from NEPA. Allowing a “security exemption” from NEPA would be inconsistent with one of NEPA’s purposes: to ensure that the public can contribute to the body of information being considered by the agency. The recent Mother’s for Peace decision in the 9th Circuit Court of Appeals held that if the risk of a terrorist attack is signi? cant (which it is at Los Alamos) then NEPA requires taking a “hard look” at the environmental consequences of a terrorist attack. Please revise your draft SWEIS and re-release it so that that public will have an opportunity to comment on this important aspect of the required NEPA analysis. BSL-3 and/or BSL-4 Laboratory Space The Department of Energy is going full speed ahead in building more and more biodefense labs and facilities, including the one being reviewed at the Los Alamos National Lab. All of this work is going forward without a national plan that assesses where these labs should be, what their role is, how many are really needed, methods of oversight, transparency, and reporting requirements. A NEPA document is urgently needed to assess these issues in a forum where the public can comment. We believe Homeland Security should not be locating these advanced biodefense facilities inside nuclear weapons labs because it cloaks this work in a veil of secrecy and creates a “perception problem” whereas other countries could assume we’re conducting offensive research and / or may choose to collocate their advance biodefense research inside their nuclear weapons facilities. Finally, the Winter Court's willingness to defer to the Navy's judgment and to allow the Navy to bypass clear NEPA requirements is part of a broader, more troubling trend. Professor Babcock accuses the Department of Defense ("DOD") of manipulating post-9/11 national security concerns to stage an offensive against constraining environmental legislation. n138 Professor Babcock explains this trend in light of the broader post-9/11 erosion of civil liberties exemplified by the USA PATRIOT Act. n139 The USA PATRIOT Act, enacted in the months immediately following 9/11, was intended to enhance the government's power to combat terrorist threats, but had the additional effect of eroding civil liberties. n140 Until recently, the military had to resort to various statutory waiver systems to circumvent environmental legislation. n141 But military efforts to curtail environmental legislation found new traction in the post-9/11 and post-USA PATRIOT Act reality. n142 For example, in the years immediately following the 9/11 terrorist attacks, the DOD convinced Congress to exempt the military from key areas of the Migratory Bird Treaty Act ("MBTA"), the Marine Mammal Protection Act ("MMPA"), and the Endangered Species Act ("ESA"). n143 These exemptions were characterized as essential to national security. n144 This trend shows no sign of slowing. n145 In fact, the Navy urged the Court in Winters to view the Navy's MMPA exemption as evidence that other environmental regimes should necessarily be subordinated to military *212 training. n146 Then-Vice President Dick Cheney referred to the post-9/11 restrictions on civil liberties as "the new normalcy." n147 These assertions suggest an intent to roll back all constraining environmental legislation, not just MMPA or NEPA, which should have given the Court pause. With Winter, this troubling trend has spread to NEPA. The Court accepted the Navy's tenuous assertion that the SOCAL training exercises are necessary to ensure military preparedness. n148 Such deference to the Navy's factual determinations, and willingness to create military exemptions to existing environmental regimes, allows the military to dodge its environmental obligations. While deference to the military's professional judgment is to a certain extent desirable, it is possible for courts to defer to an unreasonable extent. When a court unquestioningly accepts one party's characterization of a case, the court simply cannot accurately evaluate the propriety of injunctive relief. In Winter, the Court's complete deference to the Navy's factual determinations unfairly tipped the balance of equities and public policy interests against the plaintiffs. The Court's complete deference to the Navy will likely have an impact far beyond the parties involved. First, the Court's decision implies that the military can comply with NEPA's objectives without having to comply with NEPA procedures. Second, the Court's decision perpetuates the military's offensive against "constraining" environmental legislation. n149 In Winter, the Court missed out on an opportunity to slow this trend, and prevent the military's rollback of environmental legislation. Legal decision key First, government actors have a need for legal clarity, particularly in national-security areas where the legal questions are novel and the stakes of guessing wrong particularly high. In the absence of more definitive court guidance, government lawyers and policymakers have spent a staggering number of hours trying to anticipate what courts might conclude is the valid scope of the government’s power to detain, or to use military trials, and similar questions. In many contexts, a significant element in what government actors need is simply legal clarity; knowledge of where the lines lie between the permitted and the forbidden can help government actors figure out how best to reach their legitimate goals. Surely there is something not fully functional about a system that requires a decade’s worth of guesswork, and all the resources involved, about exactly where the legal boundaries lie. Ptix For President Obama and advocates hoping for a House vote on immigration reform this year, the reality is simple: Fat chance. ¶ Since the shutdown, Obama has repeatedly sought to turn the nation’s focus to immigration reform and pressure Republicans to take up the Senate’s bill, or something similar.¶ But there are no signs that Republicans are feeling any pressure.¶ Speaker John Boehner (R-Ohio) has repeatedly ruled out taking up the comprehensive Senate bill, and senior Republicans say it is unlikely that the party, bruised from its internal battle over the government shutdown, would pivot quickly to an issue that has long rankled conservatives.¶ Rep. Tom Cole (R-Okla.), a leadership ally, told reporters Wednesday there is virtually no chance the party would take up immigration reform before the next round of budget and debt-ceiling fights are settled. While that could happen by December if a budget conference committee strikes an agreement, that fight is more likely to drag on well into 2014: The next deadline for lifting the debt ceiling, for example, is not until Feb. 7.¶ “I don’t even think we’ll get to that point until we get these other problems solved,” Cole said.¶ He said it was unrealistic to expect the House to be able to tackle what he called the “divisive and difficult issue” of immigration when it can barely handle the most basic task of keeping the government’s lights on.¶ “We’re not sure we can chew gum, let alone walk and chew gum, so let’s just chew gum for a while,” Cole said.¶ In a colloquy on the House floor, Minority Whip Steny Hoyer (D-Md.) asked Majority Leader Eric Cantor (R-Va.) to outline the GOP's agenda between now and the end of 2013.¶ Cantor rattled off a handful of issues — finishing a farm bill, energy legislation, more efforts to go after ObamaCare — but immigration reform was notably absent.¶ When Hoyer asked Cantor directly on the House floor for an update on immigration efforts, the majority leader was similarly vague.¶ “There are plenty of bipartisan efforts underway and in discussion between members on both sides of the aisle to try and address what is broken about our immigration system,” Cantor said. “The committees are still working on this issue, and I expect us to move forward this year in trying to address reform and what is broken about our system.”¶ Immigration reform advocates in both parties have long set the end of the year as a soft deadline for enacting an overhaul because of the assumption that it would be impossible to pass such contentious legislation in an election year.¶ Aides say party leaders have not ruled out bringing up immigration reform in the next two months, but there is no current plan to do so.¶ The legislative calendar is also quite limited; because of holidays and recesses, the House is scheduled to be in session for just five weeks for the remainder of the year. ¶ In recent weeks, however, some advocates have held out hope that the issue would remain viable for the first few months of 2014, before the midterm congressional campaigns heat up.¶ Democrats and immigration reform activists have long vowed to punish Republicans in 2014 if they stymie reform efforts, and the issue is expected to play prominently in districts with a significant percentage of Hispanic voters next year.¶ With the shutdown having sent the GOP’s approval rating plummeting, Democrats have appealed to Republicans to use immigration reform as a chance to demonstrate to voters that the two parties can work together and that Congress can do more than simply careen from crisis to crisis.¶ “Rather than create problems, let’s prove to the American people that Washington can actually solve some problems,” Obama said Thursday in his latest effort to spur the issue on.¶ But Republicans largely dismiss that line of thinking and say the two-week shutdown damaged what little trust between the GOP and Obama there was at the outset.¶ “There is a sincere desire to get it done, but there is also very little goodwill after the president spent the last two months refusing to work with us,” a House GOP leadership aide said. “In that way, his approach in the fiscal fights was very short-sighted: It made his achieving his real priorities much more difficult.” Obama Good – 2AC 5. Plan’s announced in June On Tuesday, in his State of the Union address, President Obama will do what every president does this time of year. For about 60 minutes, he will lay out a sprawling and ambitious wish list highlighted by gun control and immigration reform, climate change and debt reduction. In response, the pundits will do what they always do this time of year: They will talk about how unrealistic most of the proposals are, discussions often informed by sagacious reckonings of how much “political capital” Obama possesses to push his program through. Most of this talk will have no bearing on what actually happens over the next four years. Consider this: Three months ago, just before the November election, if someone had talked seriously about Obama having enough political capital to oversee passage of both immigration reform and gun-control legislation at the beginning of his second term—even after winning the election by 4 percentage points and 5 million votes (the actual final tally)—this person would have been called crazy and stripped of his pundit’s license. (It doesn’t exist, but it ought to.) In his first term, in a starkly polarized country, the president had been so frustrated by GOP resistance that he finally issued a limited executive order last August permitting immigrants who entered the country illegally as children to work without fear of deportation for at least two years. Obama didn’t dare to even bring up gun control, a Democratic “third rail” that has cost the party elections and that actually might have been even less popular on the right than the president’s health care law. And yet, for reasons that have very little to do with Obama’s personal prestige or popularity—variously put in terms of a “mandate” or “political capital”—chances are fair that both will now happen. What changed? In the case of gun control, of course, it wasn’t the election. It was the horror of the 20 first-graders who were slaughtered in Newtown, Conn., in mid-December. The sickening reality of little girls and boys riddled with bullets from a high-capacity assault weapon seemed to precipitate a sudden tipping point in the national conscience. One thing changed after another. Wayne LaPierre of the National Rifle Association marginalized himself with poorly chosen comments soon after the massacre. The pro-gun lobby, once a phalanx of opposition, began to fissure into reasonables and crazies. Former Rep. Gabrielle Giffords, D-Ariz., who was shot in the head two years ago and is still struggling to speak and walk, started a PAC with her husband to appeal to the moderate middle of gun owners. Then she gave riveting and poignant testimony to the Senate, challenging lawmakers: “Be bold.” As a result, momentum has appeared to build around some kind of a plan to curtail sales of the most dangerous weapons and ammunition and the way people are permitted to buy them. It’s impossible to say now whether such a bill will pass and, if it does, whether it will make anything more than cosmetic changes to gun laws. But one thing is clear: The political tectonics have shifted dramatically in very little time. Whole new possibilities exist now that didn’t a few weeks ago. Meanwhile, the Republican members of the Senate’s so-called Gang of Eight are pushing hard for a new spirit of compromise on immigration reform, a sharp change after an election year in which the GOP standard-bearer declared he would make life so miserable for the 11 million illegal immigrants in the U.S. that they would “self-deport.” But this turnaround has very little to do with Obama’s personal influence—his political mandate, as it were. It has almost entirely to do with just two numbers: 71 and 27. That’s 71 percent for Obama, 27 percent for Mitt Romney, the breakdown of the Hispanic vote in the 2012 presidential election. Obama drove home his advantage by giving a speech on immigration reform on Jan. 29 at a Hispanic-dominated high school in Nevada, a swing state he won by a surprising 8 percentage points in November. But the movement on immigration has mainly come out of the Republican Party’s recent introspection, and the realization by its more thoughtful members, such as Sen. Marco Rubio of Florida and Gov. BobbyJindal of Louisiana, that without such a shift the party may be facing demographic death in a country where the 2010 census showed, for the first time, that white births have fallen into the minority. It’s got nothing to do with Obama’s political capital or, indeed, Obama at all. The point is not that “political capital” is a meaningless term. Often it is a synonym for “mandate” or “momentum” in the aftermath of a decisive election—and just about every politician ever elected has tried to claim more of a mandate than he actually has. Certainly, Obama can say that because he was elected and Romney wasn’t, he has a better claim on the country’s mood and direction. Many pundits still defend political capital as a useful metaphor at least. “It’s an unquantifiable but meaningful concept,” says Norman Ornstein of the American Enterprise Institute. “You can’t really look at a president and say he’s got 37 ounces of political capital. But the fact is, it’s a concept that matters, if you have popularity and some momentum on your side.” The real problem is that the idea of political capital—or mandates, or momentum—is so poorly defined that presidents and pundits often get it wrong. “Presidents usually over-estimate it,” says George Edwards, a presidential scholar at Texas AandM University. “The best kind of political capital—some sense of an electoral mandate to do something—is very rare. It almost never happens. In 1964, maybe. And to some degree in 1980.” For that reason, political capital is a concept that misleads far more than it enlightens. It is distortionary. It conveys the idea that we know more than we really do about the ever-elusive concept of political power, and it discounts the way unforeseen events can suddenly change everything. Instead, it suggests, erroneously, that a political figure has a concrete amount of political capital to invest, just as someone might have real investment capital—that a particular leader can bank his gains, and the size of his account determines what he can do at any given moment in history. Naturally, any president has practical and electoral limits. Does he have a majority in both chambers of Congress and a cohesive coalition behind him? Obama has neither at present. And unless a surge in the economy—at the moment, still stuck—or some other great victory gives him more momentum, it is inevitable that the closer Obama gets to the 2014 election, the less he will be able to get done. Going into the midterms, Republicans will increasingly avoid any concessions that make him (and the Democrats) stronger. But the abrupt emergence of the immigration and gun-control issues illustrates how suddenly shifts in mood can occur and how political interests can align in new ways just as suddenly. Indeed, the pseudo-concept of political capital masks a larger truth about Washington that is kindergarten simple: You just don’t know what you can do until you try. Or as Ornstein himself once wrote years ago, “Winning wins.” In theory, and in practice, depending on Obama’s handling of any particular issue, even in a polarized time, he could still deliver on a lot of his second-term goals, depending on his skill and the breaks. Unforeseen catalysts can appear, like Newtown. Epiphanies can dawn, such as when many Republican Party leaders suddenly woke up in panic to the huge disparity in the Hispanic vote. Some political scientists who study the elusive calculus of how to pass legislation and run successful presidencies say that political capital is, at best, an empty concept, and that almost nothing in the academic literature successfully quantifies or even defines it. “It can refer to a very abstract thing, like a president’s popularity, but there’s no mechanism there. That makes it kind of useless,” says Richard Bensel, a government professor at Cornell University. Even Ornstein concedes that the calculus is far more complex than the term suggests. Winning on one issue often changes the calculation for the next issue; there is never any known amount of capital. “The idea here is, if an issue comes up where the conventional wisdom is that president is not going to get what he wants, and he gets it, then each time that happens, it changes the calculus of the other actors” Ornstein says. “If they think he’s going to win, they may change positions to get on the winning side. It’s a bandwagon effect.” 1NC Indo-Pak War However, the removal of President Musharraf from power in a landslide election on September 6, 2008 marks the beginning of Asif Ali Zardari’s second rise to power and a new era of Pakistani leadership. 166 At the time of this Note’s writing, Zardari has yet to state his official policy toward India and resolving the Kashmir conflict, but Haider Mullick, War on Terror political analyst, is optimistic.167 Mullick argues that the interdependence of the two nations will be enough to continue the march toward a peaceful resolution, replacing Pakistan’s old policy of “flexing military muscle.”168 The current trend and commitment toward a peaceful resolution reasonably indicates that a successful resolution can be reached sooner rather than later. Hilterman 12 (Joost, Sean Kane, Raad Alkadiri, Analysts @ International Crisis Group, "Iraq's Federalism Quandary, 2/28, http://www.crisisgroup.org/en/regions/middle-east-north-africa/iraq-iran-gulf/iraq/op-eds/hiltermann-iraqs-federalism-quandary.aspx) Asymmetrical federalism is not a novel concept. It has been employed in several countries around the world to recognize diversity and manage internal conflict. The theoretical case for asymmetrical federalism in Iraq should begin with an examination of two main stylized models of federalism: “coming together” and “holding together”.¶ A coming-together model arises when a group of formerly independent or self-governing units join to form a new country. Classic examples include the United States, Australia and the UAE, which formerly consisted of seven independent sheikhdoms. Not surprisingly, those accustomed to ruling themselves are reluctant to abandon power to new national governments. Thus, these coming-together federations are relatively decentralized, with checks on the authority of the central government and the provinces running their own affairs. They also tend to be relatively symmetrical, with all provinces enjoying more or less the same privileges vis-à-vis the center.¶ In contrast, the holding-together model is usually an attempt to maintain the territorial integrity of an existing state. It often occurs in the case of formerly unitary countries that face ethnically or territorially based secessionist threats. In many cases, attempts are made to reconcile these groups through a grant of special autonomy. The result can be an asymmetrical structure, where the potential breakaway province enjoys heightened self-government compared to other territories in the union. While few countries are purely symmetrical, asymmetrical federations are distinguished by the deliberate nature of these special arrangements, which are protected in laws or the constitution. Recently, in the case of Banda Aceh and Indonesia, asymmetrical arrangements helped end a long-running internal conflict. In other countries, such as Spain, these arrangements have been used to forestall wider conflict by granting cultural and administrative autonomy to Basque and Catalan communities.¶ The puzzle of Iraq’s 2005 constitution is that it introduced a coming-together symmetrical model of federalism rather than building on the clear asymmetrical foundation of the Kurdish safe haven established after the 1991 Gulf War. An examination of the recent history of devolution in Iraq suggests that a holding-together asymmetrical model may better promote stability by serving the interests of all parties.¶ The genesis of Iraq’s new federal system lies in the aftermath of the 1991 Gulf War, when exile groups stepped out from the regime’s shadow of fear to plot its demise. They were a motley collection of secularists and Islamists, Arabs and Kurds, all with their own visions of a post-Saddam Iraq.¶ The Kurds had long aimed to build on an autonomy agreement negotiated with the Baathists in the 1970s that was never implemented. Motivated by their desire for a Kurdish state and the fresh horrors of a genocidal Iraqi Army campaign against them in the late 1980s, Kurds in the post-Saddam era pushed for something more extensive: an ethnically based confederation that would afford the Kurds maximum autonomy over their own affairs. The Kurds’ partners in opposition had not given the idea of federalism much thought, but many agreed.¶ A central ally to the Kurds in this quest was a party then known as the Supreme Council for the Islamic Revolution in Iraq (SCIRI). SCIRI was a Shia Islamist party established by the Iranians in 1982 during the Iran-Iraq War that was dedicated to overthrowing Saddam’s regime. It saw decentralization as both the best guarantee against a return to dictatorship and a good way to protect Shia interests in the new state. In 2007, SCIRI renamed itself the Islamic Supreme Council of Iraq (ISCI), deemphasizing its historical ties to Iran’s revolutionary regime.¶ ISCI and the Kurds’ calculations on federalism were not solely about identity. The Kurds saw in federalism the freedom to develop their local oil assets, which would allow them the ability to run their own affairs without being financially dependent on Baghdad. Meanwhile, the Shia region in southern Iraq that ISCI was to propose was not coincidentally home to the majority of Iraq’s vast oil reserves.¶ The United States, following its overthrow of Saddam’s regime in 2003, made no secret of its own preference for a decentralized Iraq, sharing with the opposition the view that this would prevent the return of dictatorship. From the start, the term used was federalism. With their close ties to the Bush administration, the Kurds and certain ISCI leaders returning from exile had a head start that allowed them to leave an outsized imprint on the new state structure. The areas outside the Kurdistan region, which had yet to produce homegrown parties, were not positioned to give strong expression to their populations’ wills.¶ Yet resistance to federalism began almost right away. Iraqi nationalists, many with links to the former regime, championed the state’s paramount unity but struggled to articulate a practical alternative to the previous, now-discredited centralization. They were joined by what remained of Iraq’s secular elite and important parts of the Shia clerical leadership. Moreover, some Shia Islamist political leaders outside ISCI, now well on their way to gaining significant power in Baghdad, sought to protect their new domain and began to suggest that Iraqis were not yet ready for federalism. Many advocates of continuing or racheting up our presence in Afghanistan are cut from the same domino-theory cloth as those of the Vietnam era. They posit that losing in Afghanistan would almost certainly lead to the further “loss” of the entire South and central Asian region. Although avoiding explicit reference to “falling dominos,” recent examples include S. Frederick Starr (School of Advanced International Studies, Johns Hopkins University); Sir David Richards (the UK’s relatively new Chief of the General Staff); and, in The National Interest, Ahmed Rashid. The fear that Pakistan and central Asian governments are too weak to withstand the Taliban leads logically to the proposition—just as it did forty years ago—that only the United States can defend the region from its own extremist groups and, therefore, that any loss of faith in America will result in a net gain for pan-Islamist movements in a zero-sum global competition for power. Unfortunately, the resurrection of “falling dominos” as a metaphor for predicted consequences of an American military withdrawal reflects a profound inability to re-envision the nature of today’s global political environment and America’s place in it. The current worry is that Pakistan will revive support for the Taliban and return to its historically rooted policy of noninterference in local governance or security arrangements along the frontier. This fear is compounded by a vision of radical Islamists gaining access to Pakistan’s nuclear arsenal. Those concerns are fueled by the judgment that Pakistan’s new democratically elected civilian government is too weak to withstand pressures by its most senior military officers to keep its pro-Afghan Taliban option open. From that perspective, any sign of American “dithering” would reinforce that historically-rooted preference, even as the imperative would remain to separate the Pakistani-Taliban from the Afghan insurgents. Further, any significant increase in terrorist violence, especially within major Pakistani urban centers, would likely lead to the imposition of martial law and return to an authoritarian military regime, weakening American influence even further. At its most extreme, that scenario ends with the most frightening outcome of all—the overthrow of relatively secular senior Pakistani generals by a pro-Islamist and anti-Western group of second-tier officers with access to that country’s nuclear weapons. Beyond Pakistan, advocates of today’s domino theory point to the Taliban’s links to both the Islamic Movement of Uzbekistan and the Islamic Jihad Union, and conclude that a Taliban victory in Afghanistan would encourage similar radical Islamist movements in Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan. In the face of a scenario of increasing radicalization along Russia’s relatively new, southern borders, domino theorists argue that a NATO retreat from Afghanistan would spur the projection of its own military and political power into the resulting “vacuum” there. The primary problem with the worst-case scenarios predicted by the domino theorists is that no analyst is really prescient enough to accurately predict how decisions made by the United States today will affect future outcomes in the South and central Asian region. Their forecasts might occur whether or not the United States withdraws or, alternatively, increases its forces in Afghanistan. Worse, it is entirely possible that the most dreaded consequences will occur only as the result of a decision to stay. With the benefit of hindsight, we know that the earlier domino theory falsely represented interstate and domestic political realities throughout most of Southeast Asia in 1975. Although it is true that American influence throughout much of Southeast Asia suffered for a few years following Communist victories in Cambodia, Laos and Vietnam, we now know that while we viewed the Vietnam War as part of a larger conflict, our opponent’s focus was limited to the unification of their own country. Although border disputes erupted between Vietnam and Cambodia, China and the Philippines, actual military conflicts occurred only between the supposedly fraternal Communist governments of Vietnam, China and Cambodia. Neither of the two competing Communist regimes in Cambodia survived. Further, no serious threats to install Communist regimes were initiated outside of Indochina, and, most importantly, the current political situation in Southeast Asia now conforms closely to what Washington had hoped to achieve in the first place. It is, of course, unfortunate that the transition from military conflict in Vietnam to the welcome situation in Southeast Asia today was initially violent, messy, bloody, and fraught with revenge and violations of human rights. But as the perpetrators, magnitude, and victims of violence changed, the level of violence eventually declined. Hubbell 10/7/13 (Webb, former Associate Attorney General of the United States, "Shutdown Or Not, SCOTUS Is Back," http://www.talkradionews.com/supreme-court/2013/10/07/shutdown-or-not-scotus-is-back.html#.UmbsO_msiSo) Bond v. United States. After discovering that her best friend and husband were having an affair, Carol Anne Bond attempted to poison her friend by spreading chemicals on her mailbox, car door and front door. This resulted in a federal prosecution under the Chemical Weapons Act. Bond now disputes Congress’s power to implement the Chemical Weapons Convention Treaty by creating a law to enforce it. She argues that the federal government lacks a plenary police power and that Congress’s authority to pass treaty-implementing legislation should not be an end run around its enumerated powers. The government argues that the Court has never invalidated the implementation of a treaty and, further, maintains that the Chemical Weapons Act is a valid exercise of Congress’s power to regulate commerce.¶ Early Prediction: Besides putting at question Congress’s power to implement a treaty, this case has added significance in light of what has been happening in Syria these last few months. In this age of letting the federal government do what it wants when it comes to “terrorism,” there is no way the Court will invalidate this law. Court Politics DA – 2AC So, did Roberts and Alito lie during their confirmation hearings? n4 Did they duplicitously proclaim dedication to the rule of law while secretly planning to implement their political agendas? While I disagree with the justices' votes in practically every controversial case, Roberts and Alito most likely answered senators' questions sincerely, and the justices have probably applied the rule of law in good faith during their initial terms. But, one might ask, how is this possible when they repeatedly vote for the conservative judicial outcome? Most simply, law and politics are not opposites. Roberts, Alito, and the other justices do not necessarily disregard the law merely because they vote to decide cases consistent with their respective political ideologies. As a general matter, Supreme Court justices can decide legal disputes in accordance with law while simultaneously following their political preferences. *18 I elaborate this thesis by critiquing the theories of Judge Richard Posner n5 and Professor Ronald Dworkin, n6 two of the most prominent jurisprudents of this era. Embattled opponents, Posner and Dworkin have, for years, relentlessly attacked each other while developing strikingly different depictions of law and adjudication. n7 Despite their opposition, however, Posner and Dworkin together challenge a primary assumption of traditional jurisprudence - an assumption featured during Roberts's and Alito's Senate confirmation hearings. Most senators, jurists, and legal scholars assume that legal interpretation and judicial decision making can be separated from politics, that a judge or justice who decides according to political ideology skews or corrupts the judicial process. n8 Posner and Dworkin reject this traditional approach, particularly for hard cases at the level of the Supreme Court. Each in his own way asserts and explains the power of politics in adjudication: the justices self-consciously vote and thus decide cases according to their political ideologies. Posner and Dworkin agree that the justices do not, and should not, decide hard cases by applying an ostensibly clear rule of law in a mechanical fashion. The justices must be political in an open and expansive manner. n9 Supreme Court adjudication is, in other words, politics writ large. The conflicts between Posner and Dworkin stem from their distinct views of politics. Posner views politics as a pluralist battle among self-interested individuals and groups. He therefore argues that Supreme Court adjudication, manifesting politics writ large, should (and in fact does) entail a pragmatic focus on consequences. The justices should resolve cases by looking to the future and by aiming to do what is best in both the short and long term. n10 Dworkin, repudiating a pragmatic politics of self-interest, favors instead a politics of principles. Thus, according to Dworkin, the justices should resolve hard cases by applying law as integrity. They should theorize about the political-moral principles that fit the doctrinal history - including *19 case precedents and constitutional provisions - and that cast the history in its best moral light. n11 Consequently, although Posner and Dworkin both describe the Supreme Court as a political institution - as engaging in politics writ large - their theories otherwise clash tumultuously. Posner sees an adjudicative politics of interest and unmitigated practicality, while Dworkin sees an adjudicative politics of principles and coherent theory. Unfortunately, both Posner and Dworkin - like Roberts, Alito, and the senators who questioned them - remain stuck within the magnetic field of the traditional law-politics dichotomy. While most jurists, legal scholars, and senators are pulled to the law pole - maintaining that law mandates case results - Posner and Dworkin are pulled to the opposite pole. If politics matter to adjudication, they seem to say, then politics must become the overriding determinant of judicial outcomes. Supreme Court adjudication must be politics writ large. If their view is true, then Supreme Court nominees who declare their fidelity to the rule of law do, in fact, lie: current and future justices decide cases by hewing to their political ideologies, not to legal doctrines and precedents. But in their struggle against the forces of the law-politics dichotomy, Posner and Dworkin overcompensate. They neglect another possibility: namely, that Supreme Court adjudication is politics writ small. As Posner and Dworkin emphasize, the Court is a political institution: the justices' political ideologies always and inevitably influence their votes and decisions. But usually the justices do not self-consciously attempt to impose their politics in an expansive manner. To the contrary, the justices sincerely interpret and apply the law. Yet, because legal interpretation is never mechanical, the justices' political ideologies necessarily shape how they understand the relevant legal texts, whether in constitutional or other cases. 7. Capital resilient Interestingly, though, the Supreme Court has been immune from that cynicism. At a time when other government institutions are often held in disrepute, the Court's credibility is high. Professors John M. Scheb and Williams Lyons set out to measure and determine this. 2 They conducted a survey to answer the question: "How do the American people regard the U.S. Supreme Court?" 3 Their conclusion is important: According to the survey data, Americans render a relatively positive assessment of the U.S. Supreme Court. Not surprisingly, the Court fares considerably better in public opinion than does Congress. The respondents are almost twice as likely to rate the Court's performance as "good' or "excellent' *945 as they are to give these ratings to Congress. By the same token, they are more than twice as likely to rate Congress' performance as "poor.' 4 This survey was done in 1994, 5 before the recent events that likely further damaged Congress' public image. Strikingly, Scheb and Lyons found that the "Court is fairly well-regarded across the lines that usually divide Americans." 6 For example, there are no significant differences between how Democrats and Republicans rate the Court's performance. In short, the Court is a relatively highly regarded institution, more so certainly than Congress or the presidency. 7 This is not a new phenomena. Throughout this century, the Court has handed down controversial rulings. Yet the Court has retained its legitimacy and its rulings have not been disregarded. Judge John Gibbons remarked that the "historical record suggests that far from being the fragile popular institution that scholars like Professor Choper... and Alexander Bickel have perceived it to be, judicial review is in fact quite robust." 8 In fact, even at the times of the most intense criticism of the Supreme Court, the institution has retained its credibility. For example, opposition to the Court was probably at its height in the mid-1930s. In the midst of a depression, the Court was striking down statutes thought to be necessary for economic recovery. In an attempt to change the Court's ideology, President Franklin D. Roosevelt - fresh from a landslide reelection - proposed changing the size of the Court. This "Court packing" plan received little public support. The Senate Judiciary Committee, controlled by Democrats, rejected the proposal and strongly reaffirmed the need for an independent judiciary: Let us now set a salutary precedent that will never be violated. Let us, of the Seventy-fifth Congress,... declare that we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of the liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power, or *946 factional passion, approves any measure we may enact. 9 This is a telling quotation and a powerful example because if anything should have undermined the Court's legitimacy, it was an unpopular Court striking down popular laws enacted by a popular administration in a time of crisis. Public opinion surveys reflect that this Committee report reflected general support for the Supreme Court, despite the unpopularity of its rulings. In 1935 and 1936, most respondents, 53 and 59 respectively, did not favor limiting the power of the Supreme Court in declaring laws unconstitutional. 10 Indeed, the Court's high regard, described by Professors Scheb and Lyons, has been remarkably constant over time. 11 Professor Roger Handberg studied public attitudes about the Supreme Court over several decades and concluded that public support for the institution has not changed significantly and that the "Court has a basic core of support which seems to endure despite severe shocks." 12 Professor John Hart Ely noted this and observed: The possibility of judicial emasculation by way of popular reaction against constitutional review by the courts has not in fact materialized in more than a century and a half of American experience. The warnings probably reached their peak during the Warren years; they were not notably heeded; yet nothing resembling destruction materialized. In fact, the Court's power continued to grow and probably never has been greater than it has been over the past two decades. 13 Why has the Court maintained its legitimacy even when issuing highly controversial rulings? Social science theories of legitimacy offer some explanation. The renowned sociologist Max Weber wrote that there are three major bases for an institution's legitimacy: tradition, rationality and affective ties. 14 That which historically has existed tends to be accepted as legitimate. Therefore, 200 years of *947 judicial review grants the Court enormous credibility. Additionally, that which is rational is likely to be regarded as legitimate. The judiciary's method of giving detailed reasons for its conclusions thus helps to provide it credibility. Finally, that which is charismatic, things to which people have strong affective ties, are accorded legitimacy. It has long been demonstrated that people feel great loyalty to the Constitution. The Court's relationship to the document and its role in interpreting it likely also enhances its legitimacy. More specifically, I suggest that the Court's robust public image is a result of its processes and its producing largely acceptable decisions over a long period of time. The Court is rightly perceived as free from direct political pressure and lobbying, bound by the convention of reaching rational decisions that are justified in opinions, and capable of protecting people from arbitrary government. Social scientists have shown that an institution receives legitimacy from following established procedures. The Court's legitimacy, in part, is based on the perception and reality that it does not decide cases based on the personal interests of the Justices or based on external lobbying and pressures. In a recent book highly critical of the Court, Edward Lazarus lambastes the current Justices, yet he never even suggests a single instance of improper influence or conflict of interest. 15 The Court's credibility is a product of the correct perception that it decides cases based on a formalized procedure: it reads briefs, hears arguments, deliberates, and writes opinions. Indeed, the very process of opinion writing, regardless of their content, is crucial because it makes the Court's decisions seem a product of reason, not simply acts of will. Although the Court's high credibility is a result of this process, I believe that this is necessary for its institutional legitimacy, but not sufficient. The Court also has produced a large body of decisions, that over a long period of time, have generally been accepted by the public. If the Court were to produce a large number of intensely unpopular rulings over a long period of time, its credibility would suffer. In the short-term, its processes ensure its continued legitimacy; in the long-term, overall acceptability of its decisions is sufficient to preserve this credibility. Recognition of the Court's robust legitimacy is important in the on-going debate over judicial review. Many, including those as *948 prominent as Felix Frankfurter, Alexander Bickel, and Jesse Choper, have proclaimed a need for judicial restraint so as to preserve the Court's fragile institutional legitimacy. 16 They argue that the Court must depend on voluntary compliance with its rulings from the other branches of government and that this will not occur unless the Court preserves its fragile legitimacy. Justice Frankfurter dissented in Baker v. Carr, the Supreme Court's landmark decision holding that challenges to malapportionment were justiciable, arguing that the Court was putting its fragile legitimacy at risk. 17 Frankfurter urged restraint, stating: "The Court's authority - possessed of neither the purse nor the sword - ultimately rests on public confidence in its moral sanction." 18 Choper, for example, concludes from this premise that the Court should not rule on federalism or separation of powers issues so as to not squander its political capital in these areas that he sees as less important than individual rights cases. Bickel argued that the Court should practice the "passive virtues" and use justiciability doctrines to avoid highly controversial matters so as to preserve its political capital. 19 Other scholars reason from the same assumption. Daniel Conkle, for example, speaks of the "fragile legitimacy that attaches to Supreme Court pronouncements of constitutional law." 20 I am convinced that these scholars are wrong and that the public image of the Court is not easily tarnished, and preserving it need not be a preoccupation of the Court or constitutional theorists. There is no evidence to support their assertion of fragile public legitimacy and almost 200 years of judicial review refute it. Warfighting Things No relationship between US capabilities and peace One potential explanation for the growth of global peace can be dismissed fairly quickly: US actions do not seem to have contributed much. The limited evidence suggests that there is little reason to believe in the stabilising power of the US hegemon, and that there is no relation between the relative level of American activism and international stability. During the 1990s, the United States cut back on its defence spending fairly substantially. By 1998, the United States was spending $100 billion less on defence in real terms than it had in 1990, a 25 reduction.29 To internationalists, defence hawks and other believers in hegemonic stability, this irresponsible 'peace dividend' endangered both national and global security. 'No serious analyst of American military capabilities', argued neo-conservatives William Kristol and Robert Kagan in 1996, 'doubts that the defense budget has been cut much too far to meet America's responsibilities to itself and to world peace'.30 And yet the verdict from the 1990s is fairly plain: the world grew more peaceful while the United States cut its forces. No state seemed to believe that its security was endangered by a less-capable US military, or at least none took any action that would suggest such a belief. No militaries were enhanced to address power vacuums; no security dilemmas drove insecurity or arms races; no regional balancing occurred once the stabilis-ing presence of the US military was diminished. The rest of the world acted as if the threat of international war was not a pressing concern, despite the reduction in US military capabilities. Most of all, the United States was no less safe. The incidence and magnitude of global conflict declined while the United States cut its military spending under President Bill Clinton, and kept declining as the George W. Bush administration ramped the spending back up. Complex statistical analysis is unnecessary to reach the conclusion that world peace and US military expenditure are unrelated. The Bush Administration has made clear its view that NEPA should be limited to impacts within the United States. In Natural Resources Defense Council v. U.S. Department of the Navy, which challenged the Navy’s testing of low-frequency sonar on the basis that the Navy must prepare an EIS to evaluate impacts on marine mammals, the government argued that NEPA did not apply to the sonar program because most of the testing took place outside the territorial waters of the LLS.*1 The government relied on the presumption against extraterritorial application of federal laws. In a clear and strong decision, the court rejected the claim and held that NEPA applied.45 While the Navy and the NRDC then reached a substantive settlement, congressional legislation that redefined what constitutes "harassment" under the Marine Mammal Protection Act reopened this debate. In Center for Biological Diversity v. National Science Foundation, in which the National Science Foundation's plan to undertake acoustical research in an environmentally sensitive area of the Gulf of California without NEPA compliance was challenged, the United States argued that it need not prepare an environmental review for a project within the Exclusive Economic Zone of Mexico: the court held that the area was the high seas, that NEPA applied, and thus issued a temporary restraining order.1" in Border Power Plant Working Group v. Department of Energy, the federal government argued that the Department of Energy, in permitting transmission lines in the U.S. to connect Mexican power plants to the U.S. grid, need not consider the environmental effects of the power plants.* The court disagreed and held that NEPA requires assessment of effects in the U.S. resulting from power plants in Mexico. Since that ruling, the Department of Energy has undertaken an environmental analysis of the project and took public comments on the draft EIS through June 2004.'11" 2. Current Court decisions over war powers are already hamstringing warfighting and causing battlefield uncertainty The last outcome which I think is surprising about Boumediene is the discussion of the practical concerns. Again and again what the Court does as it reviews the historical records, which are inclusive, is it comes back and says that it looks like the earlier courts were animated by practical considerations.39 So you would expect there to be a really intense practical discussion of what the impact of granting habeas in these cases has on military operations. Here is the kind of practical discussion you get. In Eisentrager, in which the court said there is no habeas right for German prisoners being held in American military prisons in Germany in 1950, the Court mentions in passing that it was concerned about interfering with military operations.40 Now remember, this is 1950. The war has been over for five years. We have had the Marshall Plan, and yet, five years later, the Supreme Court is still worried about interfering with military operations. What does the Boumediene Court say? They say that it is distinguishable because in Eisentrager the Court had a real concern about the occupation; there were Nazi sympathizers; and there was guerrilla warfare. So understandably, there were practical considerations there. That is not present here because we do not have that issue in Guantánamo.41 Again, let me step back. In 1950, I would seriously doubt, five years after the end of the war, that we were spending a lot of time worrying about Nazi insurgents. But I will tell you that in Guantánamo, not only do they have force protection issues with respect to prisoners, but also they have to worry about the impact of what goes on in terms of how they handle prisoners with respect to active combat operations that are literally going on in two theaters of war overseas. So to argue that the military challenges in 1950 were greater than the military challenges in 2007 is frankly counterfactual. And it suggests to me a real problem with the whole practical analysis. So, where has this left us? It has left us in a puzzling situation. In a decision called Al-Bihani in the D.C. Circuit in 2010, Judge Janice Rogers Brown talked about the consequences—practical consequences—of having habeas review in Guantánamo as it affects the battlefield.42 And what she said is that the process at the tail end is now impacting the front end because when you conduct combat operations, you now have to worry about collecting evidence.43 A somewhat darker analysis has been put forward by Ben Wittes who has recently written a book called Detention and Denial, where he argues that the courts have now created an incentive system to kill rather than capture.44 And much of the law of war over the years was designed to move away from the “give no quarter” theory, where you killed everybody at the battlefield, into the theory of you would rather capture than kill. And his point, and you can agree or disagree with it, is that you have now actually loaded it the other way; you have pushed it in the direction of kill rather than capture.45 We have complete uncertainty now in the standards to be applied in the individual cases. If you read Ben Wittes?s book Detention and Denial, he will details about ten or twelve district court cases where literally on the same facts you get different answers.46 And it is not that the district judges are not doing their best, but they have no guidance. There is no standard, and no one has offered them a standard. We now have litigation about Bagram Air Force Base in Afghanistan.47 It was absolutely predictable when Boumediene was decided that the next case would be against Bagram Airbase. I do not know how it is going to come out at the end. I think it is still in the district court, but I will tell you, the logic—now they may have stopped the logic of Guantánamo—the logic of Boumediene certainly raises questions about Bagram. How do you wind up having habeas in Bagram? And then what is going to happen when you are in a forward firebase? Are you going to have habeas cases there? No one knows, but the big problem is that the battlefield commanders do not know either; that is a serious operational problem. In many ways, it is absolutely a great example of what the Court in Eisentrager predicted.48 When you go down this path, you are going to actually have real operational problems with warfighting. But of course, we are not in 1950 now; we are actually in active operations. Finally, and I find this really to be the most interesting contemporary question posed by this series of issues, the press reports—and I cannot verify this, I am not confirming it, but I am assuming it to be true—the press reports that President Obama has authorized the killing of Anwar al-Aulaki, the American citizen in Yemen who is, in my mind for quite good reason, believed to be a major recruiter and operation leader for al-Qaeda.49 I want to be clear: I am perfectly okay with that, and I think it is exactly the right decision, so I do not want to be misunderstood. But I will say that if you read the decision and logic of Boumediene that is a very puzzling situation for al-Aulaki. Because if you need court permission to detain somebody, and if you need court permission to wiretap somebody, how can you kill that person without court permission? 7. Rules during crises don’t hurt flexibility Thus, it also illustrates the truism, profoundly relevant to the war on terror, that limiting options available during emergencies can be good or bad, depending on what emergency responders, who may be tempted by sheer exhaustion to take hazardous shortcuts, will do with the latitudes they seize or receive. Campaigners for executive discretion routinely invoke the imperative need for "flexibility" to explain why counterterrorism cannot be successfully conducted within the Constitution and the rule of law. But general rules and situation-specific improvisation, far from being mutually exclusive, are perfectly compatible. 1 8 There is no reason why mechanically following protocols designed to prevent harried nurses from negligently administering the wrong blood type should preclude the same nurses from improvising unique solutions to the unique problems of a particular trauma patient. Drilled-in emergency protocols provide a psychologically stabilizing floor, shared by co- workers, on the basis of which untried solutions can then be improvised. 9 In other words, there is no reason to assert, at least not as a matter of general validity, that the importance of flexibility excludes reliance on rules during emergencies, including national-security emergencies. The emergency-room example can also deepen our understanding of national-security crises by bringing into focus an important but sometimes neglected distinction between threats that are novel and threats that are urgent. Dangers may be unprecedented without demanding a split-second response. Contrariwise, urgent threats that have appeared repeatedly in the past can be managed according to protocols that have become automatic and routine. Emergency-room emergencies are urgent even when they are perfectly familiar. Terrorists with access to weapons of mass destruction ("WMD"), by contrast, present a novel threat that is destined to endure for decades, if not longer. Such a threat is not an "emergency" in the sense of a sudden event, such as a house on fire, requiring genuinely split-second decision making, with no opportunity for serious consultation or debate. Managing the risks of nuclear terrorism requires sustained policies, not short-term measures. This is feasible precisely because, in such an enduring crisis, national-security personnel have ample time to think and rethink, to plan ahead and revise their plans. In depicting today's terrorist threat as "an emergency," executive-discretion advocates almost always blur together urgency and novelty. This is a consequential intellectual fallacy. But it also provides an opportunity for critics of executive discretion in times of crisis. If classical emergencies, in the house- on-fire or emergency-room sense, turn out to invite and require rule-governed responses, then the justification for dispensing with rules in the war on terror seems that much more tenuous and open to question. In crises where "time is of the essence" 2 1 and serious consultation is difficult or impossible, it is imperative for emergency responders to follow previously crafted first-order rules (or behavioral commands) to enable prompt remedial action and coordination. In crises that are not sudden and transient but, instead, endure over time and that therefore allow for extensive consultation with knowledgeable parties, it is essential to rely on previously crafted second-order rules (or decision-making procedures) designed to encourage decision makers to consider the costs and benefits of, and feasible alternatives to, proposed action plans. In medicine, a typical first-order rule is "always wash your hands before inserting a stent," and a typical second-order rule is "always get a second opinion before undertaking major surgery." 8. Turn – NEPA allows for flexibility and makes our military more effective 1NC North Korea The so-called Democratic People’s Republic of Korea is impoverished and decrepit. Its people are starving and risk death to flee their tragic land. The country is virtually friendless and suffers under a bizarre system of monarchical communism. Pyongyang’s armed forces are dwarfed by those of the U.S., the globe’s premier military power. Yet the DPRK has struck fear into the hearts of otherwise sober American policymakers and analysts. The administration announced plans to spend a billion dollars to add 14 interceptors to the missile defense in Alaska to guard against a North Korean attack. Deputy Defense Secretary Ashton Carter rushed to Seoul to consult the South’s government. The Washington Post’s David Ignatius worried: “Counting on North Korean restraint has been a bad bet. It may be wiser to assume the worst and plan accordingly.” The International Crisis Group observed that “North Korea has taken a number of recent steps that raise the risks of miscalculation, inadvertent escalation and deadly conflict on the Korean peninsula.” The Associated Press’s Foster Klug warned: “Recent Korean history reveals a sobering possibility. It may only be a matter of time before North Korea launches a sudden, deadly attack on the South. And, perhaps more unsettling, Seoul has vowed that this time, it will respond with an even stronger blow.” Worse, declared defense analyst Steven Metz: “Today, North Korea is the most dangerous country on earth and the greatest threat to U.S. security.” Indeed, the DPRK foreign ministry might be proved right when it “asserted that a second Korean War is inevitable.” The Heritage Foundation’s Bruce Klingner argued that the U.S. needed “strong military forces to protect” itself from the North and denounced planned military budget cuts as undermining “U.S. military capabilities and credibility.” The ICG urged “U.S. officials, including the president,” to reaffirm “that the U.S. will fulfill its alliance commitments, including robustly against any North Korean military attacks.” In Metz’s view this would be no minor affair. Rather, “The second Korean war would force military mobilization in the United States. This would initially involve the military’s existing reserve component, but it would probably ultimately require a major expansion of the U.S. military and hence a draft. The military’s training infrastructure and the defense industrial base would have to grow.” It’s a frightening picture, and it seems almost as wildly overblown as the DPRK’s rhetoric. After all, though the North’s wild gesticulations are unsettling, this is the seventh time Pyongyang has renounced the 1953 ceasefire reached. War has yet to erupt. While one cannot take anything for granted, there’s no evidence that Kim Jong-un and those around him have turned suicidal after the death of his father. The DPRK’s behavior almost certainly reflects other considerations. Almost alone is Sheila Miyoshi Jager of Oberlin College, who argued that the North’s “apocalyptic threats” are primarily intended for a domestic audience. She added: “it would be a mistake to read into them anything more than the noises of a dying regime that clearly recognizes the writing on the wall.” During a Senate hearing yesterday on President Barack Obama’s $9.5 billion military construction budget request for fiscal year 2014, Defense Department Comptroller Robert F. Hale said the severe and abrupt budget cuts imposed by sequestration are devastating the U.S. armed forces. Hale and John Conger, acting deputy undersecretary of defense for installations and environment, testified on military construction and family housing before the Senate Appropriations subcommittee on military construction, veterans affairs and related agencies. The officials described for the panel the impact of sequestration on military construction, facilities sustainment and restoration, and on the services in the current year. “While sequestration and related problems do not affect most military construction projects, they are devastating military readiness,” Hale told the senators, adding, “I just can't believe what we're doing to the military right now.” Their author concludes aff We are in only the eighth year of the post Cold War era. The United States remains as free of military threats to its existence as it has since 1940. We have mobilized a major military force to contain Iraqi dominance in the Middle East. We have used smaller forces in Panama, Haiti, Bosnia, and Somalia for a mixed set of goals, none of which involve the core security of the American nation. Although this military activity is comparable to or exceeds other Cold War periods, America's military posture is different. Two aspects of this change deserve attention. First, the military has lost its national security trump card. The American people and their elected leaders could abide a variety of excesses - budgetary, civil liberties, environmental - to defeat Hitler, the Japanese Empire, and Soviet communism. It would have been implausible to curb General Patton's tanks because of excessive air pollution or to stop General MacArthur's landing at Inchon because of threats to endangered species. Winning the war was foremost. The purpose of the military is to kill people and break things in the national interest. Because the threats today are not comparable, the military begins to look like one more agency contending for resources and privilege. Even use of force decisions are less certain. The missions to Bosnia or Somalia may not be worth American casualties. They may also not be worth an armed force that harasses its female soldiers, excludes gays and lesbians, or refuses to handle its environmental messes. Some generals and admirals have become genuine environmentalists. Others may just be good politicians. Whatever the reason - and even though old habits die hard - the military is recognizing the need to change with society. Second, the military is being forced to recognize that it is increasingly less "of" the American people. The fault is not the military's. Even before the end of three decades of conscription from 1940 to 1973, large segments of America's upper classes had turned away from military service. The percentage of congressional members with any military service declined over the last four Congresses from 50 to 42 to 38 to 33. n103 Bob Dole could be our last veteran Presidential candidate. Gingrich, Gramm, Clinton, Lott, and Buchanan never served. Neither did Defense Secretary Cohen. Dan Quayle, much maligned in 1988 for his National Guard service, looks like Rambo by comparison. *327 The gap in military service extends to other professions. Law teaching provides an example. The AALS Director of Law Teachers in recent years has ceased listing military service as one of the basic biographical elements. Relevant legal experience in the military, however, is still recorded. Of the several hundred professors of environmental law, only a handful showed professional experience with military environmental matters, none while a member of the uniformed services. Professor Dycus's book is a considerable help in bridging the military-environmental gap in the classroom. Nevertheless, it would be useful if a few more professors or environmental scholars understood a military command structure, or the demands of a military training exercise, or the pressures of a real world national security mission. The military of the next decade faces serious responsibilities in this changed world. Korea, the Middle East, and the former Yugoslavia offer the prospect of traditional war. These areas and others also promise work for peacekeepers and nationbuilders. Terrorism and drugs may find the military assisting or supplanting civilian law enforcement at home or abroad. Riot or natural disaster at home may call for the same military support. The military must perform these missions with a sensitivity to other public policy demands - racial and gender equality, community support, and environmental protection. The near certainty is that all of these diverse missions must be done with a smaller and cheaper military than available during the Cold War. Fortunately, the military can call on traditional strengths § Marked 11:47 § to carry out these missions. The people who run the military are experienced and capable planners. They also have a great capacity for training their people - many not the "best and the brightest" - to carry out the mission. These capabilities begin with the civilian leadership. The military can follow orders as well as any part of American society when the orders are given clearly by their civilian superiors. And the compliance with orders extends well beyond narrow, mission-specific direction. The military of the last three decades has confronted such deep cultural issues as racial and sexual equality, physical conditioning, and drug and alcohol use. Results have not been perfect, but few other institutions in our society could claim a better record. | 11/4/13 |
GSU Round 1Tournament: GSU | Round: 1 | Opponent: Houston BL | Judge: Gordon The United States also is able to usually avoid costs by contracting out of liability Although the concern for host nation sovereignty is crucial, the joint military activities of Deep engagement and strong alliances solve nuclear war 1AC – Citizen Suits Furthermore, it is the Court's responsibility to ensure that the Executive is abiding by Finally, the Winter Court's willingness to defer to the Navy's judgment and to allow As with all other issues of law that are unsettled, Supreme Court review of Undertaking a criminal investigation in a large environmental disaster (or any disaster that may The increased concerns over pipeline safety are occurring alongside the boom in shale gas, Expanded supply, coupled with low natural gas prices, has the potential to contribute Increased Potential for Global Conflict Of course, the report encompasses more than economics and Pipeline and production safety is key to methane hydrate development 1AC – Basic | 9/21/13 |
GSU Round 3 CitesTournament: GSU | Round: 3 | Opponent: Georgetown EM | Judge: Hall T – Hostilities – 2AC The House Foreign Affairs Committee (hereinafter H.F.A.C) has adopted its own de?nition of hostilities. The H.F.A.C. Report discusses the background, constitutional context, and intent of the WPR. The section-by-section analysis of the H.F.A.C. Report is the clearest statement of the definition of hostilities to be found: The word hostilities was substituted for the phrase armed con?ict during the subcommittee drafting process because it was considered to be somewhat broader in scope. In addition to a situation in which ?ghting actually has begun, hostilities also encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict. Imminent hostilities denotes a situation in which there is a clear potential either for such a state of confrontation or for actual armed conflict. Hearings were held during the Ford Administration in which Chair- man Zablocki used the definition as a benchmark in questioning legal advisors to the President)” The use of this de?nition by Zablocki supports a broad interpretation of hostilities because as long as a clear and present danger of armed con?ict exists, even though no shots have been ?red, hostilities are present.United States forces are not required to accompany foreign forces in combat or on operational patrols. The President, however, has persisted in defining hostilities more narrowly than Congress apparently intended. The Ford and Reagan Administrations have both adopted a narrow de?nition of hostilities that con?icts with the H.F.A.C. de?nition. The determination that “hostilities” is an ambiguous term and therefore, susceptible to different meanings, is supported by selected provisions from congressional hearings. In general, opposition to de?ning hostilities precisely or too narrowly was evidenced throughout congressional hearing records. The idea of making a “laundry list” or spelling out the circumstances in which the President may involve the military in the absence of a declaration of war was rejected.'°’ Rather than attempting to codify the circumstances that define hostilities, Professor Bickel, a noted constitutional law expert and Professor of Law at Yale University, stated that the preferable mode was a good faith understanding of the term and an assumption that Presidents would act in good faith to discharge their duties.“ Senator Javits, one of the chief sponsors of the WPR, acknowledged that the resolu- tion did not endeavor to spell out a definition of hostilities, but adopted the term as a word of basic understanding)" Members of Congress recognized the peril in trying to be too exact with defini- tions because of the difficulties in achieving a terminology that could anticipate all the emergencies which might arise. By choosing a general approach, rather than trying to be too exact in de?nitions, something was “left to judgment, the intelligence, and the wisdom” of members of Congress and the President.'" Based on the hearings, some evidence also exists that hostilities was deliberately left undefined and ambiguous so that the meaning of the word could be clari?ed or gradually spelled out by experience. T – Restriction =Prohibit– 2AC
While the studies were in progress, the United States Supreme Court found the impact of television cameras and lights in a courtroom setting prejudicial to the conduct of a fair trial. ( Estes v. Texas (1965) 381 U.S. 532 14 L.Ed.2d 543, 85 S.Ct. 1628.) Shortly thereafter, in Sheppard v. Maxwell (1966) 384 U.S. 333, 358 16 L.Ed.2d 600, 618, 86 S.Ct. 1507, the defendant's conviction of his wife's murder 879 was reversed because of "the carnival atmosphere at trial" and pervasive publicity affecting the fairness of the hearing. In reversing Dr. Sheppard's conviction, the court stated *15 that: (1) the publicity surrounding a trial may become so extensive and prejudicial in nature that unless neutralized by appropriate judicial procedures, a resultant conviction may not stand; (2) the trial court has the duty of so insulating the trial from publicity as to insure its fairness; (3) a free press plays a vital role in the effective and fair administration of justice. But the court did not set down any fixed rules to guide trial courts, law enforcement officers or media as to what could or could not be printed. Instead, the majority suggested that judicial restrictions on speech might sometimes be appropriate in the following dicta: "The courts *823 must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures. *16 " (Ibid., p. 363 16 L.Ed.2d p. 620.) 3. Restrictions” means “regulations” B) Secrecy - Executive regulation allows the military to exempt itself from environmental laws– internal secrecy means they will be noncompliant – that’s Babcock E) Certainty – Legal decision key First, government actors have a need for legal clarity, particularly in national-security areas where the legal questions are novel and the stakes of guessing wrong particularly high. In the absence of more definitive court guidance, government lawyers and policymakers have spent a staggering number of hours trying to anticipate what courts might conclude is the valid scope of the government’s power to detain, or to use military trials, and similar questions. In many contexts, a significant element in what government actors need is simply legal clarity; knowledge of where the lines lie between the permitted and the forbidden can help government actors figure out how best to reach their legitimate goals. Surely there is something not fully functional about a system that requires a decade’s worth of guesswork, and all the resources involved, about exactly where the legal boundaries lie. 3. Congress will roll back the counterplan during a conflict – kills solvency In times of war, the conflict between national-security goals and environmental laws tends to come out in favor of national security, n54 and shortly after 9/11 the United States was at war. As it was, the U.S. military never particularly liked the pre-9/11 waiver system, finding the scope of waivers too narrow and the time limits incompatible with long-term activities. n55 Thus, sensing the time to strike, the military began lobbying for changes to environmental-waiver provisions in the aftermath of 9/11. n56 The military has since actively and successfully sought changes to the waiver system, giving them much broader authority to disregard environmental laws, especially for reasons of "military readiness." n57 First, the military convinced Congress to attach riders to the 2004 and 2005 Defense Appropriations Acts exempting them from provisions of the Marine Mammal Protection Act ("MMPA"), some provisions of the ESA, and the entire Migratory *784 Bird Treaty Act. n58 Not only did the military successfully change the application of various sections of statute, it also changed the waiver structure for the MMPA, giving the Secretary of Defense the authority to grant waivers in addition to the President. n59 Though not always successful, military lobbying efforts have removed many external checks on military activities that impact the environment, creating a dim future for the environment. n60 7. Court has unique symbolic effect --- key to foreign perception of the plan The Results of Inaction 8. Perm do the counterplan then the plan – shields the link to the net benefit because it looks like the court enforcing the XO Environmental self-regulation solely by the executive branch is not a serious proposal. n331 The military should not be the sole regulator of its own environmental stewardship. The role of the military is "to fight and win the nation's wars." n332 An important part of this role is preparation and realistic training; the DOD consistently reiterates the concept that ""we need to train as we fight, but the reality is we fight as we train.'" n333 It is naive to think that military leaders and soldiers, no matter how much training in considering environmental damages that may result from their action, will place a top level priority on environmental concerns when the job of the military is to prepare for, fight, and win wars. The military also has a poor track record of environmental stewardship. Military readiness and preparation to protect the country's national security during the Cold War "left a legacy of hazardous waste, nuclear contamination, polluted air, water and soil, *1333 and resulted in the destruction of natural and cultural resources." n334 With the advent of new technology and highly advanced methods of warfare, the potential environmental dangers have become even more devastating. The military manages "unexploded and surplus ordnance, millions of gallons of liquid waste that is both extremely corrosive and highly radioactive, chemical weapons, excess nuclear warheads and weapons-grade plutonium, and defoliant production residues ... ." ,FN='335' Given the enormous responsibilities that come with the handling of these substances, coupled with a poor history of proper environmental consideration, the military needs external regulation in order to ensure that decisions that represent all of society's values are being made. Another problem with regulation of defense activities by the executive branch alone is the unitary executive policy of the Department of Justice. n336 This policy prevents the EPA "from issuing administrative compliance orders or filing suit against other federal agencies for violations" n337 "without the President's approval, if at all." n338 Under most environmental statutes, the EPA cannot levy a penalty against other agencies. n339 The principles behind the unitary executive theory have merit, "implicating very real executive branch management and separation of powers issues." n340 Regardless, the unitary executive approach eliminates another method of regulation that helps ensure environmental compliance of private entities. The military has made major improvements to its environmental policy over the past fifteen years. The DOD has created an environmental program that centers on the "four pillars" of *1334 restoration, compliance, pollution prevention, and conservation. n341 Environmental planning is a component to each of these four pillars and is included in DOD manuals for proposed actions. n342 Military commanders and soldiers operate under new statements of mission that include "stewardship of the land, air, water and natural ... resources." n343 The incorporation of environmental responsibility in the mission and culture of the military is an important step that should be encouraged in the future. It is not, however, a large enough step to validate internal regulation of environmental stewardship. Oil Spills Add- On – 2AC Systemic risk is as important as individual risk. Notwithstanding the National Environmental Policy Act's requirement that federal permitting agencies consider cumulative impacts to the environment, n188 we currently evaluate the risks of offshore oil drilling primarily with respect to individual oil drilling operations in connection with individual permits and leases. As the Deepwater Horizon Commission recognized, however, the larger systemic context of such drilling is also important, and perhaps arguably more so. From a resilience perspective, a drilling operation that uses the only oil rig in a pristine marine environment is an inherently different risk problem than the Deepwater Horizon's situation of being one of thousands of similar rigs in a pervasively and multiply stressed Gulf. As Clark, Jones, and Holling have suggested, our trial-and-error experiments with Nature in our first-sense resilience *1895 dependence mode "now threaten errors larger and more costly than society can afford." n189 Resilience thinking should more forcibly insist on multilayered systemic awareness, promoting limits on how much exploitation should be occurring simultaneously and encouraging more gradual resource development over longer periods of time. . Risk to the environment should be presumed, even when all actors follow all best practices. Our current first-sense resilience dependency produces laws that assume that ecosystems can be fixed—and, perhaps more importantly, as embodied in the OPA natural resource damages regulations, that natural processes will often be able to restore themselves without human effort. Resilience thinking, in contrast, effectively assumes that ecosystems could suddenly shift to a new regime at any time for any number of reasons that we do not understand and may not even be able to anticipate—the combined potential of the second and third conceptions of resilience. In the words of Clark, Jones, and Holling, "if a system has multiple regions of stability, then Nature can seem to play the practical joker rather than the forgiving benefactor." n190 To exaggerate the differences in outlook just a bit, our current paradigm presumes that most ecosystems can cope with most human activities, while resilience thinking presumes that all changes to an ecosystem are at least potentially completely destabilizing—i.e., inherently risky, with the outer limits of that risk being potentially massive. To translate this change in presumption into legalese, full resilience thinking promotes a policy framework where most human activities in the environment could be—and perhaps should be—considered inherently dangerous activities. *1896 As every first-year law student learns, engaging in inherently dangerous activities tends to subject the actor to strict and fairly absolute liability for the kinds of harm that made the activity inherently dangerous. n191 Under resilience thinking, those kinds of harm would include all of the unpredictable and unexpected changes to the ecosystem that might occur as a result of a disaster like the Deepwater Horizon oil spill, up to and including a substantial shift in ecosystem regime or ecosystem collapse. While full implementation of an "inherently dangerous activity" legal regime for all marine activities is unlikely, the case is fairly strong for deep sea oil exploration and drilling. It is at least worth pondering what such a consequence of resilience thinking might mean for risk assessment and behavioral incentives in this context. If nothing else, one would predict under such a new view of potential liability that oil companies' insurers might begin charging premiums that more accurately reflect the potentially catastrophic liability that resilience-minded regulations and policies would make legally cognizant—and might insist on the much more precautionary and safety-minded approach to offshore oil drilling that a multitude of commentators and the Deepwater Horizon Commission have sought in the wake of the Deepwater Horizon disaster. V. Conclusion The second and third senses of resilience, and the socio-ecological risks for humans that they underscore, should not be foreign concepts in the regulation of the marine environment, including (and perhaps especially) when it comes to regulating the offshore oil and gas exploration and drilling taking place at ever-increasing depths. Nor should the possibility that the cumulative stresses to the Gulf of Mexico have pushed its ecosystems to the brink of ecosystem thresholds be ignored in our regulatory regimes. By acknowledging that ecosystems are dynamic and subject to sudden and fairly catastrophic (at least from a human perspective) changes, full resilience thinking provides a path away from the trap of first-sense resilience dependence. Specifically, full resilience thinking recognizes that exploitative activities that affect the Gulf—not just deep sea oil drilling but also fishing and farming up the Mississippi River—put all of the human beings who depend on the ecosystem services, as well as the ecosystems themselves, at collective risk of catastrophic ecosystem collapse. A liability regime based on these unavoidable and potentially massive environmental risks would likely protect the Gulf of Mexico better than our current regime of natural resource damages, especially when injury occurs in the Gulf's murky depths. Generic Legalism K – 2AC
3. Extinction outweighs The same argument can be made for Kant’s other formulations of the Categorical Imperative: “So act as to use humanity, both in your own person and in the person of every other, always at the same time as an end, never simply as a means”; and “So act as if you were always through your actions a law-making member in a universal Kingdom of Ends.” No one with a concern for humanity could consistently will to risk eliminating humanity in the person of himself and every other or to risk the death of all members in a universal Kingdom of Ends for the sake of justice. To risk their collective death for the sake of following one’s conscience would be, as Rawls said, “irrational, crazy.” And to say that one did not intend such a catastrophe, but that one merely failed to stop other persons from bringing it about would be beside the point when the end of the world was at stake. For although it is true that we cannot be held responsible for most of the wrongs that others commit, the Latin maxim presents a case where we would have to take such responsibility seriously – perhaps to the point of deceiving, bribing, even killing an innocent person, in order that the world not perish. To avoid self-contradiction, the Categorical Imperative would, therefore, have to rule against the Latin maxim on account of its cavalier attitude toward the survival of mankind. But the ruling would then produce a rift in the application of the Categorical Imperative. Most often the Imperative would ask us to disregard all unintended but foreseeable consequences, such as the death of innocent persons, whenever concern for such consequences conflicts with concern for acting according to duty. But, in the extreme case, we might have to go against even the strictest moral duty precisely because of the consequences. Acknowledging such a rift would post a strong challenge to the unity and simplicity of Kant’s moral theory. Insisting on a sharp distinction between the law governing presidential authority that is subject to judicial review and the law that is not also takes for granted a phenomenon that merits attention - that Presidents follow judicial decisions. n118 That assumption is generally accurate in the United States today. To take one relatively recent example, despite disagreeing with the Supreme Court's determination in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions applies to the war on terror, the Bush Administration quickly accepted it. n119 But the reason why Presidents abide by court decisions has a connection to the broader issue *1131 of the constraining effect of law. An executive obligation to comply with judicial decisions is itself part of the practice-based constitutional law of the United States, so presidential compliance with this obligation may demonstrate that such law can in fact constrain the President. This is true, as we explain further in Part III, even if the effect on presidential behavior is motivated by concerns about external political perceptions rather than an internal sense of fidelity to law (or judicial review). n120 8. No impact In an important programmatic statement of 1996 Geoff Eley celebrated the fact that Foucault’s ideas have “fundamentally directed attention away from institutionally centered conceptions of government and the state . . . and toward a dispersed and decentered notion of power and its ‘microphysics.’”48 The “broader, deeper, and less visible ideological consensus” on “technocratic reason and the ethical unboundedness of science” was the focus of his interest.49 But the “power-producing effects in Foucault’s ‘microphysical’ sense” (Eley) of the construction of social bureaucracies and social knowledge, of “an entire institutional apparatus and system of practice” ( Jean Quataert), simply do not explain Nazi policy.50 The destructive dynamic of Nazism was a product not so much of a particular modern set of ideas as of a particular modern political structure, one that could realize the disastrous potential of those ideas. What was critical was not the expansion of the instruments and disciplines of biopolitics, which occurred everywhere in Europe. Instead, it was the principles that guided how those instruments and disciplines were organized and used, and the external constraints on them. In National Socialism, biopolitics was shaped by a totalitarian conception of social management focused on the power and ubiquity of the völkisch state. In democratic societies, biopolitics has historically been constrained by a rights-based strategy of social management. This is a point to which I will return shortly. For now, the point is that what was decisive was actually politics at the level of the state. A comparative framework can help us to clarify this point. Other states passed compulsory sterilization laws in the 1930s — indeed, individual states in the United States had already begun doing so in 1907. Yet they did not proceed to the next steps adopted by National Socialism — mass sterilization, mass “eugenic” abortion and murder of the “defective.” Individual figures in, for example, the U.S. did make such suggestions. But neither the political structures of democratic states nor their legal and political principles permitted such policies actually being enacted. Nor did the scale of forcible sterilization in other countries match that of the Nazi program. I do not mean to suggest that such programs were not horrible; but in a democratic political context they did not develop the dynamic of constant radicalization and escalation that characterized Nazi policies. The thrust of CLS critique is devoted, in turn, to the exposure of the contradictions in liberal philosophy and law. This strand of the Critical legal critique is quite powerful and makes a much-needed contribution. In my view, however, it suffers from two general problems. First, the critique lends itself to exaggeration. This observation may be appreciated by considering what happens when Critical legal theorists themselves make tentative gestures at the social direction in which we should move. Such gestures, even from the most vigorous critics of liberalism, do not escape from liberalism and, indeed, liberal rights theory. Nevertheless, those gestures have great merit, particularly because of their use of liberal rights. For example, Frug, while expounding his vision of the city as a site of localized power and participatory democracy, attacks liberal theory and its dualities as an obstacle to his vision. n19 At the same time, without *518 acknowledging the significance of what he is doing, Frug relies on the liberal image of law and rights to defend the potential of his vision. He writes: It should be emphasized that participatory democracy on the local level need not mean the tyranny of the majority over the minority. Cities are units within states, not the state itself; cities, like all individuals and entities within the state, could be subject to state-created legal restraints that protect individual rights. Nor does participatory democracy necessitate the frustration of national political objectives by local protectionism; participatory institutions, like others in society, could still remain subject to general regulation to achieve national goals. The liberal image of law as mediating between the need to protect the individual from communal coercion and the need to achieve communal goals could thus be retained even in the model of participatory democracy. n20 10. Alt Can’t solve --Appeals for institutional restrain are a crucial supplement to political resistance to executive power. As I have shown above, while political forces played a significant role in checking President Bush, what was significant was the particular substantive content of that politics; it was not just any political pressure, but pressure to maintain fidelity to the rule of law. Politics standing alone is as likely to fuel as to deter executive abuse; consider the lynch mob, the Nazi Party in Germany, or xenophobia more generally. What we need if we are to check abuses of executive power is a politics that champions the rule of law. Unlike the politics Posner and Vermeule imagine, this type of politics cannot be segregated neatly from the law. On the contrary, it will often coalesce around a distinctly legal challenge, objecting to departures from distinctly legal norms, heard in a court case, as we saw with Guantanamo. Congress’s actions make clear that had Guantanamo been left to the political process, there would have been few if any advances. The litigation generated and concentrated political pressure on claims for a restoration of the values of legality, and, as discussed above, that pressure then played a critical role in the litigation’s outcome, which in turn affected the political pressure for reform. There is, to be sure, something paradoxical about this assessment. The rule of law, the separation of powers, and human rights are designed to discipline and constrain politics, out of a concern that pure majoritarian politics, focused on the short term, is likely to discount the long-term values of these principles. Yet without a critical mass of political support for these legal principles, they are unlikely to be effective checks on abuse, for many of the reasons Posner andVermeule identify. The answer, however, is not to abandon the rule of law for politics, but to develop and nurture a political culture that values the rule of law itself. Civil society organizations devoted to such values, such as Human Rights Watch, the Center for Constitutional Rights, and the American Civil Liberties Union, play a central role in facilitating, informing, and generating that politics. Indeed, they have no alternative. Unlike governmental institutions, civil society groups have no formal authority to impose the limits of law themselves. Their recourse to the law’s limits is necessarily indirect: they can file lawsuits seeking judicial enforcement, lobby Congress for statutory reform or other legislative responses, or seek to influence the executive branch. But they necessarily and simultaneously pursue these goals through political avenues – by appealing to the public for support, educating the public, exposing abuses, and engaging in public advocacy around rule-of-law values. Unlike ordinary politics, which tends to focus on the preferences of the moment, the politics of the rule of law is committed to a set of long-term principles. Civil society organizations are uniquely situated to bring these long-term interests to bear on the public debate. Much like a constitution itself, civil society groups are institutionally designed to emphasize and reinforce our long-term interests. When the ordinary political process is consumed by the heat of a crisis, organizations like the ACLU, Human Rights First, and the Center for Constitutional Rights, designed to protect the rule of law, are therefore especially important. While Congress and the courts were at best compromised and at worst complicit in the abuses of the post-9/11 period, civil society performed admirably. The Center for Constitutional Rights brought the first lawsuit seeking habeas review at Guantanamo, and went on to coordinate a nationwide network of volunteer attorneys who represented Guantanamo habeas petitioners. The ACLU filed important lawsuits challenging secrecy and government excesses, and succeeded in disclosing many details about the government’s illegal interrogation program. Both the ACLU and CCR filed lawsuits and engaged in public advocacy on behalf of torture and rendition victims, and challenging warrantless wiretapping. Human Rights Watch and Human Rights First wrote important reports on detention, torture, and Guantanamo, and Human Rights First organized former military generals and admirals to speak out in defense of humanitarian law and human rights. These efforts are but a small subset of the broader activities of civil society, at home and abroad, that helped to bring to public attention the Bush administration’s most questionable initiatives, and to portray the initiatives as contrary to the rule of law. At their best, civil society organizations help forge a politics of the rule of law, in which there is a symbiotic relationship between politics and law: the appeal to law informs a particular politics, and that politics reinforces the law’s appeal, in a mutually reinforcing relation. Posner and Vermeule understand the importance of politics as a checking force in the modern world, but fail to see the critical qualification that the politics must be organized around a commitment to fundamental principles of liberty, equality, due process, and the separation of powers – in short, the rule of law. Margulies and Metcalf recognize that politics as much as law determines the reality of rights protections, but fail to identify the unique role that civil society organizations play in that process. It is not that the “rule of politics” has replaced the “rule of law,” but that, properly understood, a politics of law is a critical supplement to the rule of law. We cannot survive as a constitutional democracy true to our principles without both. And our survival turns, not only on a vibrant constitution, but on a vibrant civil society dedicated to reinforcing and defending constitutional values. Schuette Thumper – 2AC In the more than three decades since the Supreme Court’s ruling in Regents of the University of California v. Bakke affirmed the constitutionality of affirmative action in public colleges and universities, many institutions of higher education have implemented race-conscious admissions programs in order to achieve a racially and ethnically diverse student body or faculty. Nevertheless, the pursuit of diversity in higher education remains controversial, and legal challenges to such admissions programs routinely continue to occur. Currently, the Court is poised to consider a novel question involving affirmative action in higher education during its upcoming 2013-2014 term. Unlike earlier rulings, in which the Court considered whether it is constitutional for a state to use racial preferences in higher education, the new case, Schuette v. Coalition to Defend Affirmative Action, raises the question of whether it is constitutional for a state to ban such preferences in higher education. Schuette arose in the wake of a pair of cases involving admissions to the University of Michigan’s law school and undergraduate programs. Although the Court struck down the undergraduate admissions program, it upheld the law school’s program in a decision that affirmed the constitutionality of the limited use of race-conscious admissions programs in public higher education. In the wake of the University of Michigan cases, opponents of affirmative action in Michigan successfully lobbied for the passage of Proposal 2, which amended the Michigan state constitution to prohibit preferential treatment on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, or public contracting. Opponents of Proposal 2 sued, and a federal appeals court ruled that Proposal 2’s ban on racial preferences in public education violates the equal protection clause of the United States Constitution. This decision was subsequently upheld in a divided ruling by the full court of appeals, sitting en banc, and the Supreme Court will review the case during the upcoming term. A2: McCutcheon vs. FEC – U 2AC Toobin paints a dreary picture of the prospects for the case, encapsulated in a quote from the lower court that upheld the contribution limits but raised the “possibility that Citizens United undermined the entire contribution limits scheme.” But he is wrong that Citizens United itself “said nothing about direct contributions to the candidates themselves.” In fact, Kennedy’s opinion reiterates the legitimate need for contribution limits to fight the reality and appearance of corruption. He wrote: With regard to large direct contributions, Buckley reasoned that they could be given “to secure a political quid pro quo ,” and that “the scope of such pernicious practices can never be reliably ascertained,” The practices Buckley noted would be covered by bribery laws if a quid pro quo arrangement were proved. The Court, in consequence, has noted that restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. (citations omitted). He also wrote that “the Buckley Court explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures.” The aggregate limits are necessary to fight the growing perception that our representative government is corrupted by huge sums of money flowing from a few individuals directly to candidates who are supposed to represent all of us. They are a valid means of preventing circumvention of the base limits. And they are an important tool to guide against improper solicitation of huge hard money sums from individuals directly to candidates and parties, a toxic adaptation of the huge “soft money” contributions banned by McCain-Feingold. As the amicus brief that Demos and membership groups representing 9.5 million submitted demonstrates, Americans believe their government has been corrupted by money in politics. They believe that their elected representatives respond to the interests of their financial supporters rather than to the needs of their constituents or even the larger common good. And they are right to think that, as new research has shown, that government is in fact responsive to the policy preferences of the donor class rather than to average Americans. The McCutcheon case also surfaces the question of who gets to make the decisions about which appropriate tools are necessary for a democratic government to protect itself from capture by private economic powers. Linda Greenhouse argued this week that because the current Justices of the Supreme Court are all, save Kagan, former appellate judges, they can be unusually out of touch with the complexities of the real world, a greater sense of which allows for informed judging to take place. While she wrote in the context of blindness to issues in the workplace, the blinkers are on just as tightly when this Court has examined campaign finance laws. Here’s hoping the Court, and specifically Justice Kennedy, sees the great harm to citizen’s trust and confidence in government being done by the increasing dominance of a small wealthy elite over our politics and policy and upholds the aggregate contribution limits at stake in McCutcheon. Court Politics DA – 2AC
Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court’s crucial voice in environmental and natural resources law cases. Kennedy’s central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S., since he supplied the critical vote in both: upholding local use of the condemnation power for economic development under certain circumstances, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters. In each case Kennedy’s sole concurrence was outcome determinative. Justice Kennedy has in fact been the needle of the Supreme Court’s environmental and natural resources law compass since his nomination to the Court in 1988. Although Kennedy wrote surprisingly few environmental and natural resources law opinions during his tenure on the Rehnquist Court, over his first eighteen years on the Court, he was in the majority an astonishing 96 percent of the time in environmental and natural resources law cases—as compared to his generic record of being in the majority slightly over 60 percent of the time. And Kennedy now appears quite prepared to assume a considerably more prominent role on the Roberts Court in the environmental and natural resources law field. This article examines Kennedy’s environmental and natural resources law record over his first eighteen years on the Supreme Court and also on of the Ninth Circuit in the thirteen years before that. The article evaluates all of the environmental law and natural resources law cases in which he wrote an opinion over those three decades, and it catalogues his voting record in all of the cases in which he participated on the Supreme Court in an appendix. One striking measure of Justice Kennedy’s influence is that, after eighteen years on the Court, he has written just one environmental dissent—and that on states’ rights grounds, which is one of his chief priorities. The article maintains that Kennedy is considerably more interested in allowing trial judges to resolve cases on the basis of context than he is in establishing broadly applicable doctrine: Kennedy is a doctrinal minimalist. By consistently demanding a demonstrated “nexus” between doctrine and facts, he has shown that he will not tolerate elevating abstract philosophy over concrete justice. For example, he is interested in granting standing to property owners alleging regulatory takings, but he is quite skeptical about the substance of their claims. Another example of his nuanced approach concerns his devotion to states’ rights—which is unassailable—yet he has been quite willing to find federal preemption when it serves deregulation purposes. On the other hand, as his opinion in Rapanos reflects, Kennedy is far from an anti-regulatory zealot. But he does seem to prefer only one level of governmental regulation. At what might be close to the mid-point in his Court career—and with his power perhaps at its zenith—Justice Kennedy is clearly not someone any litigant can ignore. By examining every judicial opinion he has written in the environmental and natural resources law field, this article hopes to give both those litigants and academics a fertile resource to till. Although Kennedy has been purposefully difficult to interpret in this field (writing very few opinions until lately), his record suggests that he may be receptive to environmental and natural resources claims if they are factually well-grounded and do not conflict with Kennedy’s overriding notions of states’ rights. The article concludes with some comparisons between Justice Kennedy and Justice Holmes. So, did Roberts and Alito lie during their confirmation hearings? n4 Did they duplicitously proclaim dedication to the rule of law while secretly planning to implement their political agendas? While I disagree with the justices' votes in practically every controversial case, Roberts and Alito most likely answered senators' questions sincerely, and the justices have probably applied the rule of law in good faith during their initial terms. But, one might ask, how is this possible when they repeatedly vote for the conservative judicial outcome? Most simply, law and politics are not opposites. Roberts, Alito, and the other justices do not necessarily disregard the law merely because they vote to decide cases consistent with their respective political ideologies. As a general matter, Supreme Court justices can decide legal disputes in accordance with law while simultaneously following their political preferences. *18 I elaborate this thesis by critiquing the theories of Judge Richard Posner n5 and Professor Ronald Dworkin, n6 two of the most prominent jurisprudents of this era. Embattled opponents, Posner and Dworkin have, for years, relentlessly attacked each other while developing strikingly different depictions of law and adjudication. n7 Despite their opposition, however, Posner and Dworkin together challenge a primary assumption of traditional jurisprudence - an assumption featured during Roberts's and Alito's Senate confirmation hearings. Most senators, jurists, and legal scholars assume that legal interpretation and judicial decision making can be separated from politics, that a judge or justice who decides according to political ideology skews or corrupts the judicial process. n8 Posner and Dworkin reject this traditional approach, particularly for hard cases at the level of the Supreme Court. Each in his own way asserts and explains the power of politics in adjudication: the justices self-consciously vote and thus decide cases according to their political ideologies. Posner and Dworkin agree that the justices do not, and should not, decide hard cases by applying an ostensibly clear rule of law in a mechanical fashion. The justices must be political in an open and expansive manner. n9 Supreme Court adjudication is, in other words, politics writ large. The conflicts between Posner and Dworkin stem from their distinct views of politics. Posner views politics as a pluralist battle among self-interested individuals and groups. He therefore argues that Supreme Court adjudication, manifesting politics writ large, should (and in fact does) entail a pragmatic focus on consequences. The justices should resolve cases by looking to the future and by aiming to do what is best in both the short and long term. n10 Dworkin, repudiating a pragmatic politics of self-interest, favors instead a politics of principles. Thus, according to Dworkin, the justices should resolve hard cases by applying law as integrity. They should theorize about the political-moral principles that fit the doctrinal history - including *19 case precedents and constitutional provisions - and that cast the history in its best moral light. n11 Consequently, although Posner and Dworkin both describe the Supreme Court as a political institution - as engaging in politics writ large - their theories otherwise clash tumultuously. Posner sees an adjudicative politics of interest and unmitigated practicality, while Dworkin sees an adjudicative politics of principles and coherent theory. Unfortunately, both Posner and Dworkin - like Roberts, Alito, and the senators who questioned them - remain stuck within the magnetic field of the traditional law-politics dichotomy. While most jurists, legal scholars, and senators are pulled to the law pole - maintaining that law mandates case results - Posner and Dworkin are pulled to the opposite pole. If politics matter to adjudication, they seem to say, then politics must become the overriding determinant of judicial outcomes. Supreme Court adjudication must be politics writ large. If their view is true, then Supreme Court nominees who declare their fidelity to the rule of law do, in fact, lie: current and future justices decide cases by hewing to their political ideologies, not to legal doctrines and precedents. But in their struggle against the forces of the law-politics dichotomy, Posner and Dworkin overcompensate. They neglect another possibility: namely, that Supreme Court adjudication is politics writ small. As Posner and Dworkin emphasize, the Court is a political institution: the justices' political ideologies always and inevitably influence their votes and decisions. But usually the justices do not self-consciously attempt to impose their politics in an expansive manner. To the contrary, the justices sincerely interpret and apply the law. Yet, because legal interpretation is never mechanical, the justices' political ideologies necessarily shape how they understand the relevant legal texts, whether in constitutional or other cases. 5. No spillover --- there’s no reason _ would be picked for make-up. The Court would choose another case that requires capital. 5. Capital is compartmentalized a. The fallacy of the concept of fungible institutional capital. The basis for Dean Choper's suggested judicial abstention on issues of federalism 143 is the desire "to ease the commendable and crucial task of judicial review in cases of individual consitutional liberties. It is in the latter that the Court's participation is both vitally required and highly provocative." 144 Judicial efforts in the federalism area, he asserts, "have expended large sums of institutional capital. This is prestige desperately needed elsewhere." 145 Dean Choper's fundamental assumption, then, is that Supreme Court abstention on issues of constitutional federalism would somehow increase, or at least curtail loss of, limited capital for the more vital area of individual liberty. However, even if one were to concede that judicial review is more fundamental to our constitutional scheme in the area of individual liberty than in matters of federalism, acceptance of Dean Choper's proposal would not necessarily follow. The problem is that it is neither intuitively nor empirically clear that the Court's so-called capital is transferable from one area of constitutional law to another. As one of the current authors has previously argued: It is difficult to imagine . . . that the widespread negative public reactions to Miranda v. Arizona, Engle v. Vitale, or Roe v. Wade would *37 have been affected at all by the Court's practices on issues of separation of powers and federalism. Rather, public reaction in each seems to have focused on the specific, highly charged issues of rights for criminals, prayer in public schools, and abortions. It is doubtful that the Court would have had an easier time if it had chosen to stay out of interbranch and intersystemic conflicts. 146 Interestingly, though, the Supreme Court has been immune from that cynicism. At a time when other government institutions are often held in disrepute, the Court's credibility is high. Professors John M. Scheb and Williams Lyons set out to measure and determine this. 2 They conducted a survey to answer the question: "How do the American people regard the U.S. Supreme Court?" 3 Their conclusion is important: According to the survey data, Americans render a relatively positive assessment of the U.S. Supreme Court. Not surprisingly, the Court fares considerably better in public opinion than does Congress. The respondents are almost twice as likely to rate the Court's performance as "good' or "excellent' *945 as they are to give these ratings to Congress. By the same token, they are more than twice as likely to rate Congress' performance as "poor.' 4 This survey was done in 1994, 5 before the recent events that likely further damaged Congress' public image. Strikingly, Scheb and Lyons found that the "Court is fairly well-regarded across the lines that usually divide Americans." 6 For example, there are no significant differences between how Democrats and Republicans rate the Court's performance. In short, the Court is a relatively highly regarded institution, more so certainly than Congress or the presidency. 7 This is not a new phenomena. Throughout this century, the Court has handed down controversial rulings. Yet the Court has retained its legitimacy and its rulings have not been disregarded. Judge John Gibbons remarked that the "historical record suggests that far from being the fragile popular institution that scholars like Professor Choper... and Alexander Bickel have perceived it to be, judicial review is in fact quite robust." 8 In fact, even at the times of the most intense criticism of the Supreme Court, the institution has retained its credibility. For example, opposition to the Court was probably at its height in the mid-1930s. In the midst of a depression, the Court was striking down statutes thought to be necessary for economic recovery. In an attempt to change the Court's ideology, President Franklin D. Roosevelt - fresh from a landslide reelection - proposed changing the size of the Court. This "Court packing" plan received little public support. The Senate Judiciary Committee, controlled by Democrats, rejected the proposal and strongly reaffirmed the need for an independent judiciary: Let us now set a salutary precedent that will never be violated. Let us, of the Seventy-fifth Congress,... declare that we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of the liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power, or *946 factional passion, approves any measure we may enact. 9 This is a telling quotation and a powerful example because if anything should have undermined the Court's legitimacy, it was an unpopular Court striking down popular laws enacted by a popular administration in a time of crisis. Public opinion surveys reflect that this Committee report reflected general support for the Supreme Court, despite the unpopularity of its rulings. In 1935 and 1936, most respondents, 53 and 59 respectively, did not favor limiting the power of the Supreme Court in declaring laws unconstitutional. 10 Indeed, the Court's high regard, described by Professors Scheb and Lyons, has been remarkably constant over time. 11 Professor Roger Handberg studied public attitudes about the Supreme Court over several decades and concluded that public support for the institution has not changed significantly and that the "Court has a basic core of support which seems to endure despite severe shocks." 12 Professor John Hart Ely noted this and observed: The possibility of judicial emasculation by way of popular reaction against constitutional review by the courts has not in fact materialized in more than a century and a half of American experience. The warnings probably reached their peak during the Warren years; they were not notably heeded; yet nothing resembling destruction materialized. In fact, the Court's power continued to grow and probably never has been greater than it has been over the past two decades. 13 Why has the Court maintained its legitimacy even when issuing highly controversial rulings? Social science theories of legitimacy offer some explanation. The renowned sociologist Max Weber wrote that there are three major bases for an institution's legitimacy: tradition, rationality and affective ties. 14 That which historically has existed tends to be accepted as legitimate. Therefore, 200 years of *947 judicial review grants the Court enormous credibility. Additionally, that which is rational is likely to be regarded as legitimate. The judiciary's method of giving detailed reasons for its conclusions thus helps to provide it credibility. Finally, that which is charismatic, things to which people have strong affective ties, are accorded legitimacy. It has long been demonstrated that people feel great loyalty to the Constitution. The Court's relationship to the document and its role in interpreting it likely also enhances its legitimacy. More specifically, I suggest that the Court's robust public image is a result of its processes and its producing largely acceptable decisions over a long period of time. The Court is rightly perceived as free from direct political pressure and lobbying, bound by the convention of reaching rational decisions that are justified in opinions, and capable of protecting people from arbitrary government. Social scientists have shown that an institution receives legitimacy from following established procedures. The Court's legitimacy, in part, is based on the perception and reality that it does not decide cases based on the personal interests of the Justices or based on external lobbying and pressures. In a recent book highly critical of the Court, Edward Lazarus lambastes the current Justices, yet he never even suggests a single instance of improper influence or conflict of interest. 15 The Court's credibility is a product of the correct perception that it decides cases based on a formalized procedure: it reads briefs, hears arguments, deliberates, and writes opinions. Indeed, the very process of opinion writing, regardless of their content, is crucial because it makes the Court's decisions seem a product of reason, not simply acts of will. Although the Court's high credibility is a result of this process, I believe that this is necessary for its institutional legitimacy, but not sufficient. The Court also has produced a large body of decisions, that over a long period of time, have generally been accepted by the public. If the Court were to produce a large number of intensely unpopular rulings over a long period of time, its credibility would suffer. In the short-term, its processes ensure its continued legitimacy; in the long-term, overall acceptability of its decisions is sufficient to preserve this credibility. Recognition of the Court's robust legitimacy is important in the on-going debate over judicial review. Many, including those as *948 prominent as Felix Frankfurter, Alexander Bickel, and Jesse Choper, have proclaimed a need for judicial restraint so as to preserve the Court's fragile institutional legitimacy. 16 They argue that the Court must depend on voluntary compliance with its rulings from the other branches of government and that this will not occur unless the Court preserves its fragile legitimacy. Justice Frankfurter dissented in Baker v. Carr, the Supreme Court's landmark decision holding that challenges to malapportionment were justiciable, arguing that the Court was putting its fragile legitimacy at risk. 17 Frankfurter urged restraint, stating: "The Court's authority - possessed of neither the purse nor the sword - ultimately rests on public confidence in its moral sanction." 18 Choper, for example, concludes from this premise that the Court should not rule on federalism or separation of powers issues so as to not squander its political capital in these areas that he sees as less important than individual rights cases. Bickel argued that the Court should practice the "passive virtues" and use justiciability doctrines to avoid highly controversial matters so as to preserve its political capital. 19 Other scholars reason from the same assumption. Daniel Conkle, for example, speaks of the "fragile legitimacy that attaches to Supreme Court pronouncements of constitutional law." 20 I am convinced that these scholars are wrong and that the public image of the Court is not easily tarnished, and preserving it need not be a preoccupation of the Court or constitutional theorists. There is no evidence to support their assertion of fragile public legitimacy and almost 200 years of judicial review refute it. The Court's legitimacy is often described in terms of its "political capital." n143 The term "political capital" is generally not defined. It is likely that it has many facets. One element of political capital might be the likelihood that people will follow the Court's decisions and treat them as binding law, especially in controversial cases. Yet if the question is merely whether the Court's decisions will be obeyed, it seems clear that its capital was hardly damaged at all. No one doubted for a second that Al Gore would obey the Court's order, or that the Florida Supreme Court would cease the recounts immediately. The Court's ability to command obedience remains largely unaffected by Bush v. Gore. There is little doubt that people will continue to follow the Supreme Court's decisions. Lawyers will continue to cite them, and lower courts and legal officials will continue to apply them as before. Thus, if legitimacy or political capital means only brute *1451 acceptance of the Court and its decisions as a going concern, the Court will not lose any legitimacy as a result of its decision in Bush v. Gore. If the Court's political capital is judged by whether politicians are well-or ill-disposed toward the Supreme Court, then the Supreme Court may well have increased its political capital in the short term by halting the recounts. n144 After all, there is now a Republican president, and Republicans control both houses of Congress. They are no doubt delighted with the Supreme Court's exercise of judicial review, for it guarantees them a period of one-party rule. As a result, they are probably much more favorably disposed to granting the Justices the pay raise that Chief Justice Rehnquist has been requesting for several years. n145 Judged in raw political terms, the Supreme Court made much more powerful friends than enemies when it decided Bush v. Gore. n146 Nevertheless, legitimacy might mean something more than the two senses of "political capital" that I have just described. When people speak of "legitimacy" - not in a rigorously philosophical sense but in an everyday sense of the word - they are often referring to basic questions of trust and confidence in public officials: Do people believe that public officials are honest and trustworthy, and do they have confidence that public officials will act in the public interest and not for purely partisan or selfish reasons? These forms of legitimacy are crucial to the courts because the courts rely so heavily on the appearance of fairness and reasonableness. To be sure, sometimes people speak of "moral legitimacy" - whether what government officials do is in fact just and fair - and "procedural legitimacy" - whether government officials have employed fair procedures. But often people do not know what government officials are doing - for example, most people do not read judicial opinions - and even then what is actually just and fair is often difficult to determine. So in practice when *1452 people speak of a court's "moral legitimacy" or "procedural legitimacy," they may not mean whether courts actually are fair and just but whether people believe that they are fair and just. According to this analysis, moral and procedural legitimacy are elements of trust and confidence in public officials - in this case, trust and confidence that these officials are upright and honest and will do the right thing. Understood in this broader sense, the question of the Court's legitimacy concerns whether people will continue to have faith in the Court as a fair-minded arbiter of constitutional questions, whether they trust the Court, whether they have confidence in its decisions, and whether they believe its decisions are principled and above mere partisan politics. That sort of confidence and trust probably has been shaken, particularly among lawyers and legal academics, but also in portions of the public at large. Even so, the effects of Bush v. Gore on the Court's legitimacy may differ markedly for different populations and social groups. Perhaps trust and confidence have been damaged among Democratic voters - who are a sizeable proportion of the population - and within the legal academy, which tends to be liberal. But in other groups, the evidence of a loss of faith is quite mixed. Republican politicians like Tom DeLay and Trent Lott probably now have renewed confidence in the Court. After Bush v. Gore, they know that they can rely on the Court to do the right thing (in all the different senses of the word "right"). Although liberal legal academics have been badly shaken by the decision, conservative legal academics have come to the Court's defense, and one expects that we will see more spirited endorsements in the future. n147 Finally, most Americans are not privy to the niceties of constitutional argument and so may not be able to judge whether the Court has played fast and loose with the law. Indeed, the polling data do not seem to suggest a sharp drop off in the Court's approval ratings. A Gallup Poll conducted from January 10 to 14, 2001, indicated that 59 of those surveyed approved of how the Court was handling its job while 34 disapproved, only a three percentage point drop from its 62 approval rating in a similar poll taken from August 29 to September 5, 2000, long before the Florida controversy occurred. n148 Make no mistake: Many people are very, very angry at the Supreme Court, and the Court probably has lost their trust and confidence. But these citizens may not constitute a majority *1453 of all Americans. Perhaps more importantly, the persons who are currently in power like what the Court is doing just fine. In any case, there is no doubt in my mind that the Supreme Court will eventually regain whatever trust and confidence among the American public that it lost in Bush v. Gore. The Supreme Court has often misbehaved and squandered its political capital foolishly. It has done some very unjust and wicked things in the course of its history, and yet people still continue to respect and admire it. If the Court survived Dred Scott v. Sandford, it can certainly survive this.
A coalition of citizen’s organizations is challenging the U.S. Armed Forces, alleging that the health and safety of communities across the country is under assault from past and current polluting military operations. In a new national campaign, citizens impacted by military operations from Hooper Bay, Alaska to Vieques, Puerto Rico are participating in the Military Toxics Project?s effort to hold the U.S. military accountable to the same laws that apply to all other sectors of society. The military is not subject to most laws that protect communities and workers, either because it is completely exempt or because the Environmental Protection Agency has no enforcement authority, says Steve Taylor, national coordinator for the Maine based Military Toxics Project. The campaign is timed to support the introduction of a bill by Congressman Bob Filner, a California Democrat, who represents San Diego, home to a large contingent of U.S. Navy ships in the Pacific Fleet, the Space and Naval Warfare Systems Center, and the Naval Air Force. On June 13, Filner introduced the Military Environmental Responsibility Act, which seeks to remove all military exemptions from existing environmental, worker and public safety laws and regulations. To back up the new bill, the Military Toxics Project (MTP) released to Congress a report entitled "Defend Our Health: The U.S. Military?s Environmental Assault On Communities." Prepared by MTP and Environmental Health Coalition, an environmental justice organization based in San Diego, the report shows how military exemptions from laws and lax enforcement by regulatory agencies have contributed to the existence of more than 27,000 toxic hot spots on 8,500 military properties across the country. Based on the findings of this report, the citizens' groups charge that military activities like legal and illegal toxic dumping, testing and use of munitions, manufacture and use of depleted uranium ammunition, hazardous waste generation, nuclear propulsion, toxic air emissions have created "an environmental catastrophe. A2: Econ T/Heg
2. No impact in the context of relative power The downgrade crisis, and the financial mess that preceded it, has resulted in a raft of doomsday-like pronouncements on the future of the United States. According to the well-known author Christopher Hitchens, "the U.S. financial crisis is just the latest example of the trend that threatens to put the country on a par with Zimbabwe, Venezuela and Equatorial Guinea." Not only that, counters Nicholas Kristof, the New York Times columnist: "It is the unequal distribution of wealth that puts the United States on the same level as banana republics like Nicaragua, Venezuela or Guyana.” Russian President Vladimir Putin goes even further: “In fact, the U.S. is a parasite that lives off of the global economy." American political leaders, meanwhile, respond with finger-pointing. For Mitt Romney, one of the leading Republican presidential hopefuls, the problem is that the U.S. is "...only inches away from ceasing to be a free market economy." And President Barack Obama regrets that his country "does not have an AAA political system to match its AAA credit." It is too easy, these days, to conclude that the United States is a political and economic disaster-zone and that it may not remain the most powerful country in the world. For those who already had doubts about American supremacy, the shameful negotiations about the debt ceiling were the final confirmation that the superpower is in freefall. And, of course, the collapse of the stock market and the possibility that the economy is diving back into recession are yet further manifestations of an unstoppable American debacle. This conclusion, so obvious to so many, is wrong. Here’s why: 1) Some of the main pillars of America’s international dominance are still the world’s strongest. Wall Street, the Pentagon, Hollywood, Silicon Valley, universities and many other sources continue to be unmatched by their foreign rivals. The stock market is taking a beating and budget cuts will weaken many sectors, including, for the first time in decades, the Armed Forces. Still, the current U.S. advantage over its rivals is so large that these cuts will not threaten its position at the top. For example: America’s Coast Guard has more ships than the entire fleets of the 12 largest navies in the world. It is not for nothing that the U.S. spends more on defense than any other country. And in other strategic areas, U.S. supremacy, while under stress and challenged, is still strong. 2) Absolute power does not matter. What matters is relative power compared to rivals. Although the U.S. may be declining in absolute power, its closest competitors also have grave problems and face difficult internal and external threats, both political and economic. These problems weaken them as much or more than those besetting the U.S. 3) Demographics. In almost all rich countries the population is growing slowly or declining. In the U.S. it is increasing. In addition, it remains a magnet for the world's most talented and entrepreneurial people. It is also a country that not only integrates immigrants quickly but it also knows better than most others how to give them opportunities and use them more productively, especially those who are more skilled and better educated. 4) When there’s a global financial panic and investors are seeking a safe haven for their savings, where do they turn? To the United States. As all stock markets are tumbling, the appetite for buying U.S. Treasuries continues unabated. Such was the demand for these bonds, last week that their yields fell to their lowest level in history. The first Monday of trading after the Standard and Poor's downgrade, the demand for U.S. treasury bonds soared. Investors did not care that they would get a minimal return on their capital, their priority was to ensure that they were investing in the bonds of a government that would keep their capital safe. Amazing, huh? We are talking about the same government and the same bonds whose solvency is being fiercely contested. Even a downgrading by the rating agency Standard and Poor's of U.S. sovereign bonds did not produce capital flight from that market. The global financial market gave a resounding answer to those who maintain that the unfortunate debate in Washington over the debt ceiling did irreversible damage to U.S. credit. That idea may play well in editorials and talk shows, but it has been dismissed by those who know about money. Investors speak with deeds, not words. And their decisions show that they believe the U.S. government bonds still offer the safest investment in the world. In the long run the SandP downgrade may end up hurting the credibility of SandP more than the credit of the United States government. 5) The influence of radical and destructive political factions will be temporary. The rise of extremist groups with ideas, which suddenly dominate the political scene only to disappear just as quickly as they appeared, is a recurrent phenomenon in the U.S. McCarthyism and the various populist movements are examples of this. Ross Perot is another. And the Tea Party will be just one more. This will become clear as the practical consequences of the Tea Party ideology will become better known and, more importantly, felt. This includes the groups that have been so easily energized by the Tea Party's anti-Washington rhetoric. Is the United States facing enormous problems? Yes. Does it have more global competitors challenging its supremacy? Of course. Has it been weakened? Yes. More than other countries? No. Will it remain, for the foreseeable future, the most powerful country in the world? Yes. It is important to remember that the risk of biological attack is very low and that, partly because viruses can mutate easily, the potential for natural outbreaks is unpredictable. The key is having the right tools in case of an outbreak, epidemic or pandemic, and these include a plan for containment, open channels of communication, scientific research and knowledge sharing. In most cases involving a potential pathogen, the news can appear far worse than the actual threat. Infectious Disease Propagation Since the beginning of February there have been occurrences of H5N1 (bird flu) in Cambodia, H1N1 (swine flu) in India and a new, or novel, coronavirus (a member of the same virus family as SARS) in the United Kingdom. In the past week, a man from Nepal traveled through several countries and eventually ended up in the United States, where it was discovered he had a drug-resistant form of tuberculosis, and the Centers for Disease Control and Prevention released a report stating that antibiotic-resistant infections in hospitals are on the rise. In addition, the United States is experiencing a worse-than-normal flu season, bringing more attention to the influenza virus and other infectious diseases. The potential for a disease to spread is measured by its effective reproduction number, or R-value, a numerical score that indicates whether a disease will propagate or die out. When the disease first occurs and no preventive measures are in place, the reproductive potential of the disease is referred to as R0, the basic reproduction rate. The numerical value is the number of cases a single case can cause on average during its infectious period. An R0 above 1 means the disease will likely spread (many influenza viruses have an R0 between 2 and 3, while measles had an R0 value of between 12 and 18), while an R-value of less than 1 indicates a disease will likely die out. Factors contributing to the spread of the disease include the length of time people are contagious, how mobile they are when they are contagious, how the disease spreads (through the air or bodily fluids) and how susceptible the population is. The initial R0, which assumes no inherent immunity, can be decreased through control measures that bring the value either near or below 1, stopping the further spread of the disease. Both the coronavirus family and the influenza virus are RNA viruses, meaning they replicate using only RNA (which can be thought of as a single-stranded version of DNA, the more commonly known double helix containing genetic makeup). The rapid RNA replication used by many viruses is very susceptible to mutations, which are simply errors in the replication process. Some mutations can alter the behavior of a virus, including the severity of infection and how the virus is transmitted. The combination of two different strains of a virus, through a process known as antigenic shift, can result in what is essentially a new virus. Influenza, because it infects multiple species, is the hallmark example of this kind of evolution. Mutations can make the virus unfamiliar to the body's immune system. The lack of established immunity within a population enables a disease to spread more rapidly because the population is less equipped to battle the disease. The trajectory of a mutated virus (or any other infectious disease) can reach three basic levels of magnitude. An outbreak is a small, localized occurrence of a pathogen. An epidemic indicates a more widespread infection that is still regional, while a pandemic indicates that the disease has spread to a global level. Virologists are able to track mutations by deciphering the genetic sequence of new infections. It is this technology that helped scientists to determine last year that a smattering of respiratory infections discovered in the Middle East was actually a novel coronavirus. And it is possible that through a series of mutations a virus like H5N1 could change in such a way to become easily transmitted between humans. Lessons Learned There have been several influenza pandemics throughout history. The 1918 Spanish Flu pandemic is often cited as a worst-case scenario, since it infected between 20 and 40 percent of the world's population, killing roughly 2 percent of those infected. In more recent history, smaller incidents, including an epidemic of the SARS virus in 2003 and what was technically defined as a pandemic of the swine flu (H1N1) in 2009, caused fear of another pandemic like the 1918 occurrence. The spread of these two diseases was contained before reaching catastrophic levels, although the economic impact from fear of the diseases reached beyond the infected areas. Previous pandemics have underscored the importance of preparation, which is essential to effective disease management. The World Health Organization lays out a set of guidelines for pandemic prevention and containment. The general principles of preparedness include stockpiling vaccines, which is done by both the United States and the European Union (although the possibility exists that the vaccines may not be effective against a new virus). In the event of an outbreak, the guidelines call for developed nations to share vaccines with developing nations. Containment strategies beyond vaccines include quarantine of exposed individuals, limited travel and additional screenings at places where the virus could easily spread, such as airports. Further measures include the closing of businesses, schools and borders. Individual measures can also be taken to guard against infection. These involve general hygienic measures -- avoiding mass gatherings, thoroughly washing hands and even wearing masks in specific, high-risk situations. However, airborne viruses such as influenza are still the most difficult to contain because of the method of transmission. Diseases like noroviruses, HIV or cholera are more serious but have to be transmitted by blood, other bodily fluids or fecal matter. The threat of a rapid pandemic is thereby slowed because it is easier to identify potential contaminates and either avoid or sterilize them. Research is another important aspect of overall preparedness. Knowledge gained from studying the viruses and the ready availability of information can be instrumental in tracking diseases. For example, the genomic sequence of the novel coronavirus was made available, helping scientists and doctors in different countries to readily identify the infection in limited cases and implement quarantine procedures as necessary. There have been only 13 documented cases of the novel coronavirus, so much is unknown regarding the disease. Recent cases in the United Kingdom indicate possible human-to-human transmission. Further sharing of information relating to the novel coronavirus can aid in both treatment and containment. Ongoing research into viruses can also help make future vaccines more efficient against possible mutations, though this type of research is not without controversy. A case in point is research on the H5N1 virus. H5N1 first appeared in humans in 1997. Of the more than 600 cases that have appeared since then, more than half have resulted in death. However, the virus is not easily transmitted because it must cross from bird to human. Human-to-human transmission of H5N1 is very rare, with only a few suspected incidents in the known history of the disease. While there is an H5N1 vaccine, it is possible that a new variation of the vaccine would be needed were the virus to mutate into a form that was transmittable between humans. Vaccines can take months or even years to develop, but preliminary research on the virus, before an outbreak, can help speed up development. In December 2011, two separate research labs, one in the United States and one in the Netherlands, sought to publish their research on the H5N1 virus. Over the course of their research, these labs had created mutations in the virus that allowed for airborne transmission between ferrets. These mutations also caused other changes, including a decrease in the virus's lethality and robustness (the ability to survive outside the carrier). Publication of the research was delayed due to concerns that the results could increase the risk of accidental release of the virus by encouraging further research, or that the information could be used by terrorist organizations to conduct a biological attack. Eventually, publication of papers by both labs was allowed. However, the scientific community imposed a voluntary moratorium in order to allow the community and regulatory bodies to determine the best practices moving forward. This voluntary ban was lifted for much of the world on Jan. 24, 2013. On Feb. 21, the National Institutes of Health in the United States issued proposed guidelines for federally funded labs working with H5N1. Once standards are set, decisions will likely be made on a case-by-case basis to allow research to continue. Fear of a pandemic resulting from research on H5N1 continues even after the moratorium was lifted. Opponents of the research cite the possibility that the virus will be accidentally released or intentionally used as a bioweapon, since information in scientific publications would be considered readily available. The Risk-Reward Equation The risk of an accidental release of H5N1 is similar to that of other infectious pathogens currently being studied. Proper safety standards are key, of course, and experts in the field have had a year to determine the best way to proceed, balancing safety and research benefits. Previous work with the virus was conducted at biosafety level three out of four, which requires researchers wearing respirators and disposable gowns to work in pairs in a negative pressure environment. While many of these labs are part of universities, access is controlled either through keyed entry or even palm scanners. There are roughly 40 labs that submitted to the voluntary ban. Those wishing to resume work after the ban was lifted must comply with guidelines requiring strict national oversight and close communication and collaboration with national authorities. The risk of release either through accident or theft cannot be completely eliminated, but given the established parameters the risk is minimal. The use of the pathogen as a biological weapon requires an assessment of whether a non-state actor would have the capabilities to isolate the virulent strain, then weaponize and distribute it. Stratfor has long held the position that while terrorist organizations may have rudimentary capabilities regarding biological weapons, the likelihood of a successful attack is very low. Given that the laboratory version of H5N1 -- or any influenza virus, for that matter -- is a contagious pathogen, there would be two possible modes that a non-state actor would have to instigate an attack. The virus could be refined and then aerosolized and released into a populated area, or an individual could be infected with the virus and sent to freely circulate within a population. There are severe constraints that make success using either of these methods unlikely. The technology needed to refine and aerosolize a pathogen for a biological attack is beyond the capability of most non-state actors. Even if they were able to develop a weapon, other factors such as wind patterns and humidity can render an attack ineffective. Using a human carrier is a less expensive method, but it requires that the biological agent be a contagion. Additionally, in order to infect the large number of people necessary to start an outbreak, the infected carrier must be mobile while contagious, something that is doubtful with a serious disease like small pox. The carrier also cannot be visibly ill because that would limit the necessary human contact. As far as continued research is concerned, there is a risk-reward equation to consider. The threat of a terrorist attack using biological weapons is very low. And while it is impossible to predict viral outbreaks, it is important to be able to recognize a new strain of virus that could result in an epidemic or even a pandemic, enabling countries to respond more effectively. All of this hinges on the level of preparedness of developed nations and their ability to rapidly exchange information, conduct research and promote individual awareness of the threat. Flexibility DA – 2AC Whatever happens with regard to Syria, the larger consequence of the president's action will resonate for years. The president has made it highly unlikely that at any time during the remainder of his term he will be able to initiate military action without seeking congressional approval. It is understandable that many who have opposed actions (see: Libya) taken by the president without congressional approval under the War Powers Act would welcome Obama's newly consultative approach. It certainly appears to be more in keeping with the kind of executive-legislative collaboration envisioned in the Constitution. While America hasn't actually required a congressional declaration of war to use military force since the World War II era, the bad decisions of past presidents make Obama's move appealing to the war-weary and the war-wary. But whether you agree with the move or not, it must be acknowledged that now that Obama has set this kind of precedent -- and for a military action that is exceptionally limited by any standard (a couple of days, no boots on the ground, perhaps 100 cruise missiles fired against a limited number of military targets) -- it will be very hard for him to do anything comparable or greater without again returning to the Congress for support. And that's true whether or not the upcoming vote goes his way. 4. This president just dialed back the power of his own office. Obama has reversed decades of precedent regarding the nature of presidential war powers -- and whether you prefer this change in the balance of power or not, as a matter of quantifiable fact he is transferring greater responsibility for U.S. foreign policy to a Congress that is more divided, more incapable of reasoned debate or action, and more dysfunctional than any in modern American history. Just wait for the Rand Paul filibuster or similar congressional gamesmanship. The president's own action in Libya was undertaken without such approval. So, too, was his expansion of America's drone and cyber programs. Will future offensive actions require Congress to weigh in? How will Congress react if the president tries to pick and choose when this precedent should be applied? At best, the door is open to further acrimony. At worst, the paralysis of the U.S. Congress that has given us the current budget crisis and almost no meaningful recent legislation will soon be coming to a foreign policy decision near you. Consider that John Boehner was instantly more clear about setting the timing for any potential action against Syria with his statement that Congress will not reconvene before its scheduled September 9 return to Washington than anyone in the administration has been thus far. Perhaps more importantly, what will future Congresses expect of future presidents? If Obama abides by this new approach for the next three years, will his successors lack the ability to act quickly and on their own? While past presidents have no doubt abused their War Powers authority to take action and ask for congressional approval within 60 days, we live in a volatile world; sometimes security requires swift action. The president still legally has that right, but Obama's decision may have done more -- for better or worse -- to dial back the imperial presidency than anything his predecessors or Congress have done for decades. This study started out with two questions. The first was: ?Does war influence judicial decision - making?? The second was: ?Do national security claims influence judicial decision - making?? The answer to the first question is: In a general hypothetical s ignificant war, there is a statistically significant finding of voting against the government. In the models run using the Spaeth database where the government is a party, the influence of all significant wars on judicial decision - making generally was to vote against the government. Presidential approval ratings are statistically significant only in wartime, but with a positive coefficient. Outside of wartime, presidential approval ratings are not statistically likely to influence Supreme Court behavior. This result suggests that while Courts vote strategically and support a popular president, they are still statistically likely to find against the government in a significant war. These findings altogether suggest that that the Supreme Court votes strat egically with an eye towards the popularity of the president, but revert to skepticism of government‘s wartime claims as the war progresses. The answer to the second question is: National security claims brought by the government achieve a statistically significant likelihood that the Supreme Court will vote against the government. National security claims were statistically significant with a negative signifier. This finding is consistent across all the major wars as well as peacetime. It also suggest s that the Supreme Court generally is not predisposed to defer to the executive branch‘s arguments when it comes to national security claims 2. Plan doesn’t affect all power – the president will do what he wants absent direct prohibition The first and perhaps overarching reason underlying the growth of presidential power is that the constitutional text on the subject is notoriously unspecific, allowing as one writer maintains, for the office “to grow with the developing nation.”19 Unlike Article I, which sets forth the specific powers granted to Congress,20 the key provisions of Article II that grant authority to the President are written in indeterminate terms such as “executive power,”21 or the duty “to take care that the laws be faithfully executed.”22 Moreover, unlike the other branches, the Presidency has consistently been deemed to possess significant inherent powers.23 Thus, many of the President’s recognized powers, such as the authority to act in times of national emergency24 or the right to keep advice from subordinates confidential,25 are nowhere mentioned in the Constitution itself. In addition, case law on presidential power is underdeveloped. Unlike the many precedents addressing Congressional26 or federal judicial27 power, there are remarkably few Supreme Court cases analyzing presidential power. And the leading case on the subject, Youngstown Sheet and Tube Co. v. Sawyer, 28 is known less for its majority opinion than for its concurrence by Justice Jackson, an opinion primarily celebrated for its rather less-than-definitive announcement that much of presidential power exists in a “zone of twilight.”29 Accordingly, the question whether a President has exceeded her authority is seldom immediately obvious because the powers of the office are so openended.30 This fluidity in definition, in turn, allows presidential power to readily expand when factors such as national crisis, military action, or other matters of expedience call for its exercise.31 Additionally, such fluidity allows political expectations to affect public perceptions of the presidential office in a manner that can lead to expanded notions of the office’s power.32 This perception of expanded powers, in turn, can then lead to the perceived legitimacy of the President actually exercising those powers. Without direct prohibitions to the contrary, expectations easily translate into political reality.33 4. Judicial review doesn’t hinder the President’s ability to act quickly and decisively Thus, it also illustrates the truism, profoundly relevant to the war on terror, that limiting options available during emergencies can be good or bad, depending on what emergency responders, who may be tempted by sheer exhaustion to take hazardous shortcuts, will do with the latitudes they seize or receive. Campaigners for executive discretion routinely invoke the imperative need for "flexibility" to explain why counterterrorism cannot be successfully conducted within the Constitution and the rule of law. But general rules and situation-specific improvisation, far from being mutually exclusive, are perfectly compatible. 1 8 There is no reason why mechanically following protocols designed to prevent harried nurses from negligently administering the wrong blood type should preclude the same nurses from improvising unique solutions to the unique problems of a particular trauma patient. Drilled-in emergency protocols provide a psychologically stabilizing floor, shared by co- workers, on the basis of which untried solutions can then be improvised. 9 In other words, there is no reason to assert, at least not as a matter of general validity, that the importance of flexibility excludes reliance on rules during emergencies, including national-security emergencies. The emergency-room example can also deepen our understanding of national-security crises by bringing into focus an important but sometimes neglected distinction between threats that are novel and threats that are urgent. Dangers may be unprecedented without demanding a split-second response. Contrariwise, urgent threats that have appeared repeatedly in the past can be managed according to protocols that have become automatic and routine. Emergency-room emergencies are urgent even when they are perfectly familiar. Terrorists with access to weapons of mass destruction ("WMD"), by contrast, present a novel threat that is destined to endure for decades, if not longer. Such a threat is not an "emergency" in the sense of a sudden event, such as a house on fire, requiring genuinely split-second decision making, with no opportunity for serious consultation or debate. Managing the risks of nuclear terrorism requires sustained policies, not short-term measures. This is feasible precisely because, in such an enduring crisis, national-security personnel have ample time to think and rethink, to plan ahead and revise their plans. In depicting today's terrorist threat as "an emergency," executive-discretion advocates almost always blur together urgency and novelty. This is a consequential intellectual fallacy. But it also provides an opportunity for critics of executive discretion in times of crisis. If classical emergencies, in the house- on-fire or emergency-room sense, turn out to invite and require rule-governed responses, then the justification for dispensing with rules in the war on terror seems that much more tenuous and open to question. In crises where "time is of the essence" 2 1 and serious consultation is difficult or impossible, it is imperative for emergency responders to follow previously crafted first-order rules (or behavioral commands) to enable prompt remedial action and coordination. In crises that are not sudden and transient but, instead, endure over time and that therefore allow for extensive consultation with knowledgeable parties, it is essential to rely on previously crafted second-order rules (or decision-making procedures) designed to encourage decision makers to consider the costs and benefits of, and feasible alternatives to, proposed action plans. In medicine, a typical first-order rule is "always wash your hands before inserting a stent," and a typical second-order rule is "always get a second opinion before undertaking major surgery." 9. Pre-9/11 restrictions disprove the DA – no significant effect on readiness The evidence that compliance with environmental laws has seriously impaired U.S. preparations for war is, however, far from conclusive. After all, the U.S. military's successes in Afghanistan and Iraq were achieved using troops trained and weapons tested under pre-September 11th environmental statutes and regulations. A Navy Admiral, testifying before Congress in support of RRPI in 2003, declared that "the readiness of the Navy is excellent. 32 According to a General Accounting Office report in 2002, "despite the loss of some capabilities, service readiness data do not indicate the extent to which encroachment has significantly affected reported training readiness.” 33 In fact, the report concluded, "Training readiness, as reported in official readiness reports, remains high for most units.,34 Environmental Protection Agency ("EPA") Administrator Christine Todd Whitman went further in early 2003, stating, "I don't believe that there is a training mission anywhere in the country that is being held up or not taking place because of environmental protection regulation."35 A more recent study by the Congressional Research Service noted that "although DOD has cited some examples of training restrictions or delays at certain installations and has used these as the basis for seeking legislative remedies, the department does not have a system in place to comprehensively track these cases and determine their impact on readiness.' "36 Some have taken a dimmer view of DOD's protests. EPA complained that the definition of "military readiness activities" in the DOD proposal was "broad and unclear and could be read to encompass more than the Department intends."37 Congressman John Dingell, a Democrat from Michigan, was much more emphatic: "I have dealt with the military for years and they constantly seek to get out from under environmental laws. But using the threat of 9-11 and al Qaeda to get unprecedented environmental immunity is despicable. 38 | 9/21/13 |
NDT Round 1 - 1ACTournament: NDT | Round: 1 | Opponent: Binghamton RS | Judge: Mccaffrey, Russel, Munoz Plan: The United States Federal Judiciary should substantially increase National Environmental Policy Act restrictions on the President’s authority to introduce Armed Forces into hostilities. 1AC – Hegemony The Supreme Court's approach to standing, therefore, raises serious questions about the viability
DOD compliance is perceived as ad hoc and self-interested – Court action is necessary to signal to the market a long-term commitment to energy efficiency Immediately following the events of September 11, the political climate was not conducive to We face this domestic challenge while other major powers are experiencing rapid economic growth. American power facilitates status bargaining – our impact is supported by interdisciplinary studies Empirically Proven- Stable hierarchies in international politics prevents great power conflict --- the alternative is violent autocratic rise Historical studies prove better than the alt’ – deterrence is critical to solving war The blanket rejection of US power results in genocide | 3/28/14 |
NDT Round 1 - 2AC KTournament: NDT | Round: 1 | Opponent: Binghamton RS | Judge: Mccaffrey, Russel, Munoz
Vote aff is good idea Using several distinct research approaches or sources of information in conjunction is a valuable strategy No offense – plan doesn’t complicate understand Recognizing the possibility of rearticulating danger leads us to a final question: what modes Alt fails – wishful calls for revamping sovereignty do nothing – simultaneous political action is vital to prevent short-term threats to survival Sovereignty is in our collective minds. What we look at, the way we No link – the plan is not every instance of state violence – not a reason to vote neg Heg now diff With all of the American angst during the first year or so of the Obama Util NO L Reject their assertions—White, Western knowledge production is still valuable for addressing institutional racism Offense A2 Native Epistemology So Argentina is “minimizing the state”–cutting down public expenditures, the way Heg is key to alt solvency – gives American intellectuals a reason to be proud and take positive political action Such people find pride in American citizenship impossi¬ble, and vigorous participation in electoral politics | 3/28/14 |
NDT-1ac-Rd4Tournament: Ndt | Round: 4 | Opponent: Minnesota Crunkilton-Ehrlich | Judge: Deming, Repko, Woodruff 1ac1AC – No DA’s Contention 1- No Da’sDOD complies with NEPABaldwin 12 (Charlotte Fay Baldwin, US Department of the Army Fort Hood, Texas, "The National Environmental Policy Act (NEPA) Process with Military Projects By October 2012," http://dukespace.lib.duke.edu/dspace/bitstream/handle/10161/6030/C.20Baldwin_Capstone20Paper20Oct20209202012_FINAL.pdf?sequence=1-http://dukespace.lib.duke.edu/dspace/bitstream/handle/10161/6030/C. Baldwin_Capstone Paper Oct 9 2012_FINAL.pdf?sequence=1) The Department of Defense (DoD) follows the rigorous requirements outlined in NEPA, Court controversies nowZiskind 13 The new US Supreme Court term, which began on Oct(ober). 7 Political question doctrine is deadStras 08 Not surprisingly, the Court has limited the application of the political question doctrine to Plan Plan: The United States Federal Judiciary should substantially increase National Environmental Policy Act restrictions on the President’s authority to introduce Armed Forces into hostilities.1AC – Warming Contention 2 is WarmingScenario 1 is DiplomacyWarming agreements are failing in the status quo – U.S. leadership is key to jumpstart negotiations and lead to a grand bargainTaylor 12 The meeting will seek to agree to start talks on a set of "sustainable Court action to undo the harmful judicially created national security exemption in NEPA is crucial to solving global climate change – through transnational legal norms, and credibility in climate negotiationsGormley 10 (Neil Gormley, J.D., 2009, Harvard Law School, "Standing in the Way of Cooperation: Citizen Standing and Compliance with Environmental Agreements," Summer 2010, West Northwest Journal of Environmental Law 26 Policy, 16 Hastings W.-N.W. J. Env. L. 26 Pol’y 397) The Supreme Court’s approach to standing, therefore, raises serious questions about the viability Courts action key to international agreements – key to international norms and cooperationLong 8 – Professor of Law @ Florida Coastal School of Law ~Andrew Long, "International Consensus and U.S. Climate Change Litigation," 33 Wm. 26 Mary Envtl. L. 26 Pol’y Rev. 177, Volume 33 | Issue 1 Article 4 (2008)
Warming causes extinctionMazo 10 (Jeffrey Mazo – PhD in Paleoclimatology from UCLA, Managing Editor, Survival and Research Fellow for Environmental Security and Science Policy at the International Institute for Strategic Studies in London, 3-2010, "Climate Conflict: How global warming threatens security and what to do about it," pg. 122) No adaptation – causes all impactsRoberts 13—citing the World Bank Review’s compilation of climate studies Best science proves warming is real and anthropogenicMuller 12 (Richard A., professor of physics at the University of California, Berkeley, and a former MacArthur Foundation fellow, "The Conversion of a Climate-Change Skeptic," 7-28-12, http://www.nytimes.com/2012/07/30/opinion/the-conversion-of-a-climate-change-skeptic.html?_r=226pagewanted=all-http://www.nytimes.com/2012/07/30/opinion/the-conversion-of-a-climate-change-skeptic.html?_r=226pagewanted=all) CALL me a converted skeptic. Three years ago I identified problems in previous climate ====Independently, international cooperation solves extinction ==== Rather than a single overriding threat, the United States and other countries face a Scenario 2 is MarketsDOD compliance is perceived as ad hoc and self-interested – Court action is necessary to signal to the market a long-term commitment to energy efficiencyHorton 11 ~Laura, Doctor of Jurisprudence Candidate 2012, Golden Gate University School of Law, FUTURE FORCE SUSTAINABILITY: DEPARTMENT OF DEFENSE AND ENERGY EFFICIENCY IN A CHANGING CLIMATE, 2011 Golden Gate University Golden Gate University Environmental Law Journal Spring, 2011, L/N~ Immediately following the events of September 11, the political climate was not conducive to We face this domestic challenge while other major powers are experiencing rapid economic growth. Contention 3 is THE LAWThe Court has ended broad deference to the executive but maintains environmental deference through a "national security" exemption to NEPA during wartime – court action key to reverse it Furthermore, it is the Court’s responsibility to ensure that the Executive is abiding by National security exemptions to NEPA guts enforcement and signals the court apathy - the impact biodiversity Since the 1970s, many laws have been passed with the overarching goal of protecting Biodiversity decline causes extinction The national security exemption guts preliminary injunctions against the military – the legal language creates a higher threshold for court enforcement In Winter v. Natural Resources Defense Council, Inc., the Court finally focused Providing ex ante injunctive relief based on the possibility of irreparable harm is crucial to prevent catastrophic tech failures in the future If the judiciary surrenders to these difficulties and refuses to involve itself in the dispute Try or die - Regulated technologies are beneficial, but failure to provide prior precautionary measures ensures eventual extinction The world is currently undergoing a remarkable revolution in science and technology that will seemingly Specifically - Military nanotech development occurring in the status quo – causes extinction Most technological advances throughout history impact countries and societies by creating a dominant empire or Biggest impact in the round Environmentalism deters harmful uses of nanotech and promotes its positive potential | 3/29/14 |
NDT-1ar-Rd4Tournament: Ndt | Round: 4 | Opponent: Minnesota Crunkilton-Ehrlich | Judge: Deming, Repko, Woodruff 1arTPlan is a restriction – NEPA non-compliance causes an injunction, forbids the activityKrueger 9 (William, J.D., University of North Carolina School of Law, Legal Aid of North Carolina, Department of Environment 26 Natural Resources, North Carolina Journal Of Law 26Technology Volume 10,Issue 2: Spring 2009 "In The Navy: The Future Strength Of Preliminary Injunctions Under NEPA In Light Of NRDC v. Winter") Since the 1970s, many laws have been passed with the overarching goal of protecting Nanotech Now Advancements in molecular manufacturing are speeding up—nanobots will exist.McGaughran 10—Honors in Environmental Studies @ University of Colorado - Boulder ~Jamie L. McGaughran, "FUTURE WAR WILL LIKELY BE UNSUSTAINABLE FOR THE SURVIVAL AND CONTINUATION OF HUMANITY AND THE EARTH’S BIOSPHERE," A thesis submitted to the University of Colorado at Boulder in partial fulfillment of the requirements to receive Honors designation in Environmental Studies, May 2010, pg. http://citizenpresident.com/uploads/Whole_Thesis_Future_War_UnSstnble.pdf-http://citizenpresident.com/uploads/Whole_Thesis_Future_War_UnSstnble.pdf~~ It is conjectured in some scientific circles that when molecular manufacturing comes of age it Nano research is fueling tech convergenceWhitman 6—Senior Lecture in Peace Studies @ Bradford University ~Jim Whitman (Director of Postgraduate Programme @ School of Social and International Studies, Bradford University), "Governance Challenges of Technological Systems Convergence," Bulletin of Science, Technology 26 Society Vol. 26, No. 5, October 2006, pg. 398-409~ Advances in nanoscience and nanotechnology are rapidly furthering the unification of domains—a profound Circumvention1AR AT Circumvention – Enviro-Specific Environmental restrictions get implemented – not the big counter-terror / military regulation you assume – just requires DoD to implement minor strategy adjustmentsObama complies – Goad says his state of the union speech promised to restrict agency environmental damage – the plan would be the perfect tool to do thisMilitary complies – Gillespie says they’ll go along with environmental law when asked toThe DoD will complyBaldwin 12 — US Dept of the Army, certificate in NEPA Due Environmental Ldrshp Program @ Nicholas School of the Environment @ Duke (Charlotte Fay, Oct 2012, "The National Environmental Policy Act (NEPA) Process with Military Projects," http://dukespace.lib.duke.edu/dspace/bitstream/handle/10161/6030/C.20Baldwin_Capstone20Paper20Oct20209202012_FINAL.pdf?sequence=1) Review Process The environmental review process under NEPA provides an opportunity for the public to Military will have no trouble complyingBaldwin 12 — US Dept of the Army, certificate in NEPA Due Environmental Ldrshp Program @ Nicholas School of the Environment @ Duke (Charlotte Fay, Oct 2012, "The National Environmental Policy Act (NEPA) Process with Military Projects," http://dukespace.lib.duke.edu/dspace/bitstream/handle/10161/6030/C.20Baldwin_Capstone20Paper20Oct20209202012_FINAL.pdf?sequence=1) The purpose of the National Environmental Policy Act (NEPA) is to include environmental 1AR AT Circumvention – Generic President will comply – Bradley says external perception creates an obligation to abide – proven by BushPresidents will comply with military restrictionsBarron 8 – Professor of Law at Harvard Law School and Martin S. Lederman, Visiting Professor of Law at the Georgetown University Law Center, David J, "The Commander in Chief at the Lowest Ebb — A Constitutional History", Harvard Law Review, February, 121 Harv. L. Rev. 941, Lexis Obama will comply with the courtVladeck 9 — Professor of Law and Associate Dean for Scholarship at American University Washington College of Law, senior editor of the peer-reviewed Journal of National Security Law and Policy, Supreme Court Fellow at the Constitution Project, and fellow at the Center on National Security at Fordham University School of Law, JD from Yale Law School (Stephen I., 3-1-2009, "The Long War, the Federal Courts, and the Necessity / Legality Paradox," http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=100226context=facsch_bkrev) He’ll act as if he’s constrainedPrakash 12 – professor of law at the University of Virginia and Michael Ramsey, professor of law at San Diego, Saikrishna, "The Goldilocks Executive" Feb, SSRN Hostilities PICTurn 4. Turn – NEPA allows for flexibility and makes our military more effectiveDycus 96 China Impact China war coming now – our evidence is from –It’s not Africa war – it’s US china war over Africa Impact is extinctionLieven 12 (Anatol, Professor in the War Studies Department – King’s College (London), Senior Fellow – New America Foundation (Washington), "Avoiding US-China War," New York Times, 6-12, http://www.nytimes.com/2012/06/13/opinion/avoiding-a-us-china-war.html) Relations between the United States and China are on a course that may one day A2: Econ Ties Check China Some argue that the risk of war—even an accidental war—is precluded Enviro Slows Down Conflict Environmental liability deters wars of aggressionMcManus 06 In addition to fairness, imposing civil liability on Coalition nations for environmental damage caused Africa conflict coming now – harms the environmentHynes 11 Our national security has been reduced in large part to energy security, which has Uniqueness Africa intervention coming nowDorrie 13 The appointments will strengthen the interventionist faction in the Obama administration; if this results Intervention makes shit worse Intervention makes the situation worseRogers 12 Military intervention may indeed be complicated and unpredictable, not least because of the heterogeneous Space Weapons – 1AR Space weapons result in U.S.- Russia war – causes extinction – that’s Schaatz and Helfand – triggers miscalculation which escalates to nuclear winter- plan solves by restraining their introduction into hostilities because of environmental effectsSpace militarization makes global WMD conflict inevitableMitchell 1 (Gordon, Associate Professor and Dir Debate – U Pittsburgh, Et al., ISIS Briefing on Ballistic Missile Defense, July, http://www.isisuk.demon.co.uk/0811/isis/uk/bmd/no6.html-https://mail.msu.edu/cgi-bin/webmail?timestamp=115577364626md5=nbdSk8IggXVhlJHMdBeJkw3D3D26redirect=http3A2F2Fwww.isisuk.demon.co.uk2F08112Fisis2Fuk2Fbmd2Fno6.html) It comparatively outweighs their disad – greatest existential riskBostrom 2 (Nick, PhD Philosophy – Oxford University, "Existential Risks: Analyzing Human Extinction Scenarios", Journal of Evolution and Technology, Vol. 9, March, http://www.nickbostrom.com/existential/risks.html) Space Weapons Solvency – 1AR US is pursing space weaponization – only environmental protection can stop itScheetz 6 (Lori – J.D. Candidate, Georgetown University Law Center, "Infusing Environmental Ethics into the Space Weapons Dialouge", Georgetown International Environmental Law Review, Fall, 19 Geo. Int’l Envtl. L. Rev. 57, lexis) Plan solves – placing importance in environmental protection prevents weaponizationScheetz 6 (Lori – J.D. Candidate, Georgetown University Law Center, "Infusing Environmental Ethics into the Space Weapons Dialouge", Georgetown International Environmental Law Review, Fall, 19 Geo. Int’l Envtl. L. Rev. 57, lexis) Space Weapons Now – 1AR US space weaponization is inevitable – now is key to prevent destabilizing arms racesChanock 13 (Alexander – J.D. Candidate 2014, UCLA School of Law; Claremont McKenna College, 2011, "THE PROBLEMS AND POTENTIAL SOLUTIONS RELATED TO THE EMERGENCE OF SPACE WEAPONS IN THE 21ST CENTURY", 2013, 78 J. Air L. 26 Com. 691, lexis) | 3/29/14 |
NDT-2ac-Rd4Tournament: Ndt | Round: 4 | Opponent: Minnesota Crunkilton-Ehrlich | Judge: Deming, Repko, Woodruff 2acMilitary Training DA – 2AC 2. Environmental regulations prevent kickout but don’t affect trainingLindemann 03 Exclusion of military facilities and contractors from the requirements of RCRA and CERCLA will negate Navy decline inevitable- Rising powers and budget cutsGibbons-Neff 13 Former U.S. Deputy Undersecretary of the Navy Seth Cropsey told an audience 3. Environmental restrictions don’t hurt the Navy – their impacts are overblownLondon 9 — J.D. Candidate, 2011 @ Denver Univ Law School (Ian K, 2009, "Comment: Winter v. National Resources Defense Council: Enabling the Military’s Ongoing Rollback of Environmental Legislation," 87 Denv. U.L. Rev. 197, L/N) First, the Court deferred to the Navy’s claim that no evidence connected the forty Nuclear Deterrence NEW DA – 2AC Obama cuts nowMazza 12 It’s unclear if the U.S. is prepared to deal with such an The plan’s mandated court application of NEPA to military matters does not cause a spillover to state secretsGillespie 12 — Prof @ Univ of Waikato, has advised the Ministry of Foreign Affairs and Trade and the Department of Conservation, provides commissioned work for the United Nations and the Commonwealth Secretariat, has been awarded a Rotary International Scholarship, a Fulbright Fellowship, a Rockefeller Fellowship (Alexander, Winter 2012, "ARTICLE: The Limits of International Environmental Law: Military Necessity v. Conservation," 23 COLO. J. INT’L ENVTL. L. 26 POL’Y 1, L/N) Although the environmental progress between 1991 and 2001 was slow, at least it was Real talk: they won’t disclose – have to have some sort of standing, not top of agenda, only ev is from like ’namVagueness 1. We meet- plan text says introduction of armed forced into hostilities- we are whatever they define it as2. We meet – plan prevents introduction of humans into conflictAt worst – the plan is topical but indirectly solves – restricting armed forces also restricts their weapons useJensen 3 (Major Eric Talbot – Professor, International and Operational Law Department, The Judge Advocate General’s School, U.S. Army, "Unexpected Consequences From Knock-On Effects: A Different Standard for Computer Network Operations?", 2003, 18 Am. U. Int’l L. Rev. 1145, lexis) 3. C/I Armed forces includes all components of the military – it’s their definitionDLA 13 (Defense Logistics Agency Manual – US Military, "Defense Logistics Agency 4. Especially in the context of hostilitiesPhelps 96 (Lieutenant Colonel Richard – Chief, Environmental Law, Headquarters United States Air Forces in Europe, Ramstein Air Base, J.D., Oklahoma City University School of Law, "Environmental Law for Overseas Installations", 1996, 40 A.F. L. Rev. 49, lexis) 5. Prefer our interpretationA. Overlimits – no part of limiting armed forces just limits humans – they exclude things guns that the humans useB. Ground –weapons aff are critical to aff flexibility that prevents a stale topicC. Education – weapons are a core part of the literature6. Their Lorber card is in the context of nuclear weapons and cyber operations – not weapons humans use7. Function limits check – Agent cp’s solve their runaway weapons claims8. Reasonability is good – prevents a race to the bottom and arbitrary counter interpretations that exclude the affT- Restrinction=Prohibit -2AC NEPA 1. We meet – plan prevents the use of armed forces if their use violates NEPA – that’s a restrictionLobel 8 (Jules – Professor of Law, University of Pittsburgh Law School, "Conflicts Between the Commander in Chief and Congress: Concurrent Power over the Conduct of War", 2008, Ohio State Law Journal, 69 Ohio St. L.J. 391, lexis) We meet – NEPA is a restrictionAbby 09 2. Judicial restriction means regulationKerrigan 73 (Frank, Judge @ Court of Appeal of California, Fourth Appellate While the studies were in progress, the United States Supreme Court found the impact 3. Counter interpretation – restrict means to limit through conditions. Restriction is limitation not prohibitionCAC 12, COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, COUNTY OF LOS ANGELES, Plaintiff and Respondent, v. ALTERNATIVE MEDICINAL CANNABIS COLLECTIVE et al., Defendants and Appellants, DIVISION ONE, 207 Cal. App. 4th 601; 143 Cal. Rptr. 3d 716; 2012 Cal. App. LEXIS 772 3. Prefer it –A) Overlimits - all restrictions are regulations on military activity – not a ban on any one category – they result in 8 aff’sB) Education – regulations on presidential activitiy key to broaden research which allows for encompassing understanding of war powers – bredth outweighs depth4. Aff ground outweighs – neg gets agent counterplans, conditionality and topic generics that check their impact claims5. No ground– no disads, CP’s or K’s that no longer apply6. Reasonability is good – prevents a race to the bottom and arbitrary counter interpretations that exclude the affCarbon Tax CP – 2AC Perm do both –Treaty can’t solve – internal non-comply Doesn’t solve international eladership – other countries won’t adopt because they still perceive the US to have an exemption – that’s Gormely – means they can’t solve warmingAlso means they can’t solve Heg b/c the US military needs to develop those technologies to drive the civilian sector, it’s not the other way around b/c military has existing infrastructureCan’t solve irreparable harm – overturning winter v. NRDC keyThe plan causes carbon exporting – turns the caseNowicki 11 (Meghan, JD – University of Alabama, "Note: Implementing Sustainable Industrial Development in the United States and Abroad: the Need for Legislation and International Cooperation," Alabama Law Review, 62 Ala. L. Rev. 1093, Lexis) Inelastic demand means high electricity prices slay consumer spending and collapse the economyEnergy Tech Stocks 8 ("U.S. Power Agency Warns High Electricity Prices Could Plague America ’For Years to Come’," 6/30, http://energytechstocks.com/wp/?p=1396) America’s federal power agency has warned that high power prices could plague the nation " Nuclear warAuslin 9 (Michael, Resident Scholar – American Enterprise Institute, and Desmond Lachman – Resident Fellow – American Enterprise Institute, "The Global Economy Unravels", Forbes, 3-6, http://www.aei.org/article/100187) Carbon tax fails – can’t predict its effect on the marketGorrie 8 (Peter Gorrie, Toronto Star, "To work, carbon tax must sting," 08, http://www.thestar.com/sciencetech/Environment/article/295677) — Conditionality is a voter – creates time and strategy skews, not reciprocal, argumentative irresponsibility, and one conditional advocacy solves their offenseIntro PIC – 2AC 1. Perm do both2. They are in a double either –A) The counterplan generates court precedent – they are a ruling that spills up to do the aff and links to the net benefit-OR-B) The counterplan is a limited ruling – they have to clarify that the CP does not result in the aff and therefore does not generate precedent – that means that the national security exemption remains on the books- that means it can’t solve the case –First - Warming – the national security exemption will still be used to justify shutting down warming citizen suits – prevents action on warming – that’s Lightbody and Narodick( ) Any exemption is used as a trump card – takes out solvencyStellakis 10 Second - Bioterror – exemption remaining on the books means biodefense companies will continue to shed regulations which triggers the impact –that’s Donovan and MilesCondo 3. Perm do the CP4. Plan solves enviro collapse – extinctionParsons 98 (Rymn James – Lieutenant Commander, JAGC, U.S. Navy. Staff Judge Advocate to Commander, "The Fight to Save the Planet: U.S. Armed Forces, "Greenkeeping," and Enforcement of the Law Pertaining to Environmental Protection During Armed Conflict", 1998, 10 Geo. Int’l Envtl. L. Rev. 441, lexis) 5. Conditionality – say your normal shit6. CP is a voter -A. Kills education - boggles the debate down in contrived and arbitrary issues.B. Steals aff ground - PICs kill our ability to make comparisons based on the merits of the plan vs. the status quo or other counterplans.Plan solves space weapons – solves U.S. Russia warScheetz 6 (Lori – J.D. Candidate, Georgetown University Law Center, Cites Thomas Graham Jr. – Former Acting Director of the U.S Arms Control and Disarmament Agency, "Infusing Environmental Ethics into the Space Weapons Dialouge", Georgetown International Environmental Law Review, Fall, 19 Geo. Int’l Envtl. L. Rev. 57, lexis) ExtinctionHelfand and Pastore 9 (Ira Helfand, M.D., and John O. Pastore, M.D., are past presidents of Physicians for Social Responsibility, 3/31, "U.S.-Russia nuclear war still a threat", http://www.projo.com/opinion/contributors/content/CT_pastoreline_03-31-09_EODSCAO_v15.bbdf23.html) \ (if time )Undoing the entirety of the national security exemption is key to global warming actionGormley 10 (Neil Gormley, J.D., 2009, Harvard Law School, "Standing in the Way of Cooperation: Citizen Standing and Compliance with Environmental Agreements," Summer 2010, West Northwest Journal of Environmental Law 26 Policy, 16 Hastings W.-N.W. J. Env. L. 26 Pol’y 397) The Supreme Court’s approach to standing, therefore, raises serious questions about the viability Impending US military intervention sparks US-China war in Africa - escalates to full-scale warBodansky 14 (Yossef, Senior Editor, Global Information System / Defense 26 Foreign Affairs, "U.S. interventionism in Africa makes colonialism look progressive, empowers China," Given the changing realities, the U.S. and France are playing with Enforcing NEPA restrictions precludes the use of US military force The United States military establishment is a significant polluter of the air, land, Impact is extinctionLieven 12 (Anatol, Professor in the War Studies Department – King’s College (London), Senior Fellow – New America Foundation (Washington), "Avoiding US-China War," New York Times, 6-12, http://www.nytimes.com/2012/06/13/opinion/avoiding-a-us-china-war.html) Relations between the United States and China are on a course that may one day Irregular Warfighting Training solves the linkDycus 96 The military is prepared for irregular war now and impact unlikely – their authorBennett 2007 ~John T. Defense News, "DoD: Force Planning Built For Irregular, Lengthy Conflicts, Vol. 22 Issue 16, p6-6, And conventional military solves – irregular warfare claims are exaggerated – means there’s only a risk they undermine strategyBorgeson 2012 ~Benjamin, holds an MS in Defense and Strategic Studies, currently enlisted in the U.S. Army, "The Principles of Destruction in Irregular Warfare: Theory and Practice," Small Wars Journal, http://smallwarsjournal.com/jrnl/art/the-principles-of-destruction-in-irregular-warfare-theory-and-practice~~ Minimalism DA – 2AC Economic decline doesn’t cause warTir 10 ~Jaroslav Tir - Ph.D. in Political Science, University of Illinois at Urbana-Champaign and is an Associate Professor in the Department of International Affairs at the University of Georgia, "Territorial Diversion: Diversionary Theory of War and Territorial Conflict", The Journal of Politics, 2010, Volume 72: 413-425)~ No escalationRobert Jervis 11, Professor in the Department of Political Science and School of International and Public Affairs at Columbia University, December 2011, "Force in Our Times," Survival, Vol. 25, No. 4, p. 403-425 Resilient1. No link – plan isn’t a controversial ruling. It has settled precedent to rely on, that’s Donovan 11.2. No impact to minimalism – judges are ideological and the strategy is brokenMcQuillen 12 The Roberts Court’s use of the avoidance canon has been anything but consistent. In 3. No link – if Roberts wants minimalism he will inevitably vote to balance the other justices4. No link – no minimalism on the environment nowSchiff 12 At first blush, Sackett is strongly anti-minimalist. The Court opened the 5. Minimalism doesn’t affect other justicesAnderson 09 The practical significance of minimalism, however, is difficult to ascertain without empirical evidence 6. Court liberalizes over time – no chance Roberts gets more conservativeEgelko 05 (Bob, San Francisco Chronicle Staff Writer, "Will Roberts move left? The ideological migration of other justices is instructive", September 4, 2005, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2005/09/04/INGDDEFONS1.DTL) On the other hand, friends and colleagues of Roberts have described him as open 7. Aff is an impact turn – minimalism is at the root of deference to the military on environmental issuesDorfman 4 (Bridget – J.D. Candidate, 2004, University of Pennsylvania Law School, "PERMISSION TO POLLUTE: THE UNITED STATES MILITARY, ENVIRONMENTAL DAMAGE, AND CITIZENS’ CONSTITUTIONAL CLAIMS", 2004, 6 U. Pa. J. Const. L. 604, lexis) This case indicates that the court’s dismissal of constitutional claims in citizen suits against the 8. No risk of short-term conservative backlash: no test case for those cases, Congress won’t do it, and Obama would veto.Circumvention DA Will comply – even if they disagreeBradley and Morrison 13 Insisting on a sharp distinction between the law governing presidential authority that is subject to Obama supports NEPA agency reviewGoad 26 Kroh 13 — *Manager of Research and Outreach for American Progress’ Public Lands Project AND Deputy Editor of ClimateProgress, worked on the Energy policy team at American Progress as the Associate Director for Ocean Communications (Jessica and Kiley, 4/25/2013, "Using Executive Authority to Account for the Greenhouse-Gas Emissions of Federal Projects," http://www.americanprogress.org/issues/green/report/2013/04/25/61446/using-executive-authority-to-account-for-the-greenhouse-gas-emissions-of-federal-projects/) While Congress has shown no signs that it will take action to address the growing The military will complyGillespie 12 — Prof @ Univ of Waikato, has advised the Ministry of Foreign Affairs and Trade and the Department of Conservation, provides commissioned work for the United Nations and the Commonwealth Secretariat, has been awarded a Rotary International Scholarship, a Fulbright Fellowship, a Rockefeller Fellowship (Alexander, Winter 2012, "ARTICLE: The Limits of International Environmental Law: Military Necessity v. Conservation," 23 COLO. J. INT’L ENVTL. L. 26 POL’Y 1, L/N) Generally, the answer is that the military can be made to comply with laws 1. Legitimacy low – DOMASanchez 13 The 5-4 opinion by the Supreme Court on the Federal Defense of Marriage 2. Legitimacy resilient – single decisions don’t matterGrosskopf 98 (Anke and Jeffrey Mondak, Professor of Political Science – University of Pittsburgh and Florida State University, "Do Attitudes Toward Specific Supreme Court Decisions Matter? The Impact of Webster and Texas v. Johnson on Public Confidence in the Supreme Court", Political Research Quarterly, 51(3), September) Opinion about the Supreme Court may influence opinion about the Court’s decisions, but is | 3/29/14 |
Round 2 UKTournament: Kentucky | Round: 2 | Opponent: Texas Bhattacharjee-Jones | Judge: Hardy Insisting on a sharp distinction between the law governing presidential authority that is subject to While Congress has shown no signs that it will take action to address the growing
While the studies were in progress, the United States Supreme Court found the impact 3. Restrictions” means “regulations” Executive CP – 2AC First, government actors have a need for legal clarity, particularly in national- 3. Congress will roll back the counterplan during a conflict – kills solvency In times of war, the conflict between national-security goals and environmental laws CMR Add-On 2AC U.S. Environmental Laws Serve to Uphold the Longstanding Tradition of Civilian Control At the same time, the military exercises control, to a remarkable degree, A2: Non –Shutdown DA – 2AC With much of the federal government shut down for the fifth day, Congress has GOP Blocks Schroder 10/3/13 (Peter, The Hill, “GOP puts new price on debt hike (Video),” http://thehill.com/homenews/news/326271-gop-puts-new-price-on-debt-hike#ixzz2gh1fRpw7) GOP puts new price on debt hike (Video)¶ Rank-and-file
Dozens of groups have complained to Congress that the military's needs are covered by the 5. Plan’s announced in June Losers lose has already been triggered President Obama has had a tough year. He failed to pass gun legislation. 7. PC not real On Tuesday, in his State of the Union address, President Obama will do PC Fails But this shutdown is different from those in the past. Obama has not been Henry 13 (Emil, former assistant Treasury secretary, January 21st, 2013, “Amid the Debt-Ceiling Debate, Overblown Fears of Default,” http://online.wsj.com/article/SB10001424127887323442804578235970716809666.html) These concerns can be largely addressed by legislation or pre-emptive action by the Whatever happens with regard to Syria, the larger consequence of the president's action will This study started out with two questions. The first was: ?Does war The first and perhaps overarching reason underlying the growth of presidential power is that the 6. Rules during crises don’t hurt flexibility Thus, it also illustrates the truism, profoundly relevant to the war on terror A common justification for deference is that the President possesses superior competence due to expertise | 10/5/13 |
Open Source
| Filename | Date | Uploaded By | Delete |
|---|---|---|---|
2/27/14 | willcaplan@gmailcom |
| |
9/21/13 | shyam115@gmailcom |
| |
9/21/13 | shyam115@gmailcom |
| |
9/22/13 | shyam115@gmailcom |
| |
10/5/13 | willcaplan@gmailcom |
| |
11/4/13 | willcaplan@gmailcom |
| |
11/4/13 | willcaplan@gmailcom |
| |
10/5/13 | willcaplan@gmailcom |
| |
10/15/13 | willcaplan@gmailcom |
| |
3/28/14 | willcaplan@gmailcom |
| |
3/29/14 | catestackhousedeb@gmailcom |
| |
3/29/14 | willcaplan@gmailcom |
| |
3/29/14 | willcaplan@gmailcom |
| |
3/29/14 | willcaplan@gmailcom |
| |
11/16/13 | rhshaw03@gmailcom |
| |
2/13/14 | willcaplan@gmailcom |
| |
2/13/14 | willcaplan@gmailcom |
| |
2/13/14 | willcaplan@gmailcom |
| |
2/13/14 | willcaplan@gmailcom |
| |
1/6/14 | willcaplan@gmailcom |
|
Tags:
Environmental
hostilities
Created by Tucker Boyce on 2013/09/10 18:33
Quick Links
Schools
Air Force
Amherst
Appalachian State
Arizona State
Army
Augustana
Bard
Baylor
Binghamton
Boston College
Capital
CSU Long Beach
CSU Northridge
CSU Sacramento
CUNY
Cal Berkeley
Cal Lutheran
Cal Poly SLO
Case Western
Central Florida
Central Oklahoma
Chico
Clarion
Columbia
Concordia
Cornell
Dartmouth
Denver
Drexel-Swarthmore
ENMU
East Los Angeles College
Eastern Washington
Emory
Emporia
Fayetteville State
Florida
Florida Int'l
Florida State
Fordham
Fresno State
Fullerton
Gainesville State
George Mason
George Washington
Georgetown
Georgia
Georgia State
Georgia Tech
Gonzaga
Harvard
Houston
Idaho State
Illinois
Illinois State
Indiana
Iowa
Irvine/SFSU
James Madison
John Carroll
Johns Hopkins
Johnson County CC
KCKCC
Kansas
Kansas State
Kentucky
LA City College
Lakeland
Lewis-Clark State College
Liberty
Lindenwood
Los Rios
Louisville
Loyola
Macalester
Marist
Mary Washington
Mercer
Methodist
Miami FL
Miami OH
Michigan
Michigan State
Minnesota
Mission
Missouri State
NYU
Navy
New School
North Texas
Northern Iowa
Northwestern
Notre Dame
Ohio Wesleyan
Oklahoma
Oregon
Pepperdine
Piedmont
Pittsburgh
Portland State
Princeton
Puget Sound
Redlands
Richmond
Rochester
Rutgers
Samford
San Diego State
San Francisco State
Santa Clara
South Florida St Pete
Southern Methodist
Southwestern
Stanford
Texas State
Texas-Austin
Texas-Dallas
Texas-San Antonio
Texas-Tyler
Towson
Trinity
U Chicago
UCLA
UDC-CC
UMKC
UNLV
USC
Utah
Vanderbilt
Vermont
Virginia Tech
Wake Forest
Wash U (St. Louis)
Washburn
Washington
Wayne State
Weber
West Georgia
West Virginia
Western Connecticut
Whitman
Wichita State
Wisconsin Oshkosh
Wyoming