Current Issue

  • Volume 26,
  • Number 1 -
  • Fall 2015


Adapting Human Rights
Rhett B. Larson

Governmental leaders, scholars, and activists have advocated for human rights to food, water, education, health care, and energy. Such rights, also called positive rights, place an affirmative duty upon the state to provide a minimum quantity and quality of these goods and services to all citizens. But food, education, water, and health care are so different–in how they are produced, consumed, and financed–that the implementation of a positive right must be adapted to the distinctive characteristics of the good or service it guarantees. The primary aims of
this adaptive implementation are transparency, enforceability and sustainability in the provision of positive rights. Only by adapting a positive right to its policy environment can such a right function as a viable means of protecting disadvantaged members of society. This article uses the example of positive rights to public utilities, such as water and energy, to illustrate adaptive implementation of positive rights. In doing so, this article explains why and how a positive right must be adapted to the unique policy environment of a given public utility.

Toward a Global Regime of Vessel Anti-Fouling
James Kraska & Daniel Rittschof

Vessel anti-fouling is key to the efficient operation of ships, and essential for effective control of invasive species introduced through international shipping. Anti-Fouling Systems, however, pose their own threats to marine environments. The Anti-Fouling Convention of 2001 banned the use of organotin compounds such as Tributyltin, and created a system for adoption of alternative anti-fouling biocides. In 2011, the Marine Environmental Protection Committee of the International Maritime Organization (IMO) released guidelines on bio-fouling management record keeping, installation, inspection, cleaning, maintenance, design and construction. Though these Guidelines provide a template for more effective and environmentally sound anti-fouling control and implementation, they are not mandatory. This article proposes that the member states of the IMO adopt the 2011 Guidelines as a mandatory instrument.

Judicially Modified Democracy: Court and State Pre-Emption of Local GMO Regulation in Hawaii and Beyond
Rita Barnett-Rose

The federal framework for regulating genetically modified organisms (GMOs) has long been criticized as fragmented and inadequate to protect against various health, environmental, and economic concerns. Yet, despite having the legal authority to augment the federal framework, the overwhelming majority of states have failed to enact any substantive legislation governing GMOs at the state-level. In the wake of this regulatory vacuum, a small but growing number of local governments have attempted to regulate GMOs locally. However, local GMO regulations face significant challenges by the GMO industry, which has sought to undo local regulatory authority both through the courts and through industry lobbying of state legislators to expressly pre-empt local regulation. Today, roughly 17 states have now expressly pre-empted local authority to regulate GMOs, largely due to industry influence.

Hawaii is a high-stakes battleground for the genetically modified debate, and in 2013-2014, three local counties—Maui County, Hawaii County, and Kauai County—all attempted to regulate GMOs at the local level. Although the counties purportedly had broad statutory authority to regulate to protect local health, life, and property, as well as conservation obligations under the Hawaii Constitution, the local GMO ordinances were quickly challenged in court by the GMO industry and soon invalidated by the federal district court in Hawaii on novel state and federal pre-emption grounds.

As the very first local GMO regulations struck down on state and federal pre-emption grounds, the Hawaii pre-emption decisions will likely have a significant adverse impact on local GMO regulation across the country if allowed to stand. This article argues that the recent pre-emption decisions were wrongly decided under traditional pre-emption principles, and further argues that in the absence of state or federal comprehensive regulatory schemes sufficient to address mounting health, environmental, and economic concerns, courts and states should refrain from denying local authority to regulate GMOs. Permitting local regulation of GMOs not only fosters and supports legitimate local democracy, but it may also be what is most needed to find innovative solutions to acknowledged GMO risks and realities.

Climate Change in the Courts: An Assessment of Non-U.S. Climate Litigation
Meredith Wilensky

As the impacts of a warming climate system become more apparent and countries across the globe begin to implement mitigation and adaptation measures, the issue of climate change has increasingly arisen in litigation. While there has been substantial literature examining how the issue of climate change has manifested in U.S. courts, this article is the first large-scale assessment of climate change litigation outside the United States. Based on an empirical study of all reported non-U.S. litigation, this article discusses what types of claims have arisen; how climate litigation varies by jurisdiction; who the key players are; and what their primary goals are. Drawing upon these findings, this article assesses how courts have dealt with the issue of climate change and the role litigation is playing in the formation of climate change policy.

This comprehensive assessment reveals that climate change litigation is almost entirely concentrated in five jurisdictions: Australia, New Zealand, the European Union, Spain, and the United Kingdom. The nature of these suits varies widely across jurisdictions, reflecting each jurisdiction’s unique legislative and regulatory framework, energy portfolio, and legal system. Generally, however, non-U.S. climate change cases have mostly been tactical suits aimed at specific projects or details regarding implementation of existing climate policies, especially emissions trading systems. In examining climate change jurisprudence, this article finds that the courts accept the scientific consensus surrounding climate change and tend to treat climate change much like any other environmental issue.


When Science and the Statute Don’t Provide an Answer: Hybrid Species and the ESA
Oliver Frey