The Law on What Documents Scientists Must Keep and Disclose

Recently, several climate scientists have received demands to produce their raw data, working notes, e-mails, letters, or other communications. These demands may come in the form of subpoenas, U.S. Freedom of Information Act (FOIA) requests, or requests during litigation. Below are some general guidelines for scientists about complying with their document retention and disclosure obligations, both as a matter of routine practice and in the event of legal action. This article concerns only U.S. laws and is not legal advice, which should be sought from the scientist\u27s lawyers or those of his or her employer

NEPA and Downstream Greenhouse Gas Emissions of U.S. Coal Exports

As U.S. coal exports increase and new infrastructure is proposed to improve access to burgeoning markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review. The National Environmental Policy Act of 1969 (NEPA) sets out an assessment process that applies to many Federal agency actions relating to coal export, including the grant of leases for coal mines, approval for new railway construction and the grant of permits for coal export terminals. Under NEPA, an environmental impact statement (EIS) must be prepared for any major Federal action significantly affecting the quality of the human environment. This includes direct, indirect and cumulative effects. The question of which indirect consequences of an action should be considered, and how far the review extends into upstream or downstream effects, is essentially a question of causation. Where a downstream event, such as the export and end-use of coal, is a reasonably foreseeable consequence of an action or there is a reasonably close causal relationship, then those downstream effects are within the scope of NEPA review. The greatest challenge in evaluating greenhouse gas (GHG) emissions under NEPA is determining when they are likely to have a “significant” impact on the environment. Climate change is a highly complex problem, and the GHGs emitted by any single project are unlikely to have a substantial impact on global atmospheric concentrations of carbon dioxide. Thus, agencies need to consider the cumulative impacts of these projects -- as required by NEPA -- and their relative contribution to climate change

Sound and fury: assessing the steps to safeguard regulatory autonomy in the drafting of contemporary international investment agreements

© 2018 Dr Elizabeth Anne SheargoldThere has been growing concern in recent years that international investment law, and its enforcement through investor-state dispute settlement, interferes with the regulatory autonomy of host states to enact measures for the protection of public health, the environment or other public interests. The approaches taken by investment treaty arbitrators to the consideration of regulatory purpose have been varied and inconsistent. Some tribunals have not acknowledged the relevance of the non-economic purpose of a measure, others have gone so far as to employ strict proportionality analysis to assess the merits of a measure, while other tribunals have adopted relatively lenient tests for assessing the legitimacy of social policy measures, requiring only a basic level of rationality or reasonableness. To address both public concern and the inconsistent decisions of arbitral tribunals, the parties to many contemporary international investment agreements have incorporated specific clauses in their agreements to create flexibility and protect policy space. Based on an examination of international investment agreements concluded between 2010 and 2015, the thesis evaluates the use and impact of five prevalent categories of flexibility clauses: carve-outs and non-conforming measures provisions; clarification of substantive obligations; general exceptions; preambular references to non-economic objectives; and ‘right to regulate’ provisions. The thesis analyses each of these kinds of provision and assesses their efficacy as tools to protect regulatory autonomy. Two core arguments are presented. First, the flexibility clauses that have most commonly been adopted offer only modest protection of regulatory autonomy in relation to social policy measures. The clauses adopted typically leave tribunals with considerable discretion in their application, or where the provision does specify an applicable method of review it is usually relatively stringent, such as necessity testing or strict proportionality analysis. Consequently, with regard to areas such as health and environmental policy, contemporary investment agreements entrench moderate approaches to regulatory space, rather than significantly rebalancing investor protection and the rights of host states. Second, the thesis identifies several ways in which the drafting of recent international investment agreements mirrors aspects of international trade law, demonstrating a degree of convergence between how these two fields of international economic law address the issue of regulatory autonomy. Some aspects of this convergence are positive contributions to regulatory autonomy, such as setting out more balanced purposes in the preambles of treaties or reaffirming the parties’ right to regulate for environmental protection, labour rights or other goals. However, it is argued in the thesis that transplanting approaches from the World Trade Organization agreements or preferential trade agreements into international investment agreements is not necessarily an effective means to preserve policy space and regulatory freedom

NEPA and Downstream Greenhouse Gas Emissions of U.S. Coal Exports

As U.S. coal exports increase and new infrastructure is proposed to improve access to burgeoning markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review. The National Environmental Policy Act of 1969 (NEPA) sets out an assessment process that applies to many Federal agency actions relating to coal export, including the grant of leases for coal mines, approval for new railway construction and the grant of permits for coal export terminals. Under NEPA, an environmental impact statement (EIS) must be prepared for any major Federal action significantly affecting the quality of the human environment. This includes direct, indirect and cumulative effects. The question of which indirect consequences of an action should be considered, and how far the review extends into upstream or downstream effects, is essentially a question of causation. Where a downstream event, such as the export and end-use of coal, is a reasonably foreseeable consequence of an action or there is a reasonably close causal relationship, then those downstream effects are within the scope of NEPA review. The greatest challenge in evaluating greenhouse gas (GHG) emissions under NEPA is determining when they are likely to have a “significant” impact on the environment. Climate change is a highly complex problem, and the GHGs emitted by any single project are unlikely to have a substantial impact on global atmospheric concentrations of carbon dioxide. Thus, agencies need to consider the cumulative impacts of these projects -- as required by NEPA -- and their relative contribution to climate change

In Search of Relevant Discretion: The Role of the Mandatory/Discretionary Distinction in WTO Law

When deciding whether a general rule is inconsistent with the law of the World Trade Organization (WTO), a distinction has been drawn between rules that 'mandate' violations of WTO law, and rules that provide the 'discretion' to violate WTO law. Measures that include a discretionary element have, under the 'mandatory/discretionary distinction', been saved from a finding that they are 'as such' WTO-inconsistent. This article explores how the mandatory/discretionary distinction has been developed and applied in WTO law. It also questions the sharp divide between 'mandatory' and 'discretionary' measures that is implied by the distinction; and it argues that discretion comes in different forms, which should not all have the same relevance when assessing the WTO-consistency of rules. The article proposes a basic taxonomy involving three different types of discretion: the discretion to adopt or withdraw rules; the discretion to apply or not apply rules; and the discretion to select meaning through the interpretation and application of rules. For each category, the article offers views on the relevance of that type of discretion in examining the WTO-consistency of a general rule. Oxford University Press 2010, all rights reserved, Oxford University Press.

Global Governance: The World Trade Organization\u27s Contribution

Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws be administered “in a uniform, impartial and reasonable manner.” This obligation was recently considered by the Appellate Body, but uncertainty remains about the scope this provision has to permit WTO panels to review domestic administrative practices. In relation to the WTO’s contribution to democracy, this article first considers the challenges and limitations of the current system of decision making within the WTO and compares it to democratic theory. Second, it examines how democracies comply with the findings of WTO dispute settlement tribunals and how compliance could be improved. It concludes by speculating on the implications of this discussion for public international law more broadly